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September 11, 1995

TODD NOAH and NOAH'S ART, INC., Plaintiffs,

The opinion of the court was delivered by: KOCORAS

 CHARLES P. KOCORAS, District Judge:

 This matter is before the Court on Defendant Enesco Corporation's ("Enesco") motions for summary judgment on Counts I and II of Plaintiff Todd Noah's et al. ("Noah") complaint. Noah filed cross-motions for summary judgment as to all counts. In Counts I and II of his complaint, Noah sues Enesco for fraud and misappropriation of a trade secret under the Illinois Trade Secret Act. *fn1" For the reasons stated below, the Court grants Enesco's motion for summary judgment on the fraud count, grants Enesco's motion on the misappropriation count and denies Noah's motion for summary judgment as to all counts. *fn2"


 Plaintiff Noah is an artist who created several hand-made figurines called "New Beginnings", based upon his interpretation of the Biblical Noah's Ark story. Unlike the more common depictions of the story, Noah depicted the animals interacting with each other while leaving the ark, ready to make their new beginning after the flood.

 Noah established Noah's Ark, Inc. to market his figurines. Realizing his lack of sophistication and experience in this area, Noah solicited the input and advice of several friends and industry insiders. In addition, Noah alleges that the Precious Moments visitor's center assured him that Precious Moments was not contemplating the production of figurines such as his and ultimately referred Noah to Defendant Enesco. *fn3"

 In December of 1991, Noah contacted Enesco, the country's largest marketer of giftware, in an attempt to negotiate a licensing agreement. During that meeting, the parties signed a non-disclosure agreement in which Enesco agreed in pertinent part:

To prevent disclosure of any artwork product ideas, concepts, data, packaging, and/or samples of products submitted by you [Noah; provided that such]. . . ideas. . . which are previously known to us, possibly even in the process of development by Enesco, or which are in the public domain are not subject to this Agreement.

 Soon thereafter, Enesco sent Noah a draft license. In January of 1992, Noah sent Enesco more detailed figurines. Enesco then shipped his figurines overseas for development of preproduction samples and costing. Pursuant to a written agreement, the parties understood that the decision to license and produce the figurines was at Enesco's sole discretion.

 After the samples were made, Enesco, at Noah's urging, displayed the figurines at its fall 1993 Pre-Show trade show. Enesco's Precious Moments line also introduced its new interpretation of the Noah's Ark story in its "Two by Two" collection at the same 1993 show. The Precious Moments' figurines resembled Noah's "concept", in that they both depicted the animals as an interacting pair, as opposed to individually. Noah contends that the certain characteristics of the Precious Moment's figurines resemble features of his figurines, such as the intertwined giraffe necks.

 Plaintiff Noah's figurines received only minimal customer orders at the trade show, and Enesco advised Noah that it would not pursue a license. Noah alleges that Enesco incorporated his unique concept into their lines, made a large profit from these figurines, and effectively closed him out of the market. As such, Noah filed a four count complaint against Enesco alleging both fraud and the misappropriation of a trade secret. Both parties have filed motions for summary judgment on these counts.


 Summary judgment is available only under limited circumstances. Summary judgment is appropriate if the pleadings, affidavits and other material show "that 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). A genuine issue exists, and summary judgment is therefore inappropriate, if "there is sufficient evidence favoring the non-moving party for a jury to return a verdict for that party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986). A "material fact" exists only if there is a factual dispute that is outcome determinative under governing law. Howland v. Kilquist, 833 F.2d 639, 642 (7th Cir. 1987). The inquiry on summary judgment is whether the evidence presents a sufficient disagreement to require submission to a jury, or whether the evidence is so onesided that one party must prevail as a matter of law. Anderson 477 U.S. at 251-52

 The party seeking summary judgment has the initial burden of showing that no such issue of material fact exists. Id. Moreover, the opposing party is entitled to the benefit of all favorable inferences that reasonably can be drawn from the underlying facts, but not every conceivable inference. ...

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