APPEAL from the Circuit Court of Du Page County; the Hon.
WILLIAM V. HOPF, Judge, presiding.
MR. JUSTICE RECHENMACHER DELIVERED THE OPINION OF THE COURT:
The plaintiff appeals from the trial court's order dismissing its complaint in an action for damages and injunctive relief arising out of alleged unfair competition and deceptive trade practices.
1 The amended complaint is in two counts count I being for money damages based apparently on the common law tort of unfair competition and count II for damages and injunctive relief based on the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1975, ch. 121 1/2, par. 311 et seq.). This Act is generally considered to have codified the common law tort of unfair competition. (Mars, Inc. v. Curtiss Candy Co. (1972), 8 Ill. App.3d 338.) The specific complaint of the plaintiff here is that the defendant caused a likelihood of confusion or misunderstanding as to the source of goods, citing section 2(2) of the Uniform Deceptive Trade Practices Act, which reads as follows:
"A person engages in a deceptive trade practice when, in the course of his business, vocation or occupation, he:
(2) causes likelihood of confusion or of misunderstanding as to the source, sponsorship approval or certification of goods or services; * * *."
The following circumstances are alleged to have constituted the defendant's deceptive trade practice. The plaintiff is an envelope manufacturer and the defendant is also developing a business in that field. The defendant gets out a house magazine called the Boise Cascade Quarterly and in the May 1976 issue of this magazine there was an article about color-coded envelopes discussing their development and use in connection with medical records. The article was accompanied by a photograph which showed a hospital technician inspecting an envelope. Under the photo was the caption "A technician in a Chicago hospital holds a color-coded envelope designed by Boise Cascade." Actually, the envelope depicted in the photo had been designed and sold by the plaintiff, not by Boise Cascade. The plaintiff claims this was deliberate and deceptive and amounted to unfair competition as to the source of its product and was therefore a violation of that section of the Uniform Deceptive Trade Practices Act set forth above.
The plaintiff filed its complaint in August 1976 and an amended complaint in November 1976. The defendant filed a motion to dismiss the amended complaint and the plaintiff then amended its complaint and filed a second amended complaint in which it asked not only for damages and an injunction to restrain the defendant from "further distributing any false claims or photographs relating to plaintiff's color-coded envelopes' system and from claiming same as its own," but also praying that the defendant be requested to publish a retraction admitting the falsity of its photo and the caption.
The defendant in its February 1977 issue of Boise Cascade Quarterly did publish a statement admitting the caption of its photo in the May 1976 issue was in error and stating the envelopes shown were not manufactured by Boise Cascade and expressing regret for the error. It also filed its motion to dismiss the second amended complaint for failure to state a claim upon which relief could be granted.
After considering the briefs of counsel opposing and supporting such motion, the court dismissed the complaint "with prejudice and without leave to amend." It is from that order that the plaintiff appeals. The plaintiff's brief suggests in its form a distinction between the common law tort of unfair competition and a course of action based on the Uniform Deceptive Trade Practices Act, and we are not inclined to dispute that there may be a cause of action under certain aspects of the common law which are not covered by the Uniform Deceptive Trade Practices Act. However, the plaintiff does not set out in its brief a distinct theory under the common law which would entitle it to judgment separate and apart from issues cognizable under the Uniform Deceptive Trade Practices Act, and as the plaintiff admits in its brief, while over the years "the courts> of Illinois and other states have consistently expanded and developed the scope of this tort * * * the case law which has come out of this development has not spelled out in well defined terms the elements necessary to state a cause of action for unfair competition."
It was no doubt for this reason that the legislature enacted the Uniform Deceptive Trade Practices Act which, as the plaintiff acknowledges in its brief, "was quickly recognized by the courts> of Illinois as being a codification of the common law tort of unfair competition." Since the plaintiff's brief does not point out any aspect of this case which constitutes a separate common law tort, in addition to the allegations of violation of the Uniform Deceptive Trade Practices Act, we are not inclined to search out the ramifications of a common law action, which might establish grounds for relief in addition to the elements of unfair competition recognized under the Act. We are inclined, therefore, as did the trial court, to consider the sufficiency of the complaint on the basis of the Uniform Deceptive Trade Practices Act.
Under the Act it appears to us that only section 2(2) can be logically claimed to apply to the facts of this case, that is, that the conduct of the defendant "causes likelihood of confusion or of misunderstanding as to the source, sponsorship approval or certification of goods or services." Section 3 of the Act, of course, provides for injunctive relief:
"A person likely to be damaged by a deceptive trade practice of another may be granted an injunction against it in accordance with the principles of equity and upon terms that the court considers reasonable. Proof of monetary damage, loss of profits or intent to deceive is not required." (Ill. Rev. Stat. 1975, ch. 121 1/2, par. 313.)
As to an injunction, however, this seems unnecessary since the defendant has already published an acknowledgment of its error and expressed regret for it. The nature of the publication in which the article appeared a trade journal issued only quarterly does not suggest a commercial motive or even a deliberate act and from the nature of the incident there is no reason to suppose that there is a threat of future misrepresentation of this sort which should be enjoined. The defendant, having admitted its error, would hardly be in a position to continue a course designed to exploit the original erroneous caption and we see no error in rejecting the prayer for injunction against repeating what the defendant admits was a mistake on its part.
2, 3 We limit our consideration of the complaint to the issue raised by the photo, since it appears to us that only the allegation with regard to the effect of the misleading caption in the photo is both substantial and relevant to the question of unfair competition. That issue is as indicated above, the "likelihood of confusion or of misunderstanding as to the source, sponsorship approval or certification of goods ...