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10/12/88 Coralee Kern, D/B/A Maid v. Wkqx Radio Et Al.

October 12, 1988

CORALEE KERN, D/B/A MAID TO ORDER, ET AL., PLAINTIFFS-APPELLANTS

v.

WKQX RADIO ET AL., DEFENDANTS-APPELLEES



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, THIRD DIVISION

529 N.E.2d 1149, 175 Ill. App. 3d 624, 125 Ill. Dec. 73 1988.IL.1521

Appeal from the Circuit Court of Cook County; the Hon. Thomas J. O'Brien, Judge, presiding.

APPELLATE Judges:

JUSTICE FREEMAN delivered the opinion of the court. McNAMARA and RIZZI, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE FREEMAN

Plaintiffs, Coralee Kern, d/b/a Maid To Order, and Maid To Order, Inc., appeal the trial court's denial of their petition for a temporary injunction seeking to restrain defendants from distributing, showing, or advertising a motion picture entitled Maid To Order. The trial court denied the injunction with regard to counts I, I, and III of plaintiffs' second amended complaint. On appeal plaintiffs contend that the trial court abused its discretion in denying their petition for injunctive relief regarding counts I and II only. Count I seeks injunctive relief under the Illinois trademark act (Ill. Rev. Stat. 1987, ch. 140, par. 22), commonly known as the Anti-Dilution Act. Count II seeks injunctive relief for trademark infringement and also cites the Illinois Anti-Dilution Act.

For the reasons stated below, we affirm the judgment of the circuit court.

Plaintiffs' second amended complaint alleges that plaintiff Kern has been doing business since September 1971 under the name "Maid to Order" in the Chicago metropolitan area, the State of Illinois, and the States of Wisconsin and Indiana, as a maid service providing cleaning services for domestic and business premises. Maid To Order, Inc., initially was incorporated under the laws of Illinois in September 1971 and was reincorporated on July 19, 1987. Since 1971, plaintiff allegedly has expended substantial sums of time and money advertising "Maid To Order" as a trade name. Consequently, the name allegedly has achieved significant recognition in the mind of the general public in Illinois, and the name generally has become associated by the general public with plaintiff's maid service business. Further, during the course of operation of her business, plaintiff allegedly enjoyed virtually exclusive use of the name "Maid To Order" in the Chicago metropolitan area and the State of Illinois.

Plaintiff applied to the United States Patent and Trademark Office for a service mark under the name "Maid To Order" and received a certificate of registration on May 26, 1981. The service mark was registered pursuant to the Trademark Act of 1946 (15 U.S.C. § 1051 et seq. (1982)), commonly known as the Lanham Act. Further, in mid-1986, plaintiff filed an affidavit with the United States Patent and Trademark Office showing that the mark was still in use and that plaintiff was "entitled to continue said mark."

In or about June 1987, defendants, New Century/Vista Film Company (New Century) and the Vista Organization Partnership (Vista), allegedly entered into contracts with movie theaters in the Chicago metropolitan area and the State of Illinois pursuant to which defendants agreed to distribute a motion picture entitled Maid To Order. The motion picture deals with the subject matter of the maid service industry and in particular with the cleaning of domestic premises. In June 1987, counsel for plaintiffs notified defendants of plaintiffs' entitlement for the exclusive use of the name "Maid To Order" and plaintiffs' contention that the story line of Maid To Order was derogatory and injurious to plaintiffs' reputation and business.

Count I of the complaint cites section 15 of the Illinois Anti-Dilution Act (Ill. Rev. Stat. 1987, ch. 140, par. 22), which provides for injunctive relief under certain circumstances against the use of the same or a similar trademark. Count I alleges that on June 20, 1987, defendants New Century and Vista caused to be published in Time magazine an advertisement for Maid To Order which allegedly states, in part, "worse help is hard to find. Maid To Order." Further, plaintiffs allege that the film depicts the actress playing the role of domestic maid in nude scenes and otherwise detracts from the integrity of the maid service profession by depicting the profession in a nonprofessional light.

