Slep-Tone Enter. Corp. v. Teddy O’Brian’s, Inc., No. 14 C 3570, Slip Op. (N.D. Ill. Sep. 24, 2014) (Guzman, J.).

Judge Guzman granted in part plaintiff Slep-Tone’s Fed. R. Civ. P. 12(b)(6) motion to dismiss defendant’s declaratory judgment of trademark invalidity, cancellation, antitrust and related Lanham Act and state law claims in this trademark dispute regarding a design trademark for SOUND CHOICE started by email Slep-Tone.

While plaintiff was required to disclose to the Trademark Office that it established commercial use base upon its third party licensees, it was “impossible” for the Court to determine based upon the limited information available to it whether or not plaintiff made a false representation to the Trademark Office.

The Court also held that defendant sufficiently pled the fraud-related claims pursuant to Fed. R. Civ. P. 9.  Defendant, however, did not sufficiently plead common law fraud because it did not show how it was damaged by the alleged fraud.  The filing of this suit was not sufficient damage.

Defendant’s antitrust claim failed because there were no allegations regarding Slep-Tone’s pricing practices as required for a Section 13(a) claim.

Finally, defendant’s abuse of process claim was dismissed because it lacked an allegation that plaintiff misused the Court’s processes.