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Americash Loans, LLC v. AO Ventures

March 19, 2009


The opinion of the court was delivered by: Samuel Der-yeghiayan, District Judge


This matter is before the court on Defendant AO Ventures, LLC's ("AOV") motion to dismiss. For the reasons stated below, we deny the motion to dismiss.


Plaintiff Americash Loans, LLC ("Americash") alleges that since 1998 it has continuously used its federal registered mark "Americash Loans" in connection with a variety of loan services. Americash contends that Defendant Americash Hotline ("Hotline") offered the same types of services as Americash and used the mark "Americash Hotline," which Americash contends is a mark that is confusingly similar to the "Americash Loans" mark. Americash states that it did not give Hotline permission to use a similar mark. Americash also contends that Defendant Sharon Marek ("Marek") and Defendant AOV advertised marks on their websites that were similar to Americash's mark without the permission of Americash. Americash brought the instant action and includes in its complaint federal trademark infringement claims (Count I), federal unfair competition claims (Count II), federal dilution claims (Count III), Illinois Uniform Deceptive Trade Practices Act, 815 ILCS 510/1 et seq.,claims (Count IV), Illinois Consumer Fraud and Deceptive Business Practices Act, 815 ILCS 505/1 et seq., claims (Count V), Illinois Trademark Registration and Protection Act, 765 ILCS 1036, and related common law claims (Count VI), and Illinois common law unfair competition claims (Count VII). On December 16, 2008, Americash voluntarily moved to dismiss all claims brought against Hotline and Marek. AOV, the only remaining defendant, now moves to dismiss all claims brought against it.


In ruling on a motion to dismiss brought pursuant to Rule 12(b)(6), the court must draw all reasonable inferences that favor the plaintiff, construe the allegations of the complaint in the light most favorable to the plaintiff, and accept as true all well-pleaded facts and allegations in the complaint. Thompson v. Ill. Dep't of Prof'l Regulation, 300 F.3d 750, 753 (7th Cir. 2002); Perkins v. Silverstein, 939 F.2d 463, 466 (7th Cir. 1991). In order to withstand a motion to dismiss, a complaint must allege the "operative facts" upon which each claim is based. Kyle v. Morton High Sch., 144 F.3d 448, 454-55 (7th Cir. 1998); Lucien v. Preiner, 967 F.2d 1166, 1168 (7th Cir. 1992). A plaintiff is required to include allegations in the complaint that "plausibly suggest that the plaintiff has a right to relief, raising that possibility above a 'speculative level'" and "if they do not, the plaintiff pleads itself out of court."

E.E.O.C. v. Concentra Health Services, Inc., 496 F.3d 773, 776 (7th Cir. 2007)(quoting in part Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1965 (2007)).

Pursuant to Federal Rule of Civil Procedure 12(b)(7) ("Rule 12(b)(7)"), a defendant can move to dismiss an action based on the "failure to join a party" under Federal Rule of Civil Procedure 19 ("Rule 19"). Fed. R. Civ. P. 12(b)(7). For a Rule 12(b)(7) motion, the court must "accept the allegations in the complaint as true." Davis Companies v. Emerald Casino, Inc., 268 F.3d 477, 479 n.2 (7th Cir. 2001); see also Boulevard Bank Nat. Ass'n v. Philips Medical Systems Intern. B.V., 15 F.3d 1419, 1422 (7th Cir. 1994)(stating that "in deciding a Rule 12(b)(7) motion to dismiss," the court "must apply Rule 19(b) if [the court] first determine[s] that the party to be joined satisfies the threshold requirements of Rule 19(a)").

Rule 19 provides in part that "[a] person who is subject to service of process and whose joinder will not deprive the court of subject-matter jurisdiction must be joined as a party if: (A) in that person's absence, the court cannot accord complete relief among existing parties; or (B) that person claims an interest relating to the subject of the action and is so situated that disposing of the action in the person's absence may: (i) as a practical matter impair or impede the person's ability to protect the interest; or (ii) leave an existing party subject to a substantial risk of incurring double, multiple, or otherwise inconsistent obligations because of the interest." Fed. R. Civ. P. 19(a). When ruling on a Rule 12(b)(7) motion to dismiss, "a court may go outside the pleadings and look to extrinsic evidence." Davis Companies, 268 F.3d at 480 n.4.


I. Standing of Americash

AOV asserts that Americash lacks standing to bring the claims against AOV due to a settlement in a prior action and due to the lack of registration by Americash concerning the mark in question.

A. Prior Settlement with Americash Advance, LLC

AOV claims that Americash lacks standing due to a prior settlement with Americash Advance, LLC ("Advance") in another action. AOV contends that Americash has brought this action against AOV "to preclude AOV from publishing reviews and ratings of non-party Americash Advance LLC . . ., a competitor to Plaintiff." (Ans. 1). AOV contends that in case number 07 C 774, Americash brought an action against Advance, concerning its usage of Americash's mark or similar marks and the parties settled the action in September 2007 ("Settlement"). The docket for case number 07 C 774 in fact reflects such an action and the Settlement. AOV indicates that under the terms of the Settlement, Advance was permitted to continue to use its mark. However, Americash correctly points out that it is not bringing the instant action against Advance concerning its usage of the "Americash" mark. Nor does Americash indicate that AOV in advertising the "Americash" mark, was acting as an agent of or on behalf of Advance or was paid by Advance to make such references. AOV acknowledges itself that it acted independently of Advance on its ...

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