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CLUB GENE & GEORGETTI L.P. v. LA LUNA ENTERPRISES

June 9, 1995

CLUB GENE & GEORGETTI LIMITED PARTNERSHIP, an Illinois Limited Partnership, Plaintiff,
v.
LA LUNA ENTERPRISES, INC., an Illinois corporation, d/b/a ERIE CAFE; E.J. LENZI, an individual, and TONI LENZI, an individual, Defendants.



The opinion of the court was delivered by: ELAINE E. BUCKLO

 Plaintiff seeks a preliminary injunction barring defendants from using certain advertisements which refer to plaintiff's trademarks. For the reasons stated herein, plaintiff's motion for a preliminary injunction is granted.

 Plaintiff, Club Gene and Georgetti Limited Partnership ("G&G"), owns and operates a restaurant in Chicago named Club Gene & Georgetti ("Gene & Georgetti's"). Gene & Georgetti's was founded in June, 1941 by Gene Michelotti, who owned and operated the restaurant until its sale to G&G in January, 1992. Gene & Georgetti's is one of the oldest and most widely-recognized steakhouses in Chicago, attracting a large number of customers throughout the United States. G&G owns servicemarks registered with the Illinois Secretary of State for the names "Gene & Georgetti," "Club Gene & Georgetti," and "Georgetti."

 Defendants, La Luna Enterprises, Inc., E.J. Lenzi ("Mr. Lenzi"), and Toni Lenzi ("Ms. Lenzi"), own and operate a steak restaurant in Chicago named Erie Cafe. Mr. Lenzi is the grandson of Gene Michelotti. Between 1974 and 1994, Mr. Lenzi worked at Gene & Georgetti's in various capacities. *fn1" In June, 1994, he left his employment at Gene & Georgetti's. At that time, G&G warned Mr. Lenzi not to use G&G's trade names, styles, or dress in connection with any other business venture. In September, 1994, the defendants opened Erie Cafe. *fn2"

 In August, 1994, G&G obtained a copy of an invitation for an Erie Cafe "Preview Party" scheduled for September 7, 1994. The back cover of the invitation read:

 
By re-establishing the historic Erie Cafe, E.J. and Toni Lenzi continue a Chicago tradition of fine dining instituted by E.J.'s grandfather, Gene Michelotti, founder of Club Gene & Georgetti.

 Complaint, Ex. B. In a letter dated September 2, 1994, G&G objected to this language on the ground that it suggested a connection or relationship between the two restaurants. G&G also objected to the defendants' use of Gene & Georgetti's customer list and a menu format which closely resembled that of Gene & Georgetti's, and insisted that the defendants refrain from using or referring to G&G's trade names and styles in connection with its business.

 In April, 1995, G&G learned that the defendants had placed a paid advertisement in "Where" magazine which, for the most part, reiterated the offending language from the party invitation. *fn3" On May 5, 1995, G&G brought this action charging the defendants with violations of the Lanham Trademark Act, 15 U.S.C. § 1125(a); unfair competition; dilution of G&G's intellectual property rights in violation of 765 ILCS § 1035/15; and engaging in deceptive trade practices in violation of 815 ILCS § 510/2. G&G moves for a preliminary injunction barring the defendants from using any advertising or promotional materials containing the foregoing language, which it believes is likely to mislead the public into assuming that the two restaurants are commonly owned or otherwise associated.

 Discussion

 A party seeking a preliminary injunction must demonstrate that (1) it has some likelihood of succeeding on the merits; (2) it has no adequate remedy at law and will suffer irreparable harm if preliminary relief is denied; (3) the balance of relative harms weighs in the movant's favor; and (4) the public interest will not be harmed if the injunction issues. A.J. Canfield Co. v. Vess Beverages, Inc., 796 F.2d 903, 906 (7th Cir. 1986) (citation omitted); Abbott Laboratories v. Mead Johnson & Co., 971 F.2d 6, 11-12 (7th Cir. 1992).

 The Lanham Act protects consumers from deceptive claims about the nature and origin of products and services. Hard Rock Cafe Licensing Corp. v. Concession Services, Inc., 955 F.2d 1143, 1148 (7th Cir. 1992). To prevail on its Lanham Act claim, G&G must show that the advertising and promotional materials at issue are likely to confuse consumers. 15 U.S.C. § 1125(a); A.J. Canfield Co. v. Vess Beverages, Inc., supra, 796 F.2d at 906. A Lanham Act plaintiff has

 
at least three evidentiary routes to prove a likelihood of confusion: (1) Survey evidence; (2) Evidence of actual confusion; and/or (3) Argument based on an inference arising from a judicial comparison of the conflicting marks themselves and the context of their use in the marketplace.

 3 MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION, §§ 23.20[2], 23.01[2] (3d ed. 1994). It is well settled that a plaintiff need not present evidence of actual confusion or a consumer survey to obtain a preliminary injunction. Computer Care v. Service Systems Enterprises, Inc., 982 F.2d 1063, 1070 (7th Cir. 1992); Abbott Laboratories v. Mead Johnson & Co., supra, 971 ...


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