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Bobak Sausage Company v. A & J Seven Bridges

March 28, 2011

BOBAK SAUSAGE COMPANY, PLAINTIFF,
v.
A & J SEVEN BRIDGES, INC., D/B/A BOBAK'S SIGNATURE EVENTS, AN ILLINOIS CORPORATION, AND JOHN BOBAK AND ANNA ZALINSKI, DEFENDANTS.



The opinion of the court was delivered by: Judge Robert M. Dow, Jr.

MEMORANDUM OPINION AND ORDER

Plaintiff Bobak Sausage Company ("BSC" or "Plaintiff") filed its complaint against Defendants A & J Seven Bridges, Inc., d/b/a Bobak's Signature Events, and John Bobak and Anna Zalinski (collectively "A&J" or "Defendants"), alleging Trademark Infringement (Count I), Trademark Dilution (Count II), False Designation of Origin (Count III), Common Law Unfair Competition (Count IV), Statutory Deceptive Trade Practices Competition (Count V), and Piercing Corporate Veil/Alter Ego (Count VI). Currently before the Court are BSC's motion for summary judgment [68] on Count I-V and A&J's Opposition to BSC's motion for summary judgment and cross-motion for summary judgment [77]. For the reasons explained below, BSC's motion for summary judgment [68] is denied and A&J's cross-motion for summary judgment [77] is granted as to Plaintiff's claims for Trademark Infringement (Count I), Trademark Dilution (Count II), and False Designation of Origin (Count III). The Court dismisses without prejudice BSC's state law claims for Unfair Competition (Count IV), Statutory Deceptive Trade Practices Competition (Count V), and Piercing Corporate Veil/Alter Ego (Count VI).

I. Background

A. Statements of Facts

The Court has taken the relevant facts primarily from the parties' Local Rule ("L.R.")

56.1 statements: BSC's Statement of Facts ("BSC SOF") [69], A&J's Statement of Facts ("A&J SOF") [77], and BSC's Response to A & J's Statement of Facts ("BSC Response") [81]. Local Rule 56.1 requires that statements of facts contain allegations of material fact and that factual allegations be supported by admissible record evidence. See L.R. 56.1; Malec v. Sanford, 191 F.R.D. 581, 583-85 (N.D. Ill. 2000). It is the function of the Court, with or without a motion to strike, to review carefully statements of material facts and to eliminate from consideration any argument, conclusions, and assertions that are unsupported by the documented evidence of record offered in support of the statement. See, e.g., Sullivan v. Henry Smid Plumbing & Heating Co., Inc., 2006 WL 980740, at *2 n.2 (N.D. Ill. Apr. 10, 2006); Tibbetts v. RadioShack Corp., 2004 WL 2203418, at *16 (N.D. Ill. Sept. 29, 2004); Rosado v. Taylor, 324 F. Supp. 2d 917, 920 n.1 (N.D. Ind. 2004). The Court's scrutiny of material statements of facts applies equally to the party seeking summary judgment and the party opposing it.

Where a party offers a legal conclusion or statement of fact without proper evidentiary support, the Court will not consider that statement. Malec v. Sanford, 191 F.R.D. at 583. For instance, Plaintiff's three-page statement of material facts asserts that (1) there was "actual confusion" as well as a "likelihood of confusion" as to the origin of the parties' services and products, (2) Defendants' use of the trademark caused "dilution" of the mark, (3) Defendants' use of the trademark "falsely designates" the origin of their goods and services, and (4) that the mark is "famous." See BSC SOF ¶¶ 14, 15, 18, 21. These are legal conclusions, not statements of fact. Plaintiff should have included in its statement of facts the facts which support those legal conclusions, rather than the legal conclusions themselves, but Plaintiff failed to do so. To make matters worse, Defendants pointed out Plaintiff's failure to set forth actual facts in its statement of facts (see A&J Reply Brief at 4 ("BSC argues that A&J has ignored Stan Bobak's testimony that their permission to use "Bobak's Signature Events" was conditioned on the execution of a formal trademark license. This 'fact' appears nowhere in BSC's Local Rule 56.1 statement of material facts in support of its own motion for summary judgment * * * and BSC has not filed a statement of additional material facts in response to A&J's motion."); id. at 11 ("At its own peril, BSC has sacrificed compliance with court rules in favor of bombast and rhetoric")), yet Plaintiff did not respond by seeking to amend its filings. Instead, Plaintiff chose to stand on its original submissions, which repeatedly referenced facts in its briefs that were not mentioned in its statement of facts.

