Foodworks USA, Inc. v. Foodworks of Arlington Heights, LLC, No. 10 C 1020, Slip Op. (N.D. Ill. Mar. 19, 2015) (Rowland, Mag. J.).

Magistrate Judge Rowland ruled upon whether it would award defendant damages for its Lanham Act infringement counterclaims regarding the FUEGO marks after dismissing plaintiff’s suit with prejudice for failure to prosecute.

The Court denied damages as to the Lanham Act counterclaims because they did not properly plead plaintiff’s alleged use in interstate commerce.  Defendant offered only attorney argument of use in interstate commerce, even after the Court had cautioned during the proceedings that interstate commerce may not have been properly pled.  Defendant’s evidence offered after the dismissal was too late, and it was not supported by affidavit or other admissible evidence, even if it had been timely.