RBG Plastics d/b/ Restaurantware, LLC v. Sparkles Gift & Party Shop, Inc., No. 24-cv-02155 (N.D. Ill. Sept. 29, 2025) (Valderrama, J.).

Judge Valderrama denied defendants’ motion to dismiss trademark infringement claims but granted dismissal of false advertising and Illinois Consumer Fraud Act (ICFA) claims in this dispute over plaintiff’s RESTAURANTWARE trademark.

As an initial matter, plaintiff RBG Plastics was correct that defendant Sparkles’ Fed. R. Civ. P. 12(c) motion was premature because RBG Plastics had not yet responded to Sparkles’ counterclaims. The Court, therefore, did not hear the Rule 12(c) motion, but following the lead of numerous other courts, it treated the motion as a Fed. R. Civ. P. 12(b)(6) motion and decided it based upon the motion to dismiss standard. Furthermore, while Sparkles’ Rule 12(b)(6) motion was late because it had already answered RBG’s complaint, the Court still decided it because it was already considering the Rule 12(c) grounds under the Rule 12(b)(6) standard.

On the trademark claims, the Court methodically analyzed the seven-factor likelihood of confusion test (except the degree of care factor because neither party addressed it in briefing), finding plaintiff RBG sufficiently pled most factors despite some conclusory allegations. The Court noted that the identical marks, similar products (food service items), and overlapping distribution channels supported confusion. While allegations of actual confusion and intent to “palm off” were conclusory, the Court held this did not defeat the claims at the pleading stage, noting the “fact-intensive analysis” typically required.

The Court rejected defendants’ fair use defense at this stage, stating it would not engage in the fact-intensive analysis fair use requires at the motion to dismiss stage.

However, the Court dismissed the false advertising claim under Rule 9(b)’s heightened pleading standard, finding plaintiff failed to identify any false statement of fact about defendants’ products. The Court distinguished trademark infringement from false advertising, noting the latter requires statements about “the nature, characteristics, qualities, or geographic origin” of goods.

The Court also dismissed the ICFA claim, holding plaintiff lacked standing as it was neither a consumer nor demonstrated the required “consumer nexus” showing market-wide impact.