The opinion of the court was delivered by: Suzanne B. Conlon, United States District Judge.
MEMORANDUMS OPINION AND ORDER
Greenwich Industries, L.P. d/b/a Clarin ("Clarin") sues Specialized Seating, Inc. ("Specialized Seating"), Alfred Hergott ("Hergott") and Don Sanderfur ("Sanderfur") (collectively, "defendants") for trade dress infringement in violation of the Lanham Act, 15 U.S.C. § 1125 (a) (Count I), Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/2 (Count III) and Uniform Deceptive Trade Practices Act, 815 ILCS 510/2 (Count IV) as well as common law unfair competition (Count II). The parties move for summary judgment pursuant to Fed.R.Civ.P. 56.
All facts are undisputed unless otherwise noted. Clarin manufactures and sells seating systems and products, including metal folding chairs. In 1926, Clarin was issued U.S. Patent No. 1,600,248 for a folding chair.*fn1 In 1934, Clarin was issued U.S. Patent No. 1,943,058 for a folding chair that collapsed automatically. In 1964, Clarin was issued U.S. Patent No. 3,127,218 for folding chairs fastened together in groups. The patents have expired.
Clarin's current product line includes an "A-back" metal folding chair that has a scalloped or curved back and a "B-back" metal folding chair that has a tapered back. Both chairs have an X-frame design with the front and back legs crossed just below the seat. Clarin began selling its A-back chair in approximately 1925 and its B-back chair in approximately 1987. Since 1993, Clarin's B-back chair has generated revenues in excess of $14 million. Sales of the B-back chair account for approximately 20% of Clarin's total sales over the last ten years. Since 1994, Clarin has spent in excess of $1 million in advertising and marketing expenses in promoting its entire chair line, including the B-back chair. Clarin has filed an application for federal trademark registration of the B-back chair.
Specialized Seating sells seating products. Hergott is the president, owner and sole corporate officer of Specialized Seating. Hergott is responsible for making all decisions for Specialized Seating. Sanderfur works for Specialized Seating as a sales representative.
In 2002, Specialized Seating began selling its X-frame chair. Hergott admits that the appearance of Specialized Seating's X-frame chair is substantially similar to Clarin's B-back chair. Specialized Seating generally offers its X-frame chair at a lower price than Clarin prices its B-back chair. Specialized Seating sells its X-frame chair to customers who previously bought Clarin folding chairs.
As part of this litigation, Clarin commissioned the chairman of the marketing department of Southern Methodist University, Daniel Howard, Ph.D., to survey the primary market in which Clarin and Specialized Seating sell their competing chairs. Dr. Howard surveyed 1,950 U.S. members of the trade association for the parties' primary market by sending them a cover letter, a one page survey containing six questions and three pictures, showing front, side and angle views of Clarin's B-back chair. After screening out recipients who were unfamiliar with the parties' products, the survey asked recipients whether they primarily associate the design of the chair shown in the pictures with: (1) no manufacturer; (2) one manufacturer; or (3) more than one manufacturer. In the returned surveys, 55.9% indicated that they primarily associate the chair shown in the pictures with one manufacturer and, of those, 79.6% named Clarin as the manufacturer. Out of the 285 recipients who were able to name a single manufacturer, 266 named Clarin while only one named Specialized Seating.
In addition, Clarin retained the president of Livingston Products, Inc., Troy W. Livingston, to consider whether the configuration of Clarin's B-back chair is dictated by functional considerations. In Livingston's opinion, the configuration of Clarin's B-back chair is not dictated by functional considerations.
On cross-motions for summary judgment, each movant must individually satisfy the requirements of Rule 56. Equal Employment Opportunity Commission v. Admiral Maintenance Service, L.P., No. 97 C 2034, 1998 WL 102748, at *6 (N.D. Ill. Feb. 26, 1998). Summary judgment is appropriate when the moving papers and affidavits show there is no genuine issue of material fact and the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322 (1986). Once a moving party has met its burden, the non-moving party must go beyond the pleadings and set forth specific facts showing there is a genuine issue for trial. Fed.R.Civ.P. 56(e); Silk v. City of Chicago, 194 F.3d 788, 798 (7th Cir. 1999). The court considers the record as a whole and draws all reasonable inferences in the light most favorable to the party opposing the motion. Bay v. Cassens Transport Co., 212 F.3d 969, 972 (7th Cir. 2000). A genuine issue of material fact exists when "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
Trade dress is "the total image of a product," including size, shape, color, textures, graphics and particular sales techniques. Syndicate Sales, Inc. v. Hampshire Paper Corp., 192 F.3d 633, 636 (7th Cir. 1999). Trade dress includes product design. Wal-Mart Stores, Inc. v. Samara Bros. Inc., 529 U.S. 205, 209-10 (2000). However, "[t]rade dress protection only extends to the role of such features as signifier of source; when competitors are barred from duplicating features whose value to consumers is intrinsic and not exclusively as a signifier of source, competition is unduly hindered." T&B I, 65 F.3d at 657. In short, a court considering a trade dress infringement action based on product configuration must consider ...