Searching over 5,500,000 cases.

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.


October 4, 2005.

GIL GOLD and TAMIR LEVY, individually and d/b/a GOLD & LEVY, Plaintiffs,
GOLDEN G.T., LLC, an Illinois Limited Liability Company; AER SERVICES, INC., an Illinois Corporation, SHLOMOH BEN-DAVID, an individual, and TOMER LAKS, an individual. Defendants.

The opinion of the court was delivered by: MARK FILIP, District Judge


Plaintiffs, Gil Gold ("Gold") and Tamir Levy ("Levy"), individually and d/b/a/ Gold & Levy (collectively, "Plaintiffs" or "Gold & Levy"), filed a Second Amended Complaint ("Complaint") on April 21, 2005, against Golden G.T., LLC ("Golden G.T." or "Defendant"), AER Services, Inc. ("AER Services"), and Shlomoh Ben-David ("Ben-David") (collectively, "Defendants"). (D.E. 58.)*fn1 The Complaint alleged the following claims against Defendants: violations of the Lanham Act for trademark infringement (Count I) and false designation of origin (Count II) under 5 U.S.C. § 1125(a); violation of the Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/2 ("UDTPA"), and Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/10(a) ("CFDBPA") (Count III); breach of contract/rescission (Count IV); and design patent infringement under 35 U.S.C. § 271 (Count V).

The case is before the Court on Golden G.T.'s motion to dismiss Count III of the Plaintiffs' Complaint (which implicates only Golden G.T.) on the grounds that (1) Gold & Levy failed to state a claim upon which relief can be granted, see Fed.R.Civ.P. 12(b)(6), and (2) Gold & Levy failed to plead its claim with the requisite particularity, see Fed.R.Civ.P. 9(b). (D.E. 62.) For the reasons stated below, the Court respectfully denies the motion to dismiss.


  Gold & Levy have been in the business of developing, designing, marketing, manufacturing, importing, and selling various houseware products throughout the world since 1996. (D.E. 58 ¶¶ 5, 10.) In 2001, Gold & Levy developed a unique cereal dispenser designed for home use, and determined that the United States market was their best product launch opportunity. (Id. ¶ 18.) In 2002, Gold & Levy incorporated under the name Golden G.T., Ltd., (Id. ¶ 11), and in January 2003, they displayed their cereal dispenser at trade shows in the United States bearing the EASY MORNING trademark, including in Chicago. (Id. ¶ 20.)

  According to the Complaint, Gold & Levy met defendant Ben-David at a San Francisco, California trade show around May 2003 and discussed launching a U.S. business to market the cereal dispenser. (Id. ¶¶ 23, 24.) In June 2003, Plaintiffs entered into a written agreement ("Agreement") with AER Services — which was operated by Ben-David, its majority owner — to "initiate the development of a new corporation for the distribution of cookware and home goods." (Id. ¶¶ 7-8, 26.) To gain the goodwill connected with Gold & Levy's past experience, the new company purported to be associated with Golden G.T. Gold & Levy gave Defendants permission to use their website and the domain name,; the new company also used existing Gold & Levy marketing documents to publish its own marketing brochures which touted the "exceptional international reputation" of Gold, Levy, and Golden G.T., so as to help sell products for the new company. (Id. at ¶¶ 34, 35.)

  Gold & Levy worked hard to launch the EASY MORNING cereal dispenser and watched sales grow from zero to approximately $1 million from October 2003 to April 2004. (Id. ¶ 37.) According to the Complaint, Defendants' response to the success of the EASY MORNING cereal dispenser was to demand that the terms of the agreement with Gold & Levy be changed. (Id. ¶ 38.) When Gold & Levy refused, the Complaint states that Defendants initiated actions to "force plaintiffs out of the company." (Id. ¶ 39.) Defendants discontinued Gold & Levy's salary payments and threatened to charge them with, inter alia, "criminal trespass proceedings." (Id.) Thereafter, Defendants recognized a potential conflict in ownership of the trade name Golden G.T. and re-branded the cereal dispenser under the new company name "Zevro." (Id.) Defendants, however, continued to use the EASY MORNING trademark — which Plaintiffs "have spent a considerable amount of money" establishing — "on or in connection with . . . goods in interstate commerce and within the State of Illinois." (Id. ¶¶ 46, 53.)

