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Wilton Mor. v. Woolsey-wilton Fun. Home

OPINION FILED JANUARY 6, 1986.

THE WILTON MORTUARY, INC., PLAINTIFF-APPELLEE,

v.

WOOLSEY-WILTON FUNERAL HOME, LTD., DEFENDANT-APPELLANT.



Appeal from the Circuit Court of Peoria County; the Hon. Robert E. Manning, Judge, presiding.

JUSTICE WOMBACHER DELIVERED THE OPINION OF THE COURT:

Defendant Woolsey-Wilton Funeral Home, Ltd. (Woolsey-Wilton), appeals the granting of a preliminary injunction that prohibited it from using the name or mark "Wilton" in connection with its business within a 25-mile radius of Peoria. We reverse.

Richard Wilton, president of Woolsey-Wilton, was fired by plaintiff, the Wilton Mortuary, Inc. (the mortuary), in September 1984. The mortuary had been run by the Wiltons in Peoria since 1884. Richard's father, Ralph Wilton, Sr., died in 1981. Ralph's wife, Lillian, Richard's stepmother, became chairman of the board of the mortuary. Robert Wilton, Richard's half-brother, is the current president of the mortuary, while Ralph, Jr., Richard's other half-brother, is also an employee.

Upon his termination, the mortuary tendered a severance agreement to Richard. The agreement provided for cash payments, insurance, and pension and profit-sharing in exchange for a covenant not to compete in the Peoria area for a six-month period. Richard rejected the offer and looked for other employment.

Richard met with Baird Woolsey and obtained employment with Woolsey's Pekin funeral home. In February 1985, Richard and Baird Woolsey discussed the possibility of creating a new business in Peoria. They found a location on the northwest side of Peoria, some seven miles from the mortuary's location.

On April 29, 1985, the mortuary obtained as a registered trademark "Wilton" to cover various burial items. The mortuary also obtained a registered service mark on the name "Wilton" relating to funeral services. Both the trademark and the service mark were obtained pursuant to "An act to provide for the registration and protection of trademarks, service marks, and trade names * * *" (Trademark Act) Ill. Rev. Stat. 1983, ch. 140, par. 8 et seq.

On April 30, Richard Wilton and Baird Woolsey incorporated their business. Woolsey owns 75% of the stock in the corporation, while Richard Wilton owns 25%. Richard Wilton is the president of the corporation, and Baird Woolsey is the secretary-treasurer. Woolsey-Wilton planned to construct a new funeral home on the earlier-mentioned site. In conjunction with this, a press conference was held to announce the corporation and the new building.

In May, the mortuary made a request of Woolsey-Wilton that they not use the name "Wilton" in connection with the new business. Woolsey and Wilton did not comply with the request. On May 31, the mortuary filed a two-count complaint seeking a declaration of rights and injunctive relief. The claim was based on the alleged confusion with and dilution of the mortuary's service mark.

Upon the mortuary's request for a preliminary injunction, a hearing was held. The injunction issued October 8, 1985, barring Woolsey-Wilton from using the name "Wilton" in regard to its funeral home or services within a 25-mile radius. Woolsey-Wilton brings this interlocutory appeal under Supreme Court Rule 307 (87 Ill.2d R. 307).

• 1, 2 In reviewing a case on a preliminary injunction, we must decide whether there has been an abuse of the trial court's sound discretion in granting or not granting the injunction. (Lonergan v. Crucible Steel Co. of America (1967), 37 Ill.2d 599, 229 N.E.2d 536.) In order to obtain a preliminary injunction, the movant must show the possession of a right which needs protection, irreparable injury without the protection, lack of an adequate remedy at law, and the probability of success on the merits. (U-Haul Co. v. Hindahl (1980), 90 Ill. App.3d 572, 413 N.E.2d 187.) The movant must prove these requirements by a preponderance of the evidence, not such that relief on the merits is warranted, but that the party would probably be entitled to relief if the proof sustains the allegations. (U-Haul Co. v. Hindahl (1980), 90 Ill. App.3d 572, 413 N.E.2d 187.) Substantive issues will be considered as needed to determine the propriety of the trial court's decision. Donald McElroy, Inc. v. Delaney (1979), 72 Ill. App.3d 285, 389 N.E.2d 1300.

The Trademark Act authorizes the circuit courts to issue an injunction in cases where claims of dilution and confusion are made. Thus, an injunction is an appropriate remedy. However, the central issue in this appeal is the mortuary's likelihood of success on the merits. The mortuary's argument is two-fold.

The first claim is made on the allegation that Woolsey-Wilton's use of the name "Wilton" would dilute the distinctive quality of the mortuary's name and mark. This is based on section 15 of the Trademark Act, which reads in pertinent part, "[T]he circuit court shall grant injunctions, to enjoin use by another * * * of any similar mark * * * if there exists a likelihood of dilution of the distinctive quality of the mark * * *." Ill. Rev. Stat. 1983, ch. 140, par. 22.

The second claim is that Woolsey-Wilton's use of "Wilton" would cause confusion, based on section 12 of the Act. That section makes liable one who colorably imitates a mark. The claim is, also, based on section 13, which allows the circuit court to enjoin such use. Ill. Rev. Stat. 1983, ch. 140, pars. 19, 20.

There are several cases pertinent to the present situation to which the parties have directed our attention. The first is Hyatt Corp. v. Hyatt Legal Services (7th Cir. 1984), 736 F.2d 1153. While not dispositive, the Hyatt case provides an instructive analysis of whether dilution exists under the Trademark Act. The court first examined the distinctiveness of the mark, finding the hotel's tradename to be distinct. "Hyatt" was used by the hotel to indicate the source and quality of the service provided. The second examination concerned whether the use of the ...


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