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.
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.
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.
The Court dismissed Wrigley Done Right’s tortious interference claim because the parties were competitors and defendants only engaged in protected competitive behavior.