The Seventh Circuit repeatedly has held that a district court is within its discretion to strictly enforce compliance with its local rules regarding summary judgment motions and the Court will do so here. See Patterson v. Indiana Newspapers, Inc., 589 F.3d 357, 359 (7th Cir. 2009); Bordelon v. Chi. Sch. Reform Bd. of Trustees, 233 F.3d 524, 527 (7th Cir. 2000). At the time that the cross-motions for summary judgment were filed, this case had been pending for approximately three years, and both parties received extensions of time to file their briefs. Counsel for Plaintiffs undoubtedly has substantial familiarity with the facts and circumstances of this case (and the preceding litigation involving the Bobak family), which weighs strongly against excusing Plaintiff's non-compliance with the local rules. Citing several exhibits (without any page reference) for a legal conclusion is not helpful to the court (see Ammons v. Aramark Uniform Services, Inc., 368 F.3d 809, 818 (7th Cir. 2004)), and is a practice that the Seventh Circuit repeatedly has criticized. Furthermore, merely including facts in a responsive memorandum is insufficient to put the issue before the Court. Midwest Imports, Ltd. v. Coval, 71 F.3d 1311, 1313 (7th Cir. 1995); Malec v. Sanford, 191 F.R.D. 581, 594 (N.D. Ill. 2000). Plaintiff's memoranda are replete with references to facts that are not included in its statement of facts.

As the Seventh Circuit has stressed, facts are to be set forth in Rule 56.1 statements, and it is not the role of the Court to parse the parties' exhibits to construct the facts. Judges are not "like pigs, hunting for truffles buried in briefs." United States v. Dunkel, 927 F.2d 955, 956 (7th Cir.1991). "Nor are they archaeologists searching for treasure." Jeralds ex rel. Jeralds v. Astrue, 2010 WL 4942161, at *7 (N.D. Ill. Dec. 8, 2010) (citing DiLeonardi, 181 F.3d 865, 867 (7th Cir. 1999)). It simply is not the court's job to sift through the record to find evidence to support a party's claim. Davis v. Carter, 452 F.3d 686, 692 (7th Cir. 2006). Rather, it is "[a]n advocate's job * * * to make it easy for the court to rule in his client's favor * * *." Dal Pozzo v. Basic Machinery Co., Inc., 463 F.3d 609, 613 (7th Cir. 2006). Adherence to Local Rule 56.1 gives the opposing party the opportunity to either admit or deny the statement of fact, and to provide record support for either assertion. By not following the rule, a party injects facts into the case that have not been subject to the opposing side's scrutiny, nor presented to the court for its review.

In addition, where a party improperly denies a statement of fact by failing to provide adequate or proper record support for the denial, the Court deems that statement of fact to be admitted. Thus, any statements or responses that contain legal conclusions or argument, are evasive, contain hearsay or are not based on personal knowledge, are irrelevant, or are not supported by evidence in the record will not be considered by the Court in ruling on the summary judgment motions. Any paragraph or fact that is not supported by record evidence will be disregarded.

B. Facts

BSC is an Illinois Corporation with its principal place of business at 5275 S. Archer Avenue in Chicago, Illinois. BSC has owned Trademark/Service mark No. 2,870,879 for the word "Bobak's" and mark No. 2,859,600 for the word "Bobak's" in a distinctive script since 2004 and has continuously used the mark since 1967 in connection with its wide range of food products, its retail stores, and its manufacturing and wholesale food product sales business. The mark is in a red, stylized script resembling sausages. Until early 2006, a related company, Bobak Enterprises, opened retail grocery stores in Burr Ridge and Naperville under the name "Bobak Sausage Company." The retail grocery stores had restaurant areas that could accommodate small parties. Those stores are no longer in operation. Until early 2007, BSC also operated a restaurant in its Archer Avenue location but then removed the restaurant and replaced it with a deli with no table service. There is a modest seating area, in a hallway leading to the store's restrooms, for customers who want to eat their deli items in the store.

A&J is an Illinois Corporation that provides banquet hall, conference center, and food catering services at 6440 Double Eagle Drive in Woodridge, Illinois, under the name "Bobak's Signature Events (and Conference Center at Seven Bridges)." Individual Defendants John Bobak ("Cousin John") and his sister Anna Zalinski are officers and shareholders of A&J.*fn1 The conference center and banquet facility had been operated under the name "Signature Room" and were owned by the same entity that operated the Signature Room at the John Hancock Building in downtown Chicago. However, as a condition of A&J's purchase of the Seven Bridges facility, A&J was required to phase out the "Signature Room" name within six months of the purchase.

