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04/13/94 JACKIE H. PHILLIPS AND DEBRA SUE PHILLIPS

April 13, 1994

JACKIE H. PHILLIPS AND DEBRA SUE PHILLIPS, PLAINTIFFS-APPELLANTS,
v.
DAVID R. COX, DEFENDANT-APPELLEE.



Appeal from the Circuit Court of Jefferson County. No. 92-L-14. Honorable Terrence J. Hopkins, Judge Presiding.

Welch, Lewis, Maag

The opinion of the court was delivered by: Welch

JUSTICE WELCH delivered the opinion of the court:

On July 26, 1983, David R. Cox ("defendant") sold to Jackie H. Phillips and Debra S. Phillips ("plaintiffs") his sign-making business, which included both real and personal property and the nonexclusive right to use the name "David Cox Signs." The contract entered into between the parties did not contain any noncompetition clause. Sometime in April of 1989, defendant opened a new sign-making business next door to the plaintiffs. Defendant named his business: "David R. Cox d/b/a Sign Design and Construction." Defendant also listed his new business in the local telephone book.

On February 21, 1992, plaintiffs filed their initial complaint in the circuit court of Jefferson County seeking, inter alia, injunctive relief. On March 12, 1992, the defendant filed his answer. On March 25, 1992, defendant filed a motion seeking summary judgment or, in the alternative, dismissal. On June 9, 1992, the trial court dismissed plaintiffs' complaint for failing to state a cause of action. On June 29, 1992, plaintiffs filed an amended complaint seeking, inter alia, injunctive relief based upon the Uniform Deceptive Trade Practices Act ("Act") (Ill. Rev. Stat. 1991, ch. 121 1/2, pars. 312(1), 312(2), 312(12), 313 (now 815 ILCS 510/2(1), 2(2), 2(12), 3 (West 1992)).) In relevant part, section 2 of the Act provides:

"A person engages in a deceptive trade practice when, in the course of his business, vocation or occupation, he:

(1) passes off goods or services as those of another;

(2) causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services; [or]

(12) engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.

In order to prevail in an action under this Act, a plaintiff need not prove competition between the parties or actual confusion ormisunderstanding." Ill. Rev. Stat. 1991, ch. 121 1/2, pars. 312(1), (2), (12) (now 815 ILCS 510/2(1), (2), (12) (West 1992)).

In pertinent part, plaintiffs' amended complaint alleged:

"1. Plaintiffs are the joint owners of a certain business known as 'David Cox Signs,' * * *.

2. Defendant * * * is the owner of a business known as 'David R. Cox, d/b/a Sign Design and Construction', located * * * immediately next door to Plaintiffs * * *.

7. Defendant, in addition to naming his business 'David R. Cox, d/b/a Sign Design and Construction', took out a business telephone listing identifying his business as 'David R. Cox'. Further, Defendant prepared and published advertisements to the general public soliciting sign business using the name 'David R. Cox' in connection with said business advertisements. Defendant is in violation of the Uniform Deceptive Trade Practices Act, Ill. Rev. Stats., ch[.] 121 1/2, [par.] 312, subpart (1), (2), and (12), in that: Defendant physically located his business in close proximity to Plaintiffs' business, used a name substantially similar to ...


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