Culver Franchising Sys., Inc. v. Steak ‘n Shake Inc., No. 16 C 72, Slip Op. (N.D. Ill. Aug. 5, 2016) (Feinerman, J.).
Judge Feinerman granted defendant Steak ‘n Shake’s Fed. R. Civ. P. 12(b)(6) motion to dismiss without prejudice plaintiff Culver’s claims that Steak ‘n Shake infringed Culver’s copyrights by copying Culver’s television commercial in Steak ‘n Shake’s Original Steakburger commercial.
While both commercials opened in butcher shops, described using three cuts of meat with good marbling and transitioned to cooking and then assembling the burger, the Court held that the commercials were not substantially similar as a matter of law. Of particular note, the Court held as follows:
- There is nothing unique or protectable about displaying a corporate logo at the beginning or end of a commercial.
- Grilling a burger is not a protectable element of a burger add, noting that at least since McDonald’s 1975 “two all-beef patties, special sauce, lettuce, cheese, . . .” commercial, it was common to show a grilling burger.
- Similarly, talking about marbling and searing is common place in burger commercials, as is pressing down with a spatula on a grilling burger.
- It was not original for a burger commercial to describe the origins of the meat or to show a butcher shop.
- The two commercials also display the meat differently. Culver focuses on all three cuts together, while Steak ‘n Shake shows each cut separately.
- Culver also failed to address the two central cases cited in Steak ‘n Shake’s motion papers. The Court noted that Culver’s omission was a “tacit, yet unmistakable, admission that those two cases are fatal” to Culver.
- The common elements of Culver’s commercial were not arranged in a way to make the combination unique such that it was protectable.
The Court allowed Culver to replead because the Seventh Circuit strongly favors at least one chance to replead. But based upon the Court’s analysis, the Court noted that repleading was likely futile. Furthermore, the Court pointed out that Culver never sought leave to replead or explained what it would add to overcome the issues.