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KELLER MED. SPECIALTIES PRODS. v. ARMSTRONG MED. I

December 29, 1993

KELLER MEDICAL SPECIALTIES PRODUCTS, Plaintiff,
v.
ARMSTRONG MEDICAL INDUSTRIES, INC., an Illinois Corporation, Defendant.


LEFKOW


The opinion of the court was delivered by: JOAN HUMPHREY LEFKOW

Joan H. Lefkow, Executive Magistrate Judge:

 The complaint alleges Armstrong caused Medical Electronics magazine to incorrectly list Armstrong as the "manufacturer" of Mini-Meters in its December, 1989 and December, 1990 issues. Complaint, Count I, P 12. In addition, the complaint alleges that from mid-April, 1988 to "at least" mid-April, 1989, Armstrong misrepresented it was the "sole" or "exclusive" distributor, and "the only factory authorized testing and repair facility for [Professional] Meters in the United States." Complaint, Count II, PP 11-13. KMSP contends that Armstrong's alleged misrepresentations violated Section 43(a) of the Lanham Act, 15 U.S.C. ยง 1125(a) (Counts I and II); the Illinois common law of unfair competition (Count III); the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/2 (Count IV); and the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2 (Count V), and that KMSP is entitled to an injunction enjoining misrepresentations by Armstrong concerning its status as a manufacturer of Mini-Meters, an accounting of profits and attorney's fees. Armstrong contends that there is no genuine issue of material fact and that it is entitled to judgment as a matter of law because plaintiffs cannot establish their claims under the Lanham Act, the Illinois common law of unfair competition, the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/2, or the Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2. Further, Armstrong contends that even if plaintiff could establish any of its claims, there is no available relief.

 Procedure on Summary Judgment

 Summary judgment obviates the need for a trial where there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c). To determine whether any genuine issue of fact exists, the court must pierce the pleadings and assess the proof as presented in depositions, answers to interrogatories, admissions and affidavits that are part of the record. Fed. R. Civ. P. 56, Notes of Advisory Committee on Rules. The party seeking summary judgment bears the initial burden of proving there is no genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2553, 91 L. Ed. 2d 265 (1986). In determining whether any genuine issue of fact exists, the non-moving party cannot rest on bare pleadings alone but must use the evidentiary tools listed above to designate specific material facts showing that there is a genuine issue for trial. Id. at 324. 106 S. Ct. at 2553. A material fact must be outcome determinative under the governing law.

 Although a bare contention that an issue of fact exists is insufficient to create a factual dispute, Posey v. Skyline Corp., 702 F.2d 102, 105 (7th Cir. 1983), the nonmoving party's evidence is to be believed and all reasonable inferences from the facts must be viewed in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S. Ct. 2505, 2513, 91 L. Ed. 2d 202 (1986); Korf v. Ball State University, 726 F.2d 1222, 1226 (7th Cir. 1984).

 FACTS

 The facts, stated in a light favorable to plaintiff, are as follows:

 From the 1970's through April 12, 1988, Armstrong was the exclusive distributor in the United States of the Meters. *fn2" On or about April 12, 1988, Armstrong received a letter from Clarke International informing Armstrong "of the new arrangements . . . for importing and distributing our . . . products in North America," and stating that the "new arrangements are that [Clement Clarke, Inc.] ("C.C., Inc.") [an American affiliate of Clarke International] will be sole importer and prime distributor for our . . . respiratory . . . products. . . ." and that Clarke International's "plans call for the appointment of additional distributors for respiratory products in North America, and attached are the terms and conditions they will be required to meet." For example, Clarke International required distributors to purchase the Meters in minimum quantities (for which they would receive a wholesale price), to maintain a "testing rig" for Professional Meters and purchase and maintain "an adequate stock of repair and replacements parts. The letter did not terminate Armstrong as a distributor.

 In September, 1988, Armstrong filed suit in this court in the case known as Armstrong Medical Industries, Inc. v. Keller Medical Specialties Products, Inc., No. 88 C 7676, asserting as one of its claims that KMSP had intentionally interfered with its distributorship agreement with Clarke International and that the interference resulted in the termination of the agreement. On December 20, 1989, Judge Hart entered an order in that litigation granting summary judgment to Keller on Armstrong's intentional interference claim. Judge Hart found that the exclusive distributorship agreement was terminable at will and had been properly terminated on April 12, 1988.

 Throughout 1988 and 1989, Armstrong remained a distributor of the Meters in North America and continued to be the only reseller of the Meters who met Clarke International's requirements for a distributorship. Armstrong also has continuously maintained the only factory authorized testing, service and repair facility for Professional Meters in the United States, for which it has maintained an inventory of repair and replacement parts. *fn3"

 Throughout 1988 and 1989, C.C., Inc. sold Meters to other retail outlets which did not meet Clarke International's requirements for distributorship. C.C., Inc. also reserved the right to fill orders itself but did not maintain a sales force or function as a distributor in competition with Armstrong or other resellers.


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