Chicago IP Attorney & Lawyer : R. David Donoghue : Chicago IP Litigation Blog

Allen Bros., Inv. v. AB Foods LLC, No. 06 C 1269, 2008 WL 345600 (N.D. Ill. Feb. 6, 2008) (Andersen, J.).

Judge Andersen granted defendant AB Foods summary judgment of likelihood of confusion and dismissed plaintiff Allen Brothers’ Lanham Act claim and related state law trademark infringement claim. Allen Brothers, a seller of gourmet meats, argued that AB Foods infringed its AB trademark by using it to sell AB Foods’ gourmet meats. The Court held that this was the rare case that was so one-sided as to warrant summary judgment that there was no likelihood of confusion, even though AB Foods uses its AB mark in direct competition with Allen Brothers: 

• The marks were not similar because Allen Brothers always used its full name along with its AB mark;
  
• Allen Brothers’ customers are sophisticated meat purchasers, as evidenced by Allen Brothers’ high prices;
  
• The strength of Allen Brothers’ mark is in its full name, not just AB;
  
• Allen Brothers’ produced no evidence of actual confusion; and
  
• Allen Brothers produced no evidence that AB Foods intended to pass off its meats as Allen Brothers products.

The Court, therefore, granted AB Foods summary judgment and dismissed the case.

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My recent story about Ebert's use of his "Two Thumbs Up" has been receiving a lot of attention (and I even scooped the Sun-Times):

• Likelihood of Confusion -- Ron Coleman agrees with E. Leonard Rubin, interviewed in the Chicago Tribune today, who says that the written "Two Thumbs Up" mark is pretty strong.
  
• Robert Feder of the Chicago Sun-Times -- Feder says that the "Two Thumbs Up" mark is "the most powerful and influential symbol in movie marketing."

The fact that the Patent Reform Act has stalled in Congress, which I discussed earlier this week, has been picked up by several blogs:

• Maryland IP Law Blog -- Citing my post.
  
• Patently-O -- Dennis Crouch says that the Patent Reform Act is not just stalled, it is dead.
  
• 271 Patent Blog -- Leads with a great Simpsons' quote in saying the Act is on hold.

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AutoZone, Inc. v. Strick, __ F. Supp.2d __, 2006 WL 3626770 (N.D. Ill.  Dec. 7, 2006) (Hart, J.).

Judge Hart granted summary judgment for defendants and dismissed all of plaintiffs' claims in this trademark case.  First, the Court did a detailed analysis of each of the seven likelihood of confusion factors and determined that a reasonable jury could not find a likelihood of confusion between plaintiffs' AutoZone mark and defendants' Oil Zone and Wash Zone marks.  The Court found that plaintiffs' mark was strong, but held that there was not great similarity between the marks, that plaintiffs' and defendants' services were not similar, and that there was no evidence of actual confusion or intentional infringement.  As a result, the Court dismissed plaintiffs' trademark infringement and unfair competition claims.

The Court also dismissed plaintiffs' dilution claim.  Defendants argued that plaintiffs could not prove dilution.  Because plaintiffs bear the burden of proof on dilution, plaintiffs were required to rebut defendants' claim.  Instead of providing evidence of actual or likelihood of dilution, plaintiffs stated they "planned" to present circumstantial evidence of dilution, apparently at trial.  But because plaintiffs did not present any such evidence in their responsive papers, the Court dismissed the dilution claim.

Practice tip:  When responding to a summary judgment motion, make sure to respond to each of your opponent's arguments citing to facts that support you.  Without citing facts, it is difficult to raise an issue of fact.

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