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Allen Brothers, Inc. v. AB Foods LLC

February 6, 2008


The opinion of the court was delivered by: Wayne R. Andersen District Judge


Plaintiff Allen Brothers, Inc. ("Allen Brothers") brought this action against defendant AB Foods LLC ("AB Foods") alleging that Allen Brothers has trademark rights in the mark "AB" and that AB Foods' use of that mark violates section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a), as well as Illinois common law. This matter is currently before the court on AB Foods' motion for summary judgment filed pursuant to Rule 56 of the Federal Rules of Civil Procedure. For the following reasons, the motion is granted.


This dispute centers on the letters "AB." Plaintiff Allen Brothers, an Illinois corporation with its corporate headquarters in Chicago, Illinois, furnishes high-quality, gourmet meat products to restaurants and to individual consumers. Founded in 1893, Allen Brothers has expanded into a nationwide business with annual sales in excess of $75 million and has been featured in advertisements in several local and national magazines, newspapers, and radio shows. To facilitate its business, Allen Brothers mails millions of full-color, consumer catalogs each year and operates Web sites located at "" and "," though the domain name "" redirects consumers to an Allen Brothers Web site where the words "Allen Brothers" are predominantly on display. Allen Brothers contends in this lawsuit that it began using a mark consisting of the letters "AB" in 1983 and that since that time it has used that mark continuously and exclusively in its catalogs, marketing materials, and radio advertisements, as well as on its shipping materials and Web sites.

Defendant AB Foods is an Idaho limited liability company and a wholly-owned and managed subsidiary of Agri Beef, Co. ("Agri Beef"), an Idaho corporation with its corporate headquarters in Boise, Idaho. Founded in 1968, Agri Beef functions as a vertically-integrated beef producer involved in breeding, ranching, cattle feeding, beef processing, product marketing, and product sales. Agri Beef has used a symbol consisting of the letters "AB" as its trademark since the mid 1970s. In 2006, Agri Beef reorganized its corporate structure and created wholly-owned subsidiaries including, among others, AB Foods. AB Foods is now responsible for the production, marketing, and sales of beef and beef-related products for Agri Beef. In that role, AB Foods markets and sells its beef products to restaurants and intends to expand its business and sell its products to individual consumers. As part of Agri Beef's reorganization, Agri Beef licensed its "AB" mark to AB Foods.

Allen Brothers filed its two-count complaint on March 8, 2006, alleging that AB Foods' unauthorized use of "AB" in connection with the sale of meat products to restaurants and individual consumers violates section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a) (Count One), as well as Illinois common law relating to trademark infringement and unfair competition (Count Two). Although Allen Brothers has no federally registered trademark rights in "AB," Allen Brothers alleges in its complaint that it has acquired common law trademark rights in the mark through its "continuous and extensive" use of "AB" in connection with its sales of meat products to restaurants and individual consumers. AB Foods now moves for summary judgment on both counts.


A. Legal Standard

Summary judgment is proper when "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." FED. R. CIV. P. 56(c). A genuine issue of material fact exists only if "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). The party seeking summary judgment has the burden of establishing the lack of any genuine issue of material fact. See Celotex v. Catrett, 477 U.S. 317, 323 (1986). The existence of a factual dispute is not sufficient to defeat a summary judgment motion, instead the nonmoving party must present definite, competent evidence to rebut the summary judgment motion. See Butts v. Aurora Health Care, Inc., 387 F.3d 921, 924 (7th Cir. 2004). The court considers the evidence in a light most favorable to the nonmoving party and draws all reasonable inferences in its favor. See Anderson, 477 U.S. at 255.

B. Trademark Infringement and Related Claims

The analysis of Allen Brothers' common law claim will track that of the Lanham Act claim. See Rust Env't & Infrastructure v. Teunissen, 131 F.3d 1210, 1219 (7th Cir. 1997) (finding that the plaintiff could not prevail on a state law claim of unfair competition if there was no likelihood of confusion); World Impressions, Inc. v. McDonald's Corp, 235 F. Supp. 2d 831, 841 (N.D. Ill. 2002) (finding that common law trademark infringement and unfair competition claims are resolved in the same manner as Lanham Act claims). Therefore, we will focus on Allen Brothers' Lanham Act claim. To prove a violation of section 43(a) of the Lanham Act, Allen Brothers must prove (1) that it had trademark rights in "AB" before AB Foods' began using the allegedly infringing mark, and (2) that AB Foods' use of "AB" would likely cause confusion among consumers in the marketplace about the identity or source of AB Foods' products. Johnny Blastoff, Inc. v. Los Angeles Rams Football Co., 188 F.3d 427, 436 (7th Cir. 1999).

We will focus on the second factor as it is dispositive of Allen Brothers' claims. Although likelihood of confusion is a question of fact, the issue may be resolved on summary judgment when the evidence is "so one-sided that there can be no doubt about how the question should be answered." Door Sys., Inc. v. Pro-Line Door Sys., Inc., 83 F.3d 169, 171 (7th Cir. 1996) (affirming summary judgment for the defendant where there was "no reasonable likelihood that any significant number of consumers could mistake the defendant for the plaintiff"). Thus, in order to survive summary judgment, Allen Brothers must produce evidence that, if believed by a trier of fact, would show that consumers are likely to be confused as to the source of AB Foods' products. Sullivan v. CBS Corp., 385 F.3d 772, 776 (7th Cir. 2004). Courts in this circuit consider seven factors to determine whether there is a likelihood of confusion: (1) similarity of the marks; (2) similarity of the products; (3) area and manner of concurrent use; (4) degree of care likely to be used by consumers; (5) strength of the complainant's mark; (6) evidence of actual confusion; and (7) intent of the defendant to palm off his product as that of another. Int'l Kennel Club of Chi. v. Mighty Star, Inc., 846 F.2d 1079, 1087 (7th Cir. 1988). "None of these factors by itself is dispositive of the likelihood of confusion question, and different factors will weigh more heavily from case to case depending on the particular facts and circumstances involved." Id. The court, therefore, will begin its analysis by examining these factors.

1. Similarity of the Marks

In comparing two marks to determine their similarity, courts must make the comparison "in light of what happens in the marketplace and not merely by looking at the two marks side-by-side." Sullivan, 385 F.3d at 777. This is because the consuming public is unlikely ever to be presented with the opportunity for such side-by-side comparison. Int'l Kennel, 846 F.2d at 1088. For this factor to lean in favor of likelihood of confusion, "[t]he marks must be so similar that it is likely or probable, not just possible, that consumers, when presented with ...

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