  The Complaint further alleges that the Golden G.T. acted willfully and with reckless disregard by misrepresenting to the public that "[s]ince 1996, ZEVRO™ has brought customers . . . products for the home." (Id. ¶¶ 42, 72, 74.) Further, Plaintiffs allege that Defendants distributed printed sales literature indicating that Golden G.T. is the source of the EASY MORNING cereal dispenser. (Id. ¶ 50.) These statements were made in Golden G.T.'s "distribution of printed marketing materials and its interactive web site, and [were] intended to induce consumers and other purchasers to rely on those representations in the purchase of [Golden G.T.'s] products." (Id. ¶ 72.) Gold & Levy allege that together, Defendants' trade practices have caused actual confusion among consumers as to the source of the cereal dispenser, (id. ¶ 59 (referencing print ads, forms, and sales literature)), and are likely to "cause confusion or mistake or deceive product buyers and consumers as to the source and origin of their goods." (Id. ¶ 55; see also id. ¶ 73 (discussing false implications that Defendant's goods originate from and are sponsored by Gold & Levy).) The Complaint further alleges that the goodwill associated with the EASY MORNING mark will be diminished because the Plaintiffs are unable to control the quality of goods supplied by the Defendant. (Id. ¶ 58.)


  The purpose of the motion to dismiss under Rule 12(b)(6) is to test the sufficiency of the complaint — not to determine whether the plaintiffs will ultimately prevail, but whether they are entitled to present evidence supporting their claim. Gibson v. City of Chicago, 910 F.2d 1510, 1520 (7th Cir. 1990). The court must accept the plaintiff's allegations as true and draw all reasonable inferences in the plaintiff's favor. Bressner v. Ambroziak, 379 F.3d 478, 480 (7th Cir. 2004); accord Jang v. A.M. Miller & Assocs., 122 F.3d 480, 483 (7th Cir. 1997). In considering the motion, the court is generally limited to the pleadings, which include the complaint, any exhibits attached thereto, and any supporting briefs. Thompson v. Ill. Dept. of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002). The court, however, is "neither bound to the plaintiff's legal characterization of the facts, nor required to ignore facts set forth in the complaint that undermine the plaintiff's claims." Avlon Indus. v. Robinson, No. 01 C 3615, 2003 WL 22025004, at *1 (N.D. Ill. Aug. 27, 2003) (citing Scott v. O'Grady, 975 F.2d 366, 368 (7th Cir. 1992)). Only where "`it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief'" is dismissal for failure to state a claim appropriate. Lee v. City of Chicago, 330 F.3d 456, 459 (7th Cir. 2003) (quoting Conley v. Gibson, 355 U.S. 41, 45-46 (1957)).

  Generally, a pleading need only contain a "short and plain statement of the claim showing that the pleader is entitled to relief," Fed.R.Civ.P. 8(a)(2), such that it provides fair notice of the nature of the plaintiff's claim and the grounds upon which it rests. See Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit, 507 U.S. 163, 168 (1993); accord Scott v. City of Chicago, 195 F.3d 950, 951 (7th Cir. 1999). A charge of fraud, however, must be pled with particularity in federal court. See Fed.R.Civ.P. 9(b). The Seventh Circuit instructs that the complaint must allege "`the identity of the person making the misrepresentation, the time, place, and content of the misrepresentation, and the method by which the misrepresentation was communicated to the plaintiff.'" Kennedy v. Venrock Assocs., 348 F.3d 584, 593 (7th Cir. 2003) (quoting Sears v. Likens, 912 F.2d 889, 893 (7th Cir. 1990)).


  In Count III of the Complaint, Gold & Levy allege that the Defendants' unauthorized use of the EASY MORNING mark and false representations made to consumers violate the Illinois Uniform Deceptive Trade Practices Act ("UDTPA"), 815 ILCS 510/2. Plaintiffs also allege that this misconduct likewise constitutes a violation of ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.