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DRINK GROUP v. GULFSTREAM COMMUNS.

July 27, 1998

THE DRINK GROUP, INC., Plaintiff,
v.
GULFSTREAM COMMUNICATIONS, INC., DRINK MAGAZINE, LLC., TODD K. HOLMES, AND LOUIS A. AMOROSO, Defendants.



The opinion of the court was delivered by: NORGLE

OPINION AND ORDER

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is Defendants Holmes and Amoroso's Motion to Dismiss. For the following reasons, the motion is granted.

 I. BACKGROUND

 Plaintiff The Drink Group, Inc. holds a U.S. trademark registration number for the trademark "Drink." Plaintiff uses this trademark as the signature name for its restaurant/bar businesses in Chicago, Illinois and Las Vegas, Nevada. Defendants, on the other hand, publish "Drink Magazine," a national periodical, which, in part, provides information about the quality of alcoholic beverages. Defendant Drink Magazine, LLP. holds the supplemental registration mark on the "Drink Magazine."

 On January 7, 1998, Plaintiff filed a complaint against Defendants Gulfstream Communications, Inc., Drink Magazine, LLC, Todd K. Holmes, and Louis A. Amoroso, claiming, among other things, trademark infringement. Plaintiff seeks to hold Defendants Holmes and Amoroso individually liable on the grounds that they were "a principal of and a driving force behind" the allegedly infringing "Drink Magazine." (Compl. at 2.) Plaintiff avers that Holmes and Amoroso incorporated the publication as "Drink Magazine LLC." (Id. at 5.) *fn1" Plaintiff further contends that all "Defendants wilfully continue to market and sell their magazine under its infringing name." (Compl. at 8.)

 Defendants Holmes and Amoroso assert that these allegations fail to establish a cognizable claim under Federal Rule of Civil Procedure 12(b)(6).

 II. DISCUSSION

 For purposes of Rule 12(b)(6), the court must accept all well-pleaded factual allegations as true, and draw all reasonable inferences therefrom in the light most favorable to the plaintiff. Gutierrez v. Peters, 111 F.3d 1364, 1368-69 (7th Cir. 1997). At the same time, however, the court is not required to accept conclusory allegations. Panaras v. Liquid Carbonic Indus. Corp., 74 F.3d 786, 792 (7th Cir. 1996). "'It is true that the Federal Rules of Civil Procedure do not require a plaintiff to set out in detail the facts upon which a claim is based. Nevertheless, a plaintiff must allege sufficient facts to outline a cause of action, proof of which is essential to recovery.'" Stevens v. Umsted, 131 F.3d 697, 700 (7th Cir. 1997) (quoting Ellsworth v. City of Racine, 774 F.2d 182, 184 (7th Cir. 1985)). With these principles in mind, the court turns to whether Plaintiff's complaint contains sufficient allegations to hold Holmes and Amoroso liable in their individual capacities. *fn2"

 The Seventh Circuit, in the seminal case of Dangler v. Imperial Mach. Co., 11 F.2d 945, 947 (7th Cir. 1926), discussed whether corporate officers could be held personally liable for infringement by their corporation:

 
In the absence of some special showing, the managing officers of a corporation are not liable for the infringements of such corporation, though committed under their general direction. . . . It is when the officer acts willfully and knowingly--that is, when he personally participates in the manufacture or sale of the infringing article (acts other than as an officer), or when he uses the corporation as an instrument to carry out his own willful and deliberate infringements, or when he knowingly uses an irresponsible corporation with the purpose of avoiding personal liability--that officers are held jointly with the company.

 Despite the passage of years, Dangler is still the law of this Circuit and cited approvingly by subsequent courts. See Panther Pumps & Equip. Co. Inc. v. Hydrocraft, Inc., 468 F.2d 225, 233 (7th Cir. 1972) (holding officers personally liable only when acting outside the scope of their duties); Weller Mfg. Co. v. Wen Prod., Inc., 231 F.2d 795, 801 (7th Cir. 1956); Cooper Indus., Inc. v. Juno Lighting, Inc., 1986 U.S. Dist. LEXIS 23998, 1 U.S.P.Q.2D (BNA) 1313, 1313-14 (N.D. Ill. 1986); Eversharp, Inc. v. Fisher Pen Co., 204 F. Supp. 649, 676 (N.D. Ill. 1961). *fn3"

 Additionally, Dangler is in accord with the most recent decisions of the United States Court of Appeals for the Federal Circuit. In Hoover Group, Inc. v. Custom Metalcraft, Inc., 84 F.3d 1408, 1411 (Fed. Cir. 1996), the court explained:

 
Acts of a corporate officer that are within the scope of the officer's responsibility are not always sufficient grounds for penetrating the corporate protection and imposing personal liability. The policy considerations that underlie the corporate structure yield to ...

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