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Crystal Visions, Inc. v. EC Grow Inc.

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

September 3, 2019

Crystal Visions, Inc., Plaintiff,
v.
EC Grow, Inc., Defendant. and EC GROW, INC., Counter-Plaintiff,
v.
CRYSTAL VISIONS, INC. and SALT XCHANGE, INC., Counter-Defendants.

          MEMORANDUM OPINION AND ORDER

          MANISH S. SHAH UNITED STATES DISTRICT JUDGE.

         EC 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.

         I. Legal Standard

         Summary 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).

         II. Background

         A. Local Rule 56.1

         The 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).

         Take, for example, counter-defendants' response to EC Grow's asserted fact that its trademark was granted incontestable status in July 2014. [87] ¶ 13.[1] Their response is this: “Admit, but should be considered in the context of Additional Fact ¶¶ 7-9.” [87] ¶ 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.

         B. Facts

         EC Grow makes and sells ice melt using the trademark “LIGHTNING FAST.” [87] ¶¶ 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.” [87] ¶ 13.

         It was granted incontestable status in 2014. [87] ¶ 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. [87] ¶ 14. The pellets are blue and sold in 50-pound bags and 1, 000-pound “super sacks.” [87] ¶¶ 14- 15.

         Crystal Visions and Salt Xchange make and sell ice melt too. [87] ¶¶ 2-3. They are separate entities, but they share a president (and some employees and contractors), and they hold themselves out as public partners. [87] ¶¶ 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. [87] ¶¶ 9-11; [101-1] ¶ 1.

         In 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.” [87] ¶ 16. The U.S. Patent and Trademark Office required it to disclaim the “PREMIUM ICE MELTER” part. [87] ¶ 18. Both Crystal Visions and Salt Xchange make and sell their ice melts under the “LIGHTNING PREMIUM ICE MELTER” mark. [87] ¶¶ 19- 21. Both partner companies' products are made of sodium chloride that is treated with magnesium chloride, an organic carbohydrate, and a corrosion inhibitor. [87] ¶¶ 19, 21. Both companies' products are aqua-colored ...


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