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MJ & PTNRS. RESTAURANT LTD. PSHP. & 23 FOOD

February 25, 1998

MJ & PARTNERS RESTAURANT LIMITED PARTNERSHIP and 23 FOOD, INC., Plaintiffs,
v.
DAVID ZADIKOFF, Defendant. MICHAEL JORDAN and JUMP, INC., Plaintiff-Intervenors. vs. MJ & PARTNERS RESTAURANT LIMITED PARTNERSHIP and 23 FOOD, INC., Defendants.



The opinion of the court was delivered by: MORAN

 Plaintiff-intervenors Michael Jordan and Jump, Inc. (hereinafter collectively referred to as Jump) have filed a complaint for declaratory judgment, asking this court to find that, under the terms of three agreements, they are entitled to withhold approval of the opening of additional restaurants based on Jordan's name, likeness, voice and persona in the Chicago metropolitan area without having to justify the decision. Jump now moves for summary judgment. For the reasons stated herein, Jump's motion is granted.

 BACKGROUND

 Plaintiff-intervenor Jordan is a resident of Illinois and president of plaintiff Jump, a District of Columbia corporation with its principal place of business in Illinois. Defendant 23 Food, Inc. (23 Food) is an Illinois corporation with its principal place of business in Illinois. Defendant MJ & Partners Restaurant Limited Partnership (MJ & Partners) is an Illinois limited partnership with its principal place of business in Illinois.

 Jump and 23 Food are signatories to a restaurant license agreement dated September 12, 1990 (restaurant license agreement). The agreement granted 23 Food the right to use Jordan's name, likeness, voice, and persona (collectively, Name), and provides in relevant part as follows:

 
Subject to the terms and conditions hereinafter set forth, Jump hereby grants to [23] Food, and Food hereby accepts from Jump, the exclusive right and license in the Chicago metropolitan area (herein defined as in the Cook, Lake, DuPage, Will, Kane and McHenry Counties, Illinois) to use the Name directly or through a partnership, joint venture or other entity of which Food is a partner, joint venturer, owner, or other equity holder (a "Restaurant Entity") to own and operate the Restaurant Business.

 (Jump's 12(M) stmt.exh.A P1). The restaurant license agreement further stated that Jump "will not take any action or enter into any new agreements in the restaurant industry that in any manner violates or interferes with the rights granted to Food by Jump hereunder" (id. at P2).

 Jump and Silverberg Sales, Inc. (Silverberg Sales) are signatories to a store license agreement dated as of September 12, 1990 (store license agreement). Under this agreement, Jump granted Silverberg Sales the right and license to use the Name in connection with the business of owning and operating a retail store located in, about, or within one block radius of "Michael Jordan's Restaurant" (restaurant) (Jump's 12(M) stmt.exh.B P1).

 Joe Silverberg, H. Gene Silverberg (collectively, the Silverbergs), and Jump, are signatories to a letter agreement dated September 12, 1990 (side agreement), that supplements both the restaurant and store license agreements. This agreement stated that

 
in the event [the Silverbergs], directly or through an entity or entities formed by [them], desire to open any additional restaurant based on the Name within [the Chicago metropolitan area] ..., Jump shall have the right to review and approve each additional restaurant opportunity on a case-by-case basis.

 (Jump's 12(M) stmt.exh.C).

 In April 1993, plaintiffs opened the restaurant at the corner of LaSalle and Illinois Streets in Chicago. On November 17, 1997, plaintiffs filed a lawsuit against David Zadikoff (Zadikoff), alleging that Zadikoff, who is the chief executive of the restaurant, violated plaintiff's federal rights conferred under the Lanham Act, and other Illinois state common law rights, by developing and publicizing his intent to open a restaurant in Chicago near the United Center using Jordan's name (cplt. P7). In response, on November 26, 1997, plaintiff-intervenors filed their complaint for declaratory judgment.

 A motion for summary judgment may be granted where the pleadings and evidence present no genuine issues of fact and the movant is consequently entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Renovitch v. Kaufman, 905 F.2d 1040, 1044 (7th Cir.1990). The movant must point to those portions of the record that demonstrate the absence of any genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986). Summary judgment should be entered against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial. Id. at 322. The reviewing court shall draw all reasonable inferences in favor of the non-movant. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 26 L. Ed. 2d 142, 90 S. Ct. 1598 (1970); Bank Leumi Le-Israel, B.M. v. Lee, 928 F.2d 232, 236 (7th Cir.1991). When it is clear that the plaintiff cannot carry her burden of persuasion at trial on one or more elements, summary judgment is appropriate for the defendant. Anderson v. Liberty Lobby, ...


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