Optics Planet, Inc. v. OpticSale, Inc., No. 09 C 7934, Slip Op. (N.D. Ill. Jul. 14, 2010) (Shadur, Sen. J.).
The Court granted in part Plaintiff Optics Planet’s Fed. R. Civ. P. 12(b)(6) motion to dismiss. Initially, the Court noted that defendants’ tortuous interference with prospective business relationships and with prospective economic advantage were not separate counts, but at most separate theories of recovery for a single court, calling the claims “Tweedledum and Tweedledee.”
But the claims, whether single or multiple counts did not survive the competitor’s privilege. Defendants offered no evidence showing that plaintiff was doing anything except “feathering its own competitive nest”. Defendants’ attempted monopolization claims were also dismissed because there was no evidence that plaintiff did anything but compete, and there was no indication that plaintiff would or could acquire power over market pricing.
Finally, the Court dismissed defendant’s accounting counterclaim to the extent the claim was based upon the dismissed counterclaims.

Continue Reading Different Flavors of Tortious Interference are “Tweedledum and Tweedledee”

OpticsPlanet, Inc. v. OpticSale, Inc., No. 09 C 7934, Slip Op. (N.D. Ill. Jul. 14, 2010) (Shadur, Sen. J.).
Judge Shadur granted in part plaintiff OpticsPlanet’s Rule 12(b)(6) motion to dismiss certain of defendants’ (collectively “OpticSale”) counterclaims in this dispute over trade names. As an initial matter, the Court noted that OpticSale’s tortious interference with prospective business relationships and with prospective economic advantage claims were properly brought as a single federal claim pursuant to Fed. R. Civ. P. 10(b). Furthermore, both counts failed at the hands of the competitor’s privilege. Businesses are free to compete to divert business from their competitors unless, among other exceptions, the competition is solely motivated by spite or ill will. OpticSale made no such allegation in this case. And the Court noted that OpticSale had competed with OpticsPlanet in similar ways.
The Court also dismissed OpticSale’s Sherman Act attempted monopolization claim because there was no indication that OpticsPlanet controlled or could come to control market prices. The Court further noted that the claim improperly sought to turn competition into attempted monopolization.
Finally, the Court dismissed OpticSale’s accounting claim to the extent its scope was reduced by dismissal of the other claims.

Continue Reading Competition Alone Not Enough for Sherman Act or Tortious Interference

BlueStar Management, LLC v. The Annex Club, LLC, No. 09 C 4540, Slip Op. (N.D. Ill. Jul. 12, 2010) (Gettleman, J.).
Judge Gettleman granted in part defendants’ Fed. R. Civ. P. 12(b)(6) and 9(b) motion to dismiss this Lanham Act case. Plaintiff Wrigley Done Right sued defendants, a number of other Wrigley Rooftops and one rooftop owner individually alleging that defendants harmed Wrigley Done Right by falsely advertising the Wrigley Done Right name and excluding Wrigley Done Right from websites and organizations.
Lanham Act
The Court dismissed the Lanham Act claims as to all defendants except the individual defendant and one of his rooftops the Wrigley Rooftop Club. Wrigley Done Right sufficiently pled the who, what, where, when, and why of its claims as to those two defendants. Wrigley Done Right sufficiently pled false designation: 1) defendants sponsored an advertisement showing a picture of Wrigley Done Right linked to the Wrigley Rooftop Club; 2) defendants placed the ad in interstate commerce via the internet; and 3) Wrigley Done Right was harmed by business lost to the ad.
Wrigley Done Right also sufficiently pled false advertising. Wrigley Done Right pled that, for more than a year, defendants provided and advertised the availability of its Ivy League Club despite the fact that it was under construction. Further, the Ivy League Club’s booked reservations during that time diverted sales from Wrigley Done Right. Because the legal inquiry for Wrigley Done Right’s Deceptive Trade Practices Act and Consumer Fraud Act claims involved the same legal inquiry, the motion to dismiss was denied as to them as well.
Sherman Act
Wrigley Done Right’s Sherman Act § 1 claim was dismissed. Wrigley Done Right pled a group boycott of it by defendants which prevented Wrigley Done Right from joining a rooftop association. But Wrigley Done Right did not plead that exclusion from the group would result in serious anticompetitive effects. And Wrigley Done Right pled no lost customers or revenues.
Tortious Interference
The Court dismissed Wrigley Done Right’s tortious interference claim because the parties were competitors and defendants only engaged in protected competitive behavior.

