Typically, a plaintiff chooses the most convenient place for their lawsuit and the Defendant, unless that location happens to be where they also wish, fight this choice.  Under the principle of "forum non conveniens", defendants are often successful in relocating the litigation to their home turf.  This is mainly based on the fact that the Defendant should receive whatever local benefit and efficiency because they are the ones on the hook.  In federal litigation, with diversity jurisdiction especially, early federal law sought to curb local favoritism.  In the same way, state jurisprudence has evolved to encompass a framework for evaluating where a lawsuit should be conducted.  Choice of forum is very different from choice of law, which is what law to apply. 

Here, in Taylor v. Lemans Corporation, the First Appellate District affirmed a Cook County Circuit Court decision denying Lemans' Motion to Transfer on grounds of forum non conveniens.  The facts are essential to determining the proper forum for a lawsuit.  Here, this litigation originated from a motocross accident which occurred in Bureau County, Illinois.  The plaintiff sued for product liability and chose cook county as his forum even though he did not live there.  Despite that, the Defendant's motion was denied because, as the Appellate Court reasoned, the Plaintiff's choice should be given some deference and Cook County is not inappropriately chosen despite its large caseload and distance from the accident.  Witness testimony can be obtained through depositions and computer and internet access have made the physical location of accidents less significant.

So, the intersection of technology and the law seems to shaping civil procedure and how Courts perceive the relative positions of the litigants and their ability to obtain, review, and process information. The ruling, and its supporting reasoning, indicates that Defendants need to be sharper with their forum non conveniens arguments and that they should make plans to litigate more cases in Cook County rather than collar counties (or rural western and downstate counties) because plaintiffs will undoubtedly seek to sue in Cook County because jury verdicts are viewed as more favorable to plaintiffs there than in other counties in Illinois.  

Contacting a business litigation attorney prior to litigation can help shape contracts or other materials to specify a particular favorable forum in advance of issues.  Further, once litigation is commenced, business litigation attorneys can help craft stronger, more developed arguments in favor of forum non conveniens to ensure that litigation plays out in more favorable fora to both minimize damages if there is to be an adverse ruling and to provide for better leverage in settlement negotiations after plaintiff's counsel is faced with many long commutes to litigate the case.

The pizza business has deep roots in Chicago.  While pizza is originally Italian (Neopolitan), Italian-Americans, blessed with greater availability of meats and cheese than they had in Italy, took pizza to new heights.  One unique style of pizza was created in Chicago: the deep dish pizza.  Full disclosure, I love deep dish pizza but my wife, who is half Italian and speaks Italian, had decided it is not pizza but rather that is a casserole.  While that discussion is off-topic to the legal issues of this article, I wanted to throw that out there for discussion purposes.

Anyways, it turns out that Giordano's pizzeria, a local famous pizza chain with great deep dish pizza, was faced with a dilemma common to businesses throughout the world: a rival business wants to confuse your customers into thinking they are somehow affiliated or are your business.  They ride on the coattails of excellence and often ruin great reputations with less than stellar offerings.  Lets face it, stealing someone's name is a free way to get the benefits of a great trademark (consumer trust and confidence in the good/service).  This is called trademark dilution.  It is also trademark infringement.

As the Chicago Tribune reports, Giordano's sued its rival, Giordano Fresh & Crispy Pizza Co. after sending a cease and desist letter.  A cease and desist letter is often sent prior to instituting suit because it is cheaper to do this than sue but also to establish intentional infringement, which allows for trebling of damages under federal trademark law.

In their lawsuit, Giordano's notes there was actual customer confusion when customers ordered from the rival pizzeria thinking they'd be getting authentic Giordano's pies but instead were delivered substandard fare.  Their logos, according to the customer, were similar enough that he was confused.

A business can obtain a trademark in several ways.  A common law trademark is created the moment a business or person uses a mark in commerce locally.  Common law marks are less useful for enforcement because unlike federal marks, damages are not presumed, the Mark is restricted to areas where it is commercially being used, and seniority strongly governs.  

Federal marks require registration.  The Lanham Act, Section 43 of forbids any false designation of origin and states:
[a]ny person who, on or in connection with any goods or services… uses in commerce any word, term, [or] name… or any false designation of origin… which is likely to cause confusion, or to cause mistake, or to deceive as to the affiliation, connection, or association of such person with another person, or as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or in commercial advertising… shall be liable in a civil action by any person who believes that he or she is or is likely to be damaged by such act.

15 U.S.C. § 1125(a)(1).

To succeed on the merits of its trademark infringement claims, Giordano's must show: (1) that its Marks are valid trademarks they owned; and (2) Defendant’s use of the Infringing Mark creates a likelihood of confusion. Ty, Inc. v. Jones Group, Inc., 237 F. 3d 891, 897 (7th Cir. 2001).  “The ‘keystone’ of trademark infringement is ‘likelihood of confusion’ as to source, affiliation, connection or sponsorship of goods or services among the relevant class of customers and potential customers.” Sands, Taylor & Wood Co. v. Quaker Oats Co., 978 F.2d 947, 957 (7th Cir. 1992).

The Seventh Circuit has applied a multi-factor test in order to evaluate whether a likelihood of confusion exists between two marks: (1) the similarity of the marks in appearance and suggestion; (2) the similarity of the products (do I need to find services here?); (3) the area and manner of concurrent use; (4) the degree of care likely to be used by consumers; (5) the strength of the plaintiff’s mark; (6) whether any actual confusion exists; and (7) the defendant’s intent to palm off its goods as those of the plaintiffs.” off its goods as those of the plaintiffs.” Ty, Inc., 237 F.3d at 897-898. 

