VitalGo, Inc. v. Kreg Therapeutics, Inc., No. 16 C 5577, Slip Op. (N.D. Ill. Mar. 27, 2019) (Dow, J.).

Judge Dow granted in part defendant Kerg’s Fed. R. Civ. P. 12(b)(6) & 12(f) motion to strike portions of plaintiff VitalGo’s Second Amended Complaint (SAC) and to dismiss VitalGo’s claims with prejudice in this Lanham Act and copyright case related to Kreg’s Catalyst Lift Bed products.

Of particular note, the Court held as follows:

  • The Court struck those portions of VitalGo’s SAC that related to the Total Lift Bed, not Kreg’s Catalyst Lift Bed. The Court previously dismissed the claims related to the Total Lift Bed.
  • Res judicata did not bar claims regarding the Catalyst Lift Bed because Kreg did not begin selling that bed until 2014, after the first complaint was filed in 2011. Striking the portions of the SAC addressing the Total Lift Bed resolved any res judicata issues.
  • VitalGo’s 2011 knowledge that Kreg was developing a new bed coupled with VitalGo’s knowledge of Kreg’s marketing of VitalGo’s Total Lift Bed did not create bar claims about how Kreg marketed the new bed beginning in 2014.
  • Judicial estoppel did not bar VitalGo’s claims because VitalGo was not arguing that Kreg could not sell the Total Lift Beds. Instead, VitalGo argued that Kreg could not use VitalGo’s intellectual property to market Kreg’s Catalyst Bed.
  • VitalGo met its Rule 9(b) heightened pleading standard regarding its Lanham Act false designation claim by alleging that Kreg marketed its Catalyst Bed in a way that could lead consumers to believe it was the Total Lift Bed or related to that bed.
  • VitalGo’s fraud claim was insufficiently pled. VitalGo’s allegations that Kreg advertised that its Catalyst Bed had VitalGo’s patented features were “implausible.” Kreg’s Catalyst Bed did not have a required footboard scale or movable foot support, which were required by VitalGo’s patent claims.