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Personal Keepsakes, Inc. v. Personalizationmall.Com

February 8, 2012

PERSONAL KEEPSAKES, INC. PLAINTIFF
v.
PERSONALIZATIONMALL.COM, INC., TECHNY ADVISORS, LLC, ABERNOOK, LLC AND DOE I THOUGHT DOE V, DEFENDANTS.



The opinion of the court was delivered by: Judge Virginia M. Kendall

MEMORANDUM OPINION AND ORDER

Plaintiff Personal Keepsakes, Inc. (PKI), the operator a website selling personalized gifts and knickknacks, sued Personalizationmall.com, Inc. ("Pmall"), Techny Advisors, LLC ("Techny") and Abernook, LLC ("Abernook") (together, "Defendants"), all of which also sell personalized gifts on the internet, alleging that Defendants took PKI's copyrighted poems and incorporated them their own products. Defendants have answered PKI's copyright infringement claim, but have moved to dismiss PKI's other claims under Rule 12(b)(6). According to the Defendants, PKI has not sufficiently alleged a violation of the Digital Millenium Copyright Act (DMCA), cannot allege a violation of the Lanham Act under Supreme Court precedent, and the Copyright Act preempts PKI's claims under the Illinois consumer fraud statutes and Illinois common law. For the following reasons, the Court grants Abernook's and Techny's Defendants' motions (Docs. 35 and 38) in their entirety and grants Pmall's motion (Doc. 32) in part.

I. FACTS

The Court takes the following facts alleged by PKI in its complaint as true. See Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008). PKI designs and produces gift items personalized with poetry verses for special occasions and then sells them on its website, poetrygift.com. (Doc. 1, Compl. ¶ 1.) Specifically, PKI's owner writes poetry verses that are then incorporated into gift items. (Id. at ¶ 8.) PKI's complaint discusses two specific products and attaches the webpages selling them to its complaint. (Id. at Ex. A.) PKI sells a gift for a baptism like this:

(Id. at Ex. A.) The purchaser can personalize item with a photo. (Id.) It includes a poem, called "On Your Baptism Day," that can be personalized with the name of the person that was baptized and other details:

On Your Baptism Day

(Optional Church Name)

(Baptism Date)

You are a precious gift to us sent from God above.

He placed you in our loving arms and

Name

blessed us with your love.

May you always walk with Jesus -

Live your faith in all you do.

Treasuring God's love - the way we treasure

the priceless gift of you.

With Love,

(Names)

(Id.) That poem is copyrighted. (Compl. ¶ 11; Ex. C.) The second product is a similar gift for a wedding ring bearer:

(Id. at Ex. A.) This product can be personalized in the same way as the baptism gift, and ...


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