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RECREATION SERVS. v. ODYSSEY FUN WORLD

February 3, 1997

RECREATION SERVICES, INC., Plaintiff,
v.
ODYSSEY FUN WORLD, INC., ODYSSEY FUN WORLD LIMITED PARTNERSHIP, and INTER-CONTINENTAL REAL ESTATE & DEVELOPMENT CORP., Defendants.



The opinion of the court was delivered by: SHADUR

 In this service mark infringement case Odyssey Fun World, Inc., Odyssey Fun World Limited Partnership and Inter-Continental Real Estate & Development Corp. (collectively "Odyssey") have moved under Fed. R. Civ. P. ("Rule") 9(b) and Rule 12(b)(6) to dismiss Count V of the Complaint filed against them by Recreation Services, Inc. ("Recreation"). That count is advanced under Section 2 of the Illinois Consumer Fraud and Deceptive Business Practices Act ("Fraud Act" *fn1" ), 815 ILCS 505/2. For the reasons set forth in this memorandum opinion and order, Odyssey's motion to dismiss is denied.

 Facts

 Recreation is in the business of providing amusement center services comprising game arcades, rides, children's party facilities and other amusements at two locations in northern Illinois under the service marks GREAT ODYSSEY FAMILY FUN CENTERS and THE GREAT ODYSSEY Family Fun Centers and Design (collectively "Great Odyssey"). Recreation began using those marks in 1991 in northern Illinois and obtained federal registrations on April 18, 1995.

 After Recreation's GREAT ODYSSEY facilities were already in operation, Odyssey opened a family amusement center in northern Illinois offering the same types of services under the name and mark ODYSSEY FUN WORLD. Recreation protested the use of that mark as infringing Recreation's rights in its own GREAT ODYSSEY marks, but Odyssey has continued its use of the ODYSSEY FUND WORLD mark. Complaint P 7 alleges on information and belief that Odyssey is threatening to open one or more additional amusement centers in northern Illinois using the ODYSSEY FUN WORLD mark.

 After receiving Recreation's protest, Odyssey sought and obtained a state service mark registration for the ODYSSEY FUN WORLD mark here in Illinois. It has also applied for federal registration.

 Recreation alleges that Odyssey's use of the ODYSSEY FUN WORLD mark has caused actual confusion as well as posing the likelihood of further confusion, impairing Recreation's effective use of its own GREAT ODYSSEY service marks. In addition to its Lanham Act claims that support federal jurisdiction, Recreation's supplemental jurisdiction claims (see 28 U.S.C. § 1367(a)) include the Count V claim now under attack by Odyssey.

 Rule 12(b)(6) Motion

 On Odyssey's Rule 12(b)(6) motion all well-pleaded allegations in the Complaint must be credited, with all possible inferences drawn in Recreation's favor (see, e.g., Sherwin Manor Nursing Center, Inc. v. McAuliffe, 37 F.3d 1216, 1219 (7th Cir. 1994)). Dismissal is proper only if it is clear from the Complaint that no set of facts consistent with its allegations would entitle Recreation to relief. ( Hishon v. King & Spalding, 467 U.S. 69, 73, 81 L. Ed. 2d 59, 104 S. Ct. 2229 (1984), citing Conley v. Gibson, 355 U.S. 41, 45-46, 2 L. Ed. 2d 80, 78 S. Ct. 99 (1957)).

 Fraud Act § 2 provides:

 
Unfair methods of competition and unfair or deceptive acts or practices, including but not limited to the use or employment of any deception, fraud, false pretense, false promise, misrepresentation or the concealment, suppression or omission of any material fact, with intent that others rely upon the concealment, suppression or omission of such material fact ... in the conduct of any trade or commerce are hereby declared unlawful whether any person has in fact been misled, deceived or damages thereby.

 Odyssey claims that Recreation has failed to plead all essential elements of a claim under that statute. Specifically it contends that Recreation has failed to plead that Odyssey intended Recreation to rely upon the alleged deceptive practice, that Recreation's Count V allegation of damage is conclusory and that there is no private cause of action for an injunction under the Fraud Act.

 That last contention is swiftly dispatched, for a 1991 amendment to the Fraud Act expressly permits a private cause of action for an injunction (815 ILCS 505/10a(c)). It is really irresponsible (and indeed deceptive) for Odyssey's counsel even to have made that argument, citing a single 1990 case to that effect (Mem. 4-5) -- not only the statute itself, but also a 1995 Illinois case that counsel themselves have cited just before citing the 1990 case (Mem. 4), disclose the baselessness of Odyssey's position. Recreation's request for injunctive relief in Count V is entirely proper.

 Next, Odyssey's initial argument -- that Recreation has failed to allege that Odyssey intended Recreation to rely on the alleged deceptive practice -- fares no better. To be sure, Siegel v. Levy Org. Dev. Co., 153 Ill. 2d 534, 607 N.E.2d 194, 198, 180 Ill. Dec. ...


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