The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge
This matter is before the court on Plaintiff Freudenberg Household Products LP's ("FHP") motion for a preliminary injunction. For the reasons stated below, we deny the motion for a preliminary injunction.
FHP alleges that it develops, manufactures, and sells a line of household cleaning tools. According to FHP, since 1977, FHP or its predecessor in interest has been advertising and selling a line of household cleaning products ("O-Cedar line") that bear the name "O-Cedar" and the phrase "Makes Your Life Easier." (Compl. Par. 10-11). FHP claims that after it started advertising and selling the O-Cedar line, Defendant Time, Inc. ("Time") began publishing a women's lifestyle magazine entitled "Real Simple," which bears the phrase "Life Made Easier" on its cover. (Compl. Par. 18). FHP also contends that Time recently licensed Kaminstein Imports, Inc. ("Kaminstein") to use the phrases "Real Simple" and "Life Made Easier" in connection with the sale of a line of cleaning tools that includes mops and brooms. (Compl. Par. 19). FHP claims that Defendants' use of FHP's marks in connection with the line of cleaning products has caused confusion amongst consumers, making it difficult to distinguish between FHP's products and Defendants' products. FHP includes in its complaint a trademark infringement claim alleging a violation of 15 U.S.C. § 1114 of the Lanham Act ("Section 1114"), 15 U.S.C. § 1051 et seq. (Count I), a Lanham Act false designation of origin claim alleging a violation of 15 U.S.C. § 1125(a) of the Lanham Act ("Section 1125") (Count II), an Illinois Deceptive Trade Practices Act ("IDTPA"), 815 ILCS 510/1 et seq., claim (Count III), a common law unfair competition claim (Count IV), a Lanham Act dilution claim alleging a violation of Section 1125 (Count V), and a Lanham Act contributory infringement claim (Count VI). FHP has moved for a preliminary injunction in this action and both FHP and Defendants have requested that this court rule based upon the documents and exhibits filed in this matter, rather than conducting a preliminary injunction hearing.
A preliminary injunction "should not be granted unless the movant, by a clear showing, carries the burden of persuasion." Goodman v. Illinois Dept. of Financial and Professional Regulation, 430 F.3d 432, 437 (7th Cir. 2005)(stating that "[a]s the Supreme Court has observed, "[a] preliminary injunction is an extraordinary and drastic remedy")(quoting Mazurek v. Armstrong, 520 U.S. 968, 972 (1997)). In order to obtain a preliminary injunction, a plaintiff must show that: "(1) [the plaintiff] ha[s] a reasonable likelihood of success on the merits; (2) no adequate remedy at law exists; (3) [the plaintiff] will suffer irreparable harm which, absent injunctive relief, outweighs the irreparable harm the respondent will suffer if the injunction is granted; and (4) the injunction will not harm the public interest." Goodman, 430 F.3d at 437.
I. Likelihood Of Success On The Merits
FHP argues that it has a strong likelihood of success on the merits.
To determine whether a plaintiff has a likelihood of success on the merits, the court must assess whether the plaintiff has "a greater than negligible chance of winning . . . ." AM General Corp. v. DaimlerChrysler Corp., 311 F.3d 796, 804 (7th Cir. 2002)(stating that "[a] party with no chance of success on the merits cannot attain a preliminary injunction"). In addition, the court should use a "sliding scale" approach when considering potential harms to the parties, and the required showing by the plaintiff for the likelihood of success on the merits can be lessened if there is "a greater predominance of the balance of harms." Id. (stating that "[i]n performing this balancing, the court bears in mind that the purpose of a preliminary injunction is 'to minimize the hardship to the parties pending the ultimate resolution of the lawsuit'").
A. Trademark Infringement Claim And Related State Claims
FHP contends that it has a strong likelihood of success on the trademark infringement claims (Counts I and II), the IDTPA claim (Count III), and the common law unfair competition claim (Count IV). A trademark is defined to include "any word, name, symbol, or device, or any combination thereof [used by any person] to identify and distinguish his or her goods, including a unique product, from those manufactured and sold by others and to indicate the source of the goods, even if that source is unknown." Packman v. Chicago Tribune Co., 267 F.3d 628, 638 (7th Cir. 2001)(quoting 15 U.S.C. § 1127). There are five types of trademarks that are categorized in "ascending order of distinctiveness: generic, descriptive, suggestive, arbitrary, and fanciful." Packman, 267 F.3d at 638. Unfair competition claims brought under Illinois law and IDTPA claims are reviewed under the same analysis that is employed for a Lanham Act trademark infringement claim. Trans Union LLC v. Credit Research, Inc., 142 F.Supp.2d 1029, 1038 (N.D. Ill. 2001).
