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Dayan v. Mcdonald's Corp.

OPINION FILED OCTOBER 29, 1979.

RAYMOND DAYAN, PLAINTIFF-APPELLANT,

v.

MCDONALD'S CORPORATION DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Cook County; the Hon. GEORGE J. SCHALLER, Judge, presiding.

MR. JUSTICE CAMPBELL DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 3, 1979.

This is an appeal by the plaintiff, Raymond Dayan, from an order modifying a preliminary injunction entered on January 17, 1979. The action was originally filed in 1970 in the circuit court of Cook County alleging, inter alia, a breach of an agreement with defendant, McDonald's Corporation, entitling plaintiff to buy certain franchises and to operate certain restaurants in Paris, France. A consent decree was entered in 1971 providing for a master license agreement with a stipulation that Illinois and France would have concurrent jurisdiction of all controversies arising under the agreement. The court retained jurisdiction to enforce compliance with the agreement of the parties.

In March 1978, defendant filed an action against plaintiff in France alleging a breach of the licensing agreement and prayed for a termination of the franchise. On May 12, 1978, a second action was filed against plaintiff in France claiming an infringement of defendant's trademark with respect to a restaurant under construction.

Meanwhile, on June 6, 1978, plaintiff, an Illinois resident, filed a petition in the circuit court of Cook County in the 1970 lawsuit seeking injunctive relief to prevent the termination of operating licenses of the Paris restaurants, and for an order requiring defendant to issue an operating license for the restaurant which was the subject of the trademark infringement suit. Defendant objected on the grounds that the court did not have exclusive jurisdiction and that the same matter was pending in the French courts>. On June 13, 1978, the court granted the preliminary injunction, which order was affirmed on appeal. Dayan v. McDonald's Corp. (1978), 64 Ill. App.3d 984, 382 N.E.2d 55.

On October 24, 1978, defendant filed a motion to dismiss the Illinois action based on forum non conveniens. After a hearing the court denied the motion and entered an order on January 17, 1979, modifying the preliminary injunction previously entered and providing as follows:

"1. The motion to dismiss is denied.

2. The preliminary injunction granted on June 13, 1978 is modified to provide:

a. McDonald's Corporation may proceed to sue in France for termination of its master license agreement and operating licenses in issue in this proceeding and/or for infringement of trademarks, trade names and copyrights.

b. No steps shall be taken by McDonald's Corporation to enforce termination of the master license agreement or existing operating licenses until final disposition of the matters before the courts> of France, and the subsequent concurrence by this court in the decision.

3. This court shall be bound by findings of fact of the French court, and the application of French trademark infringement, trade name and copyright law.

4. This court reserves the right to review the conclusion of the French court solely in its application of Illinois law.

5. The proceedings in this matter in this court are stayed until final disposition before the courts> of France.

6. Defendant, at its expense, shall produce the following individuals at Plaintiff's request as witnesses for pre-trial depositions and at trial: Gerald Ford, James Schindler, Marion Dobrowolski, Paul ...


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