Aller-Caire, Inc. v. Am. Textile Co., No. 07 C 4086, 2008 WL 4066976 (N.D. Ill. Aug. 28, 2008) (Andersen, J.)
Judge Andersen granted in part and denied in part defendant American Textile Co.’s (“ATC”) Fed. R. Civ. P. 12(b)(6) motion to dismiss plaintiff Aller-Caire’s trademark infringement case. Aller-Caire allegedly began using its ALLER-CAIRE mark in 1990, but never registered it. ATC registered its ALLER CARE mark in 2006. Both use the marks to market, at least, allergy sensitive pillow and mattress encasements. The Court dismissed Aller-Caire’s trademark count with leave to refile because it did not expressly allege a likelihood of confusion. It was not sufficient that the complaint alleged facts sufficient to infer confusion, plaintiff must plead confusion. The Court did not dismiss Aller-Caire’s tortious interference claim. Aller-Caire’s allegations would have been insufficient pursuant to Illinois law because Aller-Caire did not plead that ATC interfered with Aller-Caire’s business expectancy with a specific third party. But federal pleading requirements governed, and did not require identification of an entity.
Finally, a competitor’s privilege did not defeat Aller-Caire’s tortious interference claim. Competition cannot be tortious interference unless the competition employs wrongful means. Aller-Caire’s allegation that ATC’s alleged trademark infringement was done with malice constituted wrongful means.