Count I further alleges that if defendants are allowed to distribute the film in Illinois, plaintiffs will suffer irreparable injury in that the advertising and story line of the film are likely to cause substantial injury to the plaintiffs' business reputation. In addition defendants' use of the name "Maid To Order" allegedly will cause substantial dilution of the distinctive quality of plaintiffs' trade name. Plaintiffs allege that they have no adequate remedy at law and seek injunctive relief restraining defendants from distributing, showing, or offering to show or advertising the film Maid To Order in the State of Illinois.

Count II of the complaint is entitled "Trademark Infringement," and also cites section 15 of the Illinois Anti-Dilution Act (Ill. Rev. Stat. 1987, ch. 140, par. 22). Count II alleges that since at least early June 1987, defendants have advertised the film Maid To Order in local and national publications, including Time, People, and Newsweek magazines, and have made use of the name "Maid To Order" in derogation of the rights of plaintiffs pursuant to their registered trade name. Further, plaintiffs allege that by utilizing the name "Maid To Order" in derogation of plaintiffs' exclusive right to the use of the name in Illinois, defendants will garner substantial profits which otherwise would accrue to the benefit of plaintiffs. Count II seeks injunctive relief restraining defendants from distributing, showing, offering to show, or advertising the film Maid To Order in Illinois.

A hearing on plaintiffs' petition for preliminary injunction was held on July 29 and 30, 1987. Several witnesses testified on behalf of plaintiffs. Philip Kemp, assistant professor of marketing at DePaul University, testified that he met plaintiff Kern at a business meeting in around 1982. Kemp is familiar with Maid To Order, Inc., and has visited the business on numerous occasions in order to discuss with Kern the functioning and marketing of a "home-based" business like Kern's. Kemp was not aware of anyone besides plaintiff using the name "Maid To Order."

Kemp described a television advertisement for Maid To Order which he saw several days before he testified as showing "a very scatterbrained, hairbrained individual running around at home, a luxurious home, that did not appear to know what they were doing, destroying, being destructive, and just chaos." Kemp also described an advertisement for the film appearing in the July 20, 1987, issue of Time magazine. The magazine advertisement showed a person in maid garb "who is being served by her clientele rather than servicing them." Kemp gave his opinion that the advertisement is detrimental to plaintiff's business; dilutes plaintiffs' trade name in the business community where the business operates; and has a possible adverse effect on future business which plaintiffs may obtain. Kemp believed that the advertisement dilutes the type of services plaintiff Kern is attempting to present to "her" public. Kemp bases his opinion on Kern's having established her business in the maid cleaning service in the Chicagoland area as a quality maid cleaning service that people can trust and rely upon when they seek maid cleaning services. Kemp believed that the advertisement would adversely affect Kern's marketing capabilities in that the advertisement states that "worse help is hard to find." The adverse impact upon plaintiff's business is a possible dilution of the opinion of plaintiff's current clients regarding the service plaintiff provides. Further, potential clients may associate the advertisement to the type of service plaintiff provides.

On cross-examination, Kemp admitted that he had not seen the film Maid To Order, nor did he request to view it, even though he was aware that the film was made available to plaintiffs' counsel. When asked regarding a statement in the Time magazine advertisement which read "Ally Sheedy is Jessie Montgomery," Kemp stated that he did not know who Ally Sheedy was, or that she was an actress, or who Jessie Montgomery was. Nor, Kemp stated, did he attempt to find out who the named people were. Counsel for defendants asked Kemp to read from the Oxford American Dictionary the definition of "made-to-order." The definition provides, "made according to specific instructions." Kemp stated his awareness of the use of the phrase in connection with clothes and shoes -- for instance, made-to-order shoes, made-to-order dresses, made-to-order suits. Counsel for defendant also asked Kemp that assuming that Maid To Order is not derogatory to the professional maid ...


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