FHP explains in an affidavit that it or its predecessor in interest have had a registered trademark in the phrase "O-Cedar Makes Your Life Easier" ("Registered Mark") since 1983. (Tillery Aff. Par. 5). FHP also alleges that it owns the common law rights in the phrases "O-Cedar Makes Your Life Easier!," and "Makes Your Life Easier!" and that FHP has a pending trademark registration application in regard to both phrases ("Unregistered Marks"). (Tillery Aff. Par. 6). Section 1114 governs registered trademarks and "creates a cause of action for a trademark 'registrant' when a defendant uses a registered trademark without consent." Finance Inv. Co. (Bermuda) Ltd. v. Geberit AG, 165 F.3d 526, 531 (7th Cir. 1998); 15 U.S.C. § 1114. Section 1125 governs unregistered trademarks and "creates a cause of action for 'any person who believes that he or she is likely to be damaged' by a defendant's false designations of origin and misleading representations of fact that are likely to cause confusion as to origin or sponsorship." Id. (quoting in part Section 1114 and Section 1125).
FHP has not offered any legal argument regarding the likelihood of success on the merits of its trademark infringement claim based upon its Registered Mark. Virtually the entire analysis of the likelihood of success on the merits in FHP's memorandum in support of the motion is devoted to its Section 1125 claim and its Unregistered Marks. The only references in the memorandum to the Registered Mark are in two footnotes, in which FHP states in a conclusory fashion that it has the Registered Mark, that it is a protectable mark, and that "FHP believes that it is also likely to succeed in its claim of infringement of its registered mark . . . [because it] has become incontestable . . . ." (Mem. 1 n.1, 5 n.8). Such conclusory and unsupported statements are not sufficient for a plaintiff to show that it is entitled to the "extraordinary remedy" of injunctive relief. See Lawson v. Hill, 368 F.3d 955, 959 (7th Cir. 2004)(referring to an injunction as "an extraordinary remedy"); East St. Louis Laborers' Local 100 v. Bellon Wrecking & Salvage Co., 414 F.3d 700, 704 (7th Cir. 2005)(same). An analysis specifically concerning FHP's Section 1114 claim would have been particularly appropriate, for instance, because certain presumptions arise in regard to marks that have been registered. See Packman, 267 F.3d at 638 (stating that "[o]nce a mark is registered, the Act affords a plaintiff one of two presumptions: (1) that her registered trademark is not merely descriptive or generic; or (2) that if descriptive, the mark is accorded secondary meaning"). Also, FHP's Registered Mark is not exactly the same as FHP's Unregistered Marks and, thus, FHP should have addressed the Registered Mark in FHP's analysis of its likelihood of success on the merits. Despite the distinctions regarding Section 1125 claims and Section 1114 claims, FHP has not provided any analysis in support of its Section 1114 claim. We also reiterate that FHP agreed with Defendants to waive their right to a preliminary injunction hearing, confining the court's review solely to the parties' briefs and accompanying exhibits, which means that FHP would not have intended to raise these arguments in a preliminary injunction hearing.
FHP addresses, for the first time in its reply brief, the alleged infringement of its Registered Mark. However, a party cannot raise new arguments in a reply brief and thereby deny the opposing party an opportunity to respond to the newly raised arguments. Accordingly, we strike such arguments as improper. See Aliwoli v. Gilmore, 127 F.3d 632, 635 (7th Cir. 1997)(quoting United States v. Feinberg, 89 F.3d 333, 340-41 (7th Cir. 1996) for the statement that "[t]he reply brief is not the appropriate vehicle for presenting new arguments or legal theories to the court"). Therefore, FHP has failed to show that there is even a negligible likelihood of success on its claim based upon an infringement of its Registered Mark.
FHP argues that it has a strong likelihood of success on its trademark claim based on its Unregistered Marks. Infringement of an unregistered trademark is governed by Section 1125, and to prevail on such a claim a plaintiff must show that: "(1) the defendants have a protectable trademark; and (2) a 'likelihood of confusion' will exist as to the origin of the plaintiff's products." Johnny Blastoff, Inc. v. Los Angeles Rams Football Co., 188 F.3d 427, 435-36 (7th Cir. ...