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Brewer v. Egyptian Sports

OPINION FILED FEBRUARY 24, 1984.

ROBERT N. BREWER ET AL., PLAINTIFFS AND COUNTERDEFENDANTS-APPELLEES AND CROSS-APPELLANTS,

v.

EGYPTIAN SPORTS, INC., DEFENDANT AND COUNTERPLAINTIFF-APPELLANT AND CROSS-APPELLEE.



Appeal from the Circuit Court of Jackson County; the Hon. Robert Howerton, Judge, presiding.

PRESIDING JUSTICE WELCH DELIVERED THE OPINION OF THE COURT:

The issue in this case is who is entitled to use the name "Prime Time Restaurant * Lounge" in Carbondale. The trial court held that the owner of a restaurant of that name in Mt. Vernon should be protected against use of a similar name by the operator of a restaurant in a sports complex in Carbondale. We agree with that conclusion.

Plaintiff Robert Brewer is the president and majority shareholder of plaintiff America's Best Inns, Inc. That corporation owns motels in East Peoria, Bloomington, Champaign, Mt. Vernon and Marion, Illinois. Some of these have restaurants associated with them, and the motels are advertised under the name "Best Inns of America."

In 1979, Brewer bought an existing restaurant building on land close to the "Best Inns" motel in Mt. Vernon. The restaurant and motel are located near the intersection of interstate highways 64 and 57. Work began to remodel the existing building in late 1979, and in June 1980, Brewer commenced restaurant operations under the name "Prime Time, Restaurant * Lounge." This restaurant has been described as a steakhouse, a full service restaurant and a supper club. It has a dress code, which is "rather loosely defined," it does not serve breakfast, and it often features live entertainment.

Soon after the "Prime Time" restaurant opened in Mt. Vernon, Brewer began to advertise it. In addition to placing advertisements in the Mt. Vernon media, Brewer advertised the restaurant on WSIL-TV, which reaches Carbondale, and in the Southern Illinoisan, a newspaper published in that city. Carbondale is located approximately 60 miles from Mt. Vernon, and the two cities are connected by four-lane highways. Brewer discontinued the television and Southern Illinoisan advertisements shortly after starting them.

In the fall of 1981, Brewer planned to expand his business to Carbondale by building a restaurant and motel on land which he had purchased there in 1979. Brewer contracted for architectural and development services for the Carbondale project, and in March 1982, he applied to the city of Carbondale for industrial revenue bonds to help finance it. That application was approved by the city. Articles appeared in the Southern Illinoisan on the proposed restaurant and motel in May, June, September and October, 1982. Construction of the project began in October of that year.

Gregory Eversden is the president and one-half owner of defendant Egyptian Sports, Inc. (Egyptian). He operates restaurants in Collinsville, Wood River, Godfrey, Carbondale, Harrisburg and Quincy, Illinois. In September 1980, he took over the operation of a bowling alley called the "Carbondale Bowl." Eversden experienced some difficulties with the lessor of the bowling alley, and in January 1981, he started to plan for a new sports center. In June 1982, he acquired a building which contained several tennis courts>.

Eversden intended to convert that property into a recreational center which would feature bowling, tennis, racquetball, weight lifting and a restaurant. Remodeling of the building began in July 1982, and Egyptian was incorporated the following month. Also in August, according to Eversden, he announced to members of bowling leagues to be transferred to the new Egyptian Sports Center from the Carbondale Bowl that the restaurant in the Center would be called "Prime Time." Eversden testified at trial that he ordered the printing of menus with that name on them in September 1982. In rebuttal, the plaintiffs offered the testimony of printer Richard Kramerich. He stated that his publishing firm received an order in September 1982 from someone affiliated with Egyptian, and that order was for menus to be printed with the name "King Tut's" on them. Kramerich explained that no such menus were ever printed, but in November 1982, his firm received an order from Egyptian to print menus with the name "Prime Time" on them.

At trial, Eversden listed his reasons for selecting the name "Prime Time" for the restaurant in the Egyptian Sports Center. First, there is a bowling organization established by the National Bowling Council for senior citizens, the "Prime Timers," and Eversden indicated that this demographic group is the fastest growing population of potential bowlers. Second, the Egyptian Sports Center features different rates for "prime time" and "non-prime time" tennis and racquetball. Finally, all the other restaurants operated by Eversden have names which begin with the letter "p," such as "Papa K's," "Periwinkles," and "Puzzles."

Egyptian applied for a liquor license for its restaurant in August 1982, and Eversden planned to open the restaurant and bowling alley later that month. In fact, the bowling alley was not opened until September, and the liquor license was not issued until September 29. The restaurant was certified by the Jackson County health department on November 29, 1982, and it began service shortly thereafter. On December 3, the restaurant was first advertised in the local media under the name "Prime Time, Restaurant and Lounge." This litigation commenced with the filing of the plaintiffs' complaint for injunctive relief in the circuit court of Jackson County on December 9.

The plaintiffs never registered the name "Prime Time, Restaurant * Lounge" as a service mark in Illinois, although an application for Federal registration was pending at the time of trial in this case. Egyptian filed two applications for Illinois registration of the name. The first of these was prepared on September 24, 1982, but was never filed. The second application was prepared on November 9, 1982, and a certificate of registration was issued by the Secretary of State the following day. Between the preparation of the first and second applications, Eversden was visited at the Sports Center by counsel for the plaintiffs. As they discussed fitness equipment and the other facilities at the center, plaintiffs' counsel learned that Eversden intended to call his restaurant "Prime Time." Plaintiffs' counsel then informed Eversden that his clients were also planning to open a restaurant by that name in Carbondale.

The restaurant operated by the defendant differs from those run by the plaintiffs in some respects. There is no dress code for the restaurant in the sports complex, and indeed many patrons come dressed in exercise garb. Live entertainment is not featured. Nonetheless, the Egyptian Sports Center is located one-half mile from the plaintiffs' new motel and restaurant facilities. Brewer testified in January 1983 that he intended to open his Carbondale restaurant in April 1983. Plaintiffs' brief indicates that the restaurant opened in June of that year.

In the form that it existed at the time of trial, the plaintiffs' complaint included requests for three types of relief. They sought an injunction to prevent the defendant from using the name "Prime Time, Restaurant and Lounge" in the State of Illinois, cancellation of the defendant's Illinois registration of that name and an award of reasonable attorney fees and damages. Egyptian filed a counterclaim for an injunction against the plaintiffs and for attorney fees. Following a bench trial, the court entered judgment memorialized in a thoughtful memorandum. It enjoined the defendant from operating a restaurant and lounge under the name "Prime Time, Restaurant and Lounge," or similar appellation, within the circulation area of the Southern Illinoisan as it existed on May 25, 1982. Egyptian's counterclaim was denied, as were the request to cancel Egyptian's service mark registration and all requests for costs and attorney fees.

Egyptian appeals from this order and argues that although the plaintiffs are entitled to protection of their trade name in the Mt. Vernon area, that protection should not extend to Carbondale. The plaintiffs have filed a cross-appeal in which they assert that the court should have cancelled Egyptian's ...


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