In early 2005, BSC and its three shareholders and officers, Stanley Bobak, John Bobak ("Brother John") and Joe Bobak, told A&J that BSC had no problem with A&J's use of the name "Bobak's Signature Events." Cousin John testified that he again confirmed with Stanley Bobak that the three brothers had agreed to A&J's use of "Bobak's Signature Events" for the Woodridge banquet and conference facility.*fn2 At the request of the bank financing the acquisition of the facility, A&J asked for written confirmation that BSC had no objection to A&J's use of the name "Bobak's Signature Events" and John Bobak, BSC's president at the time, provided the written permission in April 2005. The writing, signed by "John Bobak, President" states:

PERMISSION TO USE BUSINESS NAME: I, John Bobak, president of Bobak Sausage Company, give A&J Seven Bridges, Inc., John Bobak, and Anna Zalinski permission to use the name Bobak's in a d/b/a Bobak's Signature Events. Bobak's Sausage Company has no ownership interest in A&J Seven Bridges, Inc. and A&J Seven Bridges, Inc. has no ownership interest in Bobak's Sausage Company.

A&J did not pay a fee or provide anything of value in exchange for the written permission.

A&J started to use the name "Bobak's Signature Events" in June 2005. A&J has a blue and yellow logo that retained the general appearance of the former "Signature Room" logo, replacing "Room" with "Events" and adding the family name in smaller print, above the main portion of the logo. A&J employees answer the facility's telephone by stating "Signature Events," and catering menus sent to prospective customers are labeled "Signature Events at Steven Bridges." A&J also maintains a website at www.signatureevent.com. When A&J opened Bobak's Signature Events, BSC and the Bobak Sausage Company retail stores placed promotional fliers for Bobak's Signature Events into customers' grocery bags.

Most of A&J's business comes from former customers of the Signature Room. Approximately 45 percent of A&J's events consist of corporate functions for companies such as Verizon, Best Buy, and McDonald's, and the remaining 55 percent includes social events such as weddings, proms, anniversary celebrations, or First Communion parties. A&J occasionally advertises in wedding resource guides and local newspapers, but its main method of promotion is word-of-mouth and referrals. The facility can accommodate groups from 25 to 1200 people. The hefty Bobak's Signature Events menu offers steak, chicken and seafood. It also offers BSC sausage as one of forty available appetizers. The facility can provide audiovisual equipment such as projectors, screens, and microphones for corporate meetings. The cost of hosting an event at Bobak's Signature Events ranges from a couple hundred to several thousand of dollars.

In early 2006, BSC reorganized and Stanley Bobak became president. In October 2006, BSC, through its counsel, asked A&J to sign a trademark licensing agreement. A&J declined to execute the trademark license. Neither BSC nor A&J considered BSC's permission to use the name "Bobak's Signature Events" in April 2005 to be a trademark license. After A&J refused to sign the proposed license agreement, BSC sent letters to A&J referencing litigation and the possibility of "a financially crippling injunction," warning that A&J would "experience what it is like to have its very business existence at risk."

C. The Survey

BSC hired Amplitude Research to develop and analyze a trademark confusion survey. Amplitude, in turn, hired Communications Center, Inc. ("CCI") to conduct the actual survey. The survey consisted of eight questions that were asked of 360 participants. In total, eight thousand calls were made. Two questions were targeted toward understanding the participants' familiarity with the companies and six questions measured the participants' perceptions of the products. The participants were selected using a random digit dial sample drawn from the population of the Chicago Metropolitan Statistical Area and reflect census data quotas. The surveyors only contacted households, not businesses.

Defendants filed a motion to exclude the expert testimony of Plaintiff's witness, Thomas J. Callahan of Amplitude, pursuant to Federal Rule of Civil Procedure 702. In assessing the survey, the Court noted that the flaws in the survey substantially limit the helpfulness of the proposed survey and present a close question in regard to whether to exclude the survey entirely. However, the Court ultimately concluded that it could not say -- especially without the context provided by, for example, the summary judgment motions that have now been filed -- that the survey is one of the "rare" surveys that is "so flawed as to be completely unhelpful to the trier of fact and therefore inadmissible." AHP Subsidiary Holding Co., 1 F.3d at 618. Noting the Seventh Circuit's teaching about the critical distinction between a jury trial and a ...


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