Continue Reading Wrigley Rooftop Dispute: Competition is a Defense to Tortious Interference

Blawg Review #174 is available at D. Todd Smith’s Texas Appellate Law Blog — click here to read it. Smith boldly went without a theme, but it is a great Review, even without a theme. Smith picks up on my coverage of the Seventh Circuit’s recent decision affirming the Northern District’s holding that the NFL is a single entity for IP licensing purposes, as well as related coverage at Sports Law Blog and Blawgletter.

Continue Reading Blawg Review #174

Am. Needle, Inc. v. New Orleans Louisiana Saints, No. 07-4006 (7th Cir. Aug. 18, 2008) (Kanne, J.).*
Judge Kanne, writing for a unanimous panel, affirmed Judge Moran’s opinions holding that the National Football League (“NFL”) acting through its NFL Properties entity was a single entity and, therefore, dismissing plaintiff American Needle’s Sherman Act antitrust claims — click here and here to read the Blog’s post on Judge Moran’s prior opinions in this case. For more than twenty years, NFL Properties licensed American Needle to use various NFL and NFL team trademarks on American Needle’s headwear. American Needle filed this suit after NFL Properties entered an exclusive, ten year license with Reebok, ending American Needle’s license rights. Plaintiff argued that the NFL teams collectively, as well as in concert with Reebok, violated the antitrust laws by acting together through NFL Properties to license their collective intellectual property rights exclusively to Reebok (American Needle argued that the NFL did not violate antitrust laws when it licensed to numerous parties, including American Needle, through NFL Properties).
The Seventh Circuit explained that sports leagues are difficult to classify because they display elements of a single entity, as well as elements of a joint venture made up of independent owners. The Seventh Circuit, therefore, determines whether a sports league is a single entity “one league at a time” and “one facet of a league at a time.” In this case, the NFL was a single entity because for the purpose of promoting its football product — because no one team can stage a game alone. It followed that if the NFL was a single entity for promoting football, it was also a single entity for promoting its product by selling NFL apparel. Additionally, the Court noted that the record established that the NFL teams had been acting as a single entity for IP licensing since 1963.
The opinion’s introductory paragraph is also worth discussing. It is very well crafted, engaging both legal and non-legal readers:
As the most successful and popular professional sports league in America today, the NFL needs little introduction. Indeed, the NFL has inspired countless hours of heated and in-depth discussion about the league’s 88 years of professional-football history, including its great players, championship teams, and memorable games. But the only discussion the NFL inspires here involves aspects of the league that are not as well known: the league’s corporate structure, and the nature of its relationships with its member teams and the entities charged with licensing those teams’ intellectual property.
For another perspective on the opinion, check out the WSJ Law Blog’s post
* Click here to read the Seventh Circuit’s opinion.

Continue Reading Seventh Circuit Affirms: NFL is a Single Entity

Am. Needle, Inc. v. New Orleans, Louisiana Saints, No. 04 C 7806, 2007 WL 4766815 (N.D. Ill. Nov. 19, 2007) (Moran, Sen. J.).
Judge Moran dismissed plaintiff’s remaining antitrust monopolization claim against various NFL entities and the 32 NFL teams.* Despite the fact that the NFL teams were a single entity for licensing purposes,** the NFL team could still be liable for monopolization outside of coordinated licensing efforts . But the alleged monopolization – licensing of defendants’ trademarks – can be done at defendants’ whim without violating antitrust laws based on the NFL’s status as a single entity.
* Congrats to the New York Giants and Michigan Man Amani Toomer on a great Super Bowl victory.
** Click here for the post on that opinion in the Blog’s archives.

Continue Reading Coordinated IP Licensing by Singe Entity is Not an Actionable Monopolization