United States District Court, N.D. Illinois, Eastern Division
Franchising System, Inc., Plaintiff, represented by Michael
R. Gray, Gray, Plant, Mooty, Mooty & Bennett & Aric Seth
Jacover, Jacover Law LLC.
N Shake Operations, Inc., Defendant, represented by Kathleen
Riordan Elsner, Latham & Watkins LLP & Matthew W. Walch,
Latham & Watkins LLP.
MEMORANDUM OPINION AND ORDER
FEINERMAN, District Judge.
Franchising System, Inc., brought this suit against Steak n
Shake Inc., alleging that Steak n Shake unlawfully copied one
of its television commercials in violation of the Copyright
Act, 17 U.S.C. § 101 et seq. Doc. 1. Steak n Shake
has moved to dismiss the complaint pursuant to Federal Rule
of Civil Procedure 12(b)(6), arguing that the two commercials
are not substantially similar. Doc. 14. The motion is
granted, and the complaint is dismissed without prejudice to
Culver attempting to replead.
Rule 12(b)(6) motion, the court must accept the
complaint's well-pleaded factual allegations, with all
reasonable inferences drawn in Culver's favor, but not
its legal conclusions. See Smoke Shop, LLC v.
United States, 761 F.3d 779, 785 (7th Cir. 2014). The
court must also consider "documents attached to the
complaint, documents that are critical to the complaint and
referred to in it, and information that is subject to proper
judicial notice, " along with additional facts set forth
in Culver's brief opposing dismissal, so long as those
additional facts "are consistent with the
pleadings." Phillips v. Prudential Ins. Co. of
Am., 714 F.3d 1017, 1020 (7th Cir. 2013) (internal
quotation marks omitted). The facts are set forth as
favorably to Culver as those materials permit. See
Meade v. Moraine Valley Cmty. Coll., 770 F.3d 680,
682 (7th Cir. 2014).
and Steak n Shake are franchisors that license individuals to
operate Culver's and Steak n Shake restaurants,
respectively, throughout the United States. Doc. 1 at ¶¶ 1-2.
In December 2014, Culver began developing its
"Butcher-Quality Beef" television commercial, which
highlights Culver's "ButterBurger."
Id. at ¶¶ 6-7. The commercial first aired on April
13, 2015. Id. at ¶ 8.
commercial opens in a butcher shop with its co-founder, Craig
Culver, reminiscing with a butcher, Fritz, about "the
good old days":
Craig Culver: "The ButterBurger is made of just three
cuts of fresh Midwest beef, nothing more, nothing less. It
reminds me of the good old days when we first opened
Culver's, we would call up the butcher shop and we'd
buy our beef from there each and every day."
Fritz: "You can't get any fresher than that."
Craig Culver: "Well today we still get fresh beef into
this part of the conversation, the commercial intersperses
shots of (1) Culver's logo with the words
"Butcher-Quality Beef"; (2) a close-up of the
ButterBurger; and (3) a mother and her son selecting and
purchasing meat from another butcher in the shop.
camera then focuses on three cuts of beef, as Craig and Fritz
discuss how they are incorporated into the ButterBurger:
Craig Culver: "We don't skimp on the quality of our
beef. So we got the sirloin, the chuck and the plate. No
fillers, that's it."
Fritz: "All prized cuts, all well-marbled for richness
and flavor. And when you put them all together, that ends up
to be a very high quality burger."
then cooks two patties, pressing down on them with a spatula
and metal cylinder. Craig and Fritz continue discussing the