United States District Court, Northern District of Illinois, E.D
April 6, 1959
JOHN MORRELL & CO., PLAINTIFF,
RELIABLE PACKING CO., DEFENDANT.
The opinion of the court was delivered by: Sullivan, District Judge.
This action to recover damages and for an injunction arises
from defendant's alleged misuse of plaintiff's trade-mark. The
first count of the complaint is based on the Federal Trade-Mark
Act, 15 U.S.C.A. § 1051 et seq.; the second count claims unfair
competition; the third count claims a violation of Chapter 140,
§ 22, Ill.Rev.Stat.Ann.
Defendant has moved to strike the third count on the grounds
that it is inconsistent with the other two, apparently on the
theory that the Illinois statute does not apply when the parties
to an action are in competition. It is true that that Act applies
when the parties are not in competition (HMH Publishing Co., Inc.
v. Playboy Records, Inc., D.C.N.D.Ill. 1958, 161 F. Supp. 540).
However, there is nothing in its language restricting it to that
situation. In fact, the clause authorizing an injunction includes
the phrase "notwithstanding the absence of competition between
the parties". This seems to indicate that the legislature feared
that the Act might be applied only to competitive situations and
wished to make sure that both competitive and
non-competitive facts were covered; and the Illinois Appellate
Court has so applied the Act (Adams v. Kassnel, 1958,
16 Ill. App.2d 540, 148 N.E.2d 818).
The defendant's motion to strike Count III of the complaint
will be denied.
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