United States District Court, N.D. Illinois, Eastern Division
MEMORANDUM OPINION AND ORDER
S. SHAH UNITED STATES DISTRICT JUDGE.
Grow, Inc., uses the mark “LIGHTNING FAST” for
its ice-melt product and it claims that Crystal Visions,
Inc., is infringing on the mark by using its own,
“LIGHTNING PREMIUM ICE MELTER.” Crystal Visions
brought this suit against EC Grow for declaratory judgment of
non-infringement, and in response, EC Grow brought
counter-claims against Crystal Visions and its partner
company, Salt Xchange, Inc. EC Grow and the
counter-defendants filed cross-motions for summary judgment
on EC Grow's counterclaims of infringement and unfair
competition. Both motions brief the issue of likelihood of
confusion between the two products. EC Grow's motion is
denied, and counter-defendants' motion is granted.
judgment is appropriate if the movant shows that there is no
genuine dispute as to any material fact and that it is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
There is a genuine dispute over a material fact if “the
evidence is such that a reasonable jury could return a
verdict for the nonmoving party.” Anderson v.
Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). The
movant bears the burden of establishing that the summary
judgment standard is met, but the non-movant must show
evidence to establish every element of its claim for which it
will bear the burden of proof at trial. See Celotex Corp.
v. Catrett, 477 U.S. 317, 322-23 (1986). I construe the
facts in the light most favorable to the non-movant and draw
reasonable inferences in its favor. Laborers' Pension
Fund v. W.R. Weis Co., Inc., 879 F.3d 760, 766 (7th Cir.
2018). The summary judgment standard is no different when
considering cross-motions. Blow v. Bijora, Inc., 855
F.3d 793, 797 (7th Cir. 2017). I don't have to grant one
motion or the other-I can deny both if neither meets the
standard. I am free to consider evidence submitted with
respect to one motion when considering the other. Torry
v. City of Chicago, 932 F.3d 579, 584 (7th Cir. 2019).
Local Rule 56.1
importance of Local Rule 56.1 is too often overlooked by
litigants. The rule is essential to the fair and efficient
disposition of summary judgment motions, and parties can be
strictly held to it. See Flint v. City of Belvidere,
791 F.3d 764, 767 (7th Cir. 2015) (collecting cases).
Responses to statements of material facts are not the place
for legal argument or quarrels about characterizations of the
facts-that is what briefs are for. A party's sole options
are to admit or dispute a fact, and any dispute must be
accompanied by specific supporting references in the record.
See L.R. 56.1(a)(3), (b)(3)(B). Any fact that is not
properly disputed and controverted is admitted. See
L.R. 56.1(a)(3), (b)(3)(C).
for example, counter-defendants' response to EC
Grow's asserted fact that its trademark was granted
incontestable status in July 2014.  ¶
Their response is this: “Admit, but should be
considered in the context of Additional Fact ¶¶
7-9.”  ¶ 13. “Admit, but” or
“not disputed, but” responses are not allowed. If
a party admits a fact, then it is admitted. The additional
context counter-defendants want me to consider must be
asserted in a separate, additional fact (as they properly
did) and then argued in the briefing. EC Grow is guilty of
this type of response too. See, e.g., [90-1] ¶
23. Facts responded to in that way are deemed admitted.
makes and sells ice melt using the trademark “LIGHTNING
FAST.”  ¶¶ 1, 14. It chose
“lightning” to describe the product as
“working quickly.” [101-1] ¶ 8. EC Grow
registered the mark in 2008 and claimed the date of first use
as September 10, 2007, for “chemical compounds used to
melt ice and snow.”  ¶ 13.
granted incontestable status in 2014.  ¶ 13. EC
Grow's ice melt is a granular blend of calcium chloride,
magnesium chloride, and sodium chloride that is enhanced with
AMC, and it melts to negative 15 degrees Fahrenheit. 
¶ 14. The pellets are blue and sold in 50-pound bags and
1, 000-pound “super sacks.”  ¶¶ 14-
Visions and Salt Xchange make and sell ice melt too. 
¶¶ 2-3. They are separate entities, but they share
a president (and some employees and contractors), and they
hold themselves out as public partners.  ¶¶
5-6, 12; [101-1] ¶ 1. Crystal Visions manufactures
packaged ice melt products, and Salt Xchange manufactures
bulk ice melt products, but the two buy each other's
products and resell them.  ¶¶ 9-11; [101-1]
2016, Crystal Visions applied for registration of the
“LIGHTNING PREMIUM ICE MELTER” mark, and the mark
was registered in 2017, claiming a date of first use as July
1, 2011, for “anti-freezing and de-icing
preparations.”  ¶ 16. The U.S. Patent and
Trademark Office required it to disclaim the “PREMIUM
ICE MELTER” part.  ¶ 18. Both Crystal Visions
and Salt Xchange make and sell their ice melts under the
“LIGHTNING PREMIUM ICE MELTER” mark. 
¶¶ 19- 21. Both partner companies' products are
made of sodium chloride that is treated with magnesium
chloride, an organic carbohydrate, and a corrosion inhibitor.
 ¶¶ 19, 21. Both companies' products are