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Culver Franchising System, Inc. v. Steak N Shake Inc.

United States District Court, N.D. Illinois, Eastern Division

August 5, 2016

CULVER FRANCHISING SYSTEM, INC., Plaintiff,
v.
STEAK N SHAKE INC., Defendant.

          Culver Franchising System, Inc., Plaintiff, represented by Michael R. Gray, Gray, Plant, Mooty, Mooty & Bennett & Aric Seth Jacover, Jacover Law LLC.

          Steak N Shake Operations, Inc., Defendant, represented by Kathleen Riordan Elsner, Latham & Watkins LLP & Matthew W. Walch, Latham & Watkins LLP.

          MEMORANDUM OPINION AND ORDER

          GARY FEINERMAN, District Judge.

         Culver 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.

         Background

         On a 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).

         Culver 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.

         Culver's 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 our restaurants."

         During 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.

         The 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."

         Craig then cooks two patties, pressing down on them with a spatula and metal cylinder. Craig and Fritz continue discussing the ...


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