None of these factors by itself is dispositive of a likelihood of confusion, and different factors will weigh more heavily depending on the facts and circumstances of each individual case. Id. Even though no one factor is decisive, the similarity of the marks, the intent of the defendant, and evidence of actual confusion are the “most important factors” in a likelihood of confusion case. Id.

In this case, Giordano's, from the limited information in this article, seems to be making its case for trademark infringement and dilution. The names of the pizzeria's are similar but a name alone cannot be used to exclude without more.  As indicated above, each factor is weighed, and none of them alone are dispositive.  The fact customers are confused, that Giordano's mark is so much stronger and more famous, the relative advertising budgets, the similarity of their product offers, and the fact that Defendant seems to be palming off substandard pizza's using Giordano's name all seem to neatly fit within the Du Pont factors outlined by the 7th Circuit above.  As such, this is a fascinating case of a very public trademark action by a well known local chain.

If you own or operate a business that seeks to enforce or obtain trademarks, do not hesitate to contact a trademark attorney like those at Nair Law LLC.

Some laws permeate further than most companies realize.  One of them is the Illinois Wage Act.  Since stiffing employees is a real pernicious tort, the Illinois legislature wrote its Wage Act law to empower employees to recover those improperly withheld wages in lawsuits.  The Wage Act gives workers those improperly withheld wages, attorneys fees, and court costs to ensure the worker is made whole and the employer realizes the entire costs of its wrongful withholding of wages.  Wages themselves are broadly defined and include more than just salary.

In Elsner v. Brown, 2013 Ill App. (2d) 120209 (September 10, 2013), the 2nd Appellate District affirmed a DuPage County ruling that a former employee was entitled to enforce a three year employment contract.  The employer challenged the trial court's jurisdiction, alleging that it had insufficient minimum contacts with the state to tolerate jurisdiction under either Illinois or federal due process and that the trial court's jurisdiction over them would violate "notions of fair play and substantial justice."  Since they had no physical presence, and did not have a headquarters in Illinois, the Defendant reasoned that Illinois was an improper forum for this dispute.  The trial court and the Appellate Court disagreed.  

The courts determined that the Wage Act has no residency requirement for employees or employers.  Under the Wage Act, compensation as spelled out in an employment contract could be enforced by any employee who could allege sufficient contacts with the forum to permit litigation.  

Here, the defendant company did have sufficient contacts and the court then enforced the plain language of the employment contract which mandated aggregate sum payments for the remaining balance of the contract since the employee was not terminated for cause.  Finally, since the contract was poorly drafted and did not explicitly address attorneys fees, the Wage Act's attorneys fees provision enabled the employee to obtain his attorneys fees and costs as well as those contested wages.

Businesses would be wise to consult with Illinois attorneys to determine their potential exposure to Wage Act litigation and assess whether their agreements, policies, and procedures increase or decrease their potential losses in litigation.  Nair Law LLC is well positioned to minimize corporate exposure and allow companies to operate within the confines of the Wage Act and other Illinois and federal employment laws.

Employees would be wise to enforce their rights.  The laws are favorable to them and contacting an attorney at Nair Law LLC is free.  Since attorneys fees and costs are recoverable, employees can rest assured that their legal team will fight hard for their rights under the Wage Act and other Illinois and federal laws.

The EEOC, on behalf of two Muslim truckers, sued a Morton, IL based trucking company for failure to accommodate the trucker's religious rights when they demanded that their employees convey alcohol.  This simple, straight-forward religious accommodation lawsuit belies the often confused regulatory approach to employment discrimination when it comes to religious accommodation and the magic term "reasonable" in terms of the accommodations that employers and employees can expect for their personal religious beliefs.

The MineolaAmerican reports that a local wholesale car dealership which does business with Carmax, a large consumer-oriented car reseller and purchaser, has sued the massive dealer for anti-trust violations stemming from their refusal to allow dealers to supply car history reports from any information company rather than Carmax's preferred vendor(s).

The Chicago Tribune reports that a local manufacturer is facing a total of at least $50,000 in OSHA fines for violations of employee safety standards.

OSHA, an arm of the Department of Labor, is entrusted with protecting employee safety and has recently come under fire for failing to protect workers against long term exposure to dangerous materials, chemicals, and manufacturing processes.

OSHA, however, is very well set up to inspect and fine companies for more routine, established risks such as fall safety, electrical hazards, and vision protection.

One local business, Phoenix Electric Mfg. Co., has discovered, the hard way, that OSHA is very good at inspecting heavy machinery to determine whether they might pose a risk to employees.  OSHA inspections are a big danger to businesses, but with the proper legal counsel, they can pose a greatly diminished threat.

The situation that Phoenix faces illustrates this point well.

Donald Trump, not one to shy away from the headlines, reportedly has dismissed his defamation lawsuit against comedian Bill Mahr.  Trump sued Mahr over his offer to donate $5 million to charity if Trump could prove that he was not the progeny of an orangutan.  Trump, clearly irate, sued Mahr for defamation, however, the lawsuit, if only based on those comments, would be frivolous and without legal foundation because that kind of comment is not defamatory for a number of reasons.  

The Chicago Tribune reports that Walgreen Co. has been sued by a California consumer for alleged labeling violations on their Vitamin E supplements.  The consumer objects to allegedly misleading claims on Walgreen's Vitamin E 400 IU Dietary Supplement that says the product "naturally contributes to cardiovascular health by helping to protect LDL cholesterol from oxidation which may cause cellular damage."

The complaint alleges that these statements are false and misleading based on clinical data that disproves these statements and indicates that the product is ineffective as marketed.

Lawsuits against supplement manufacturers are only just the beginning of the process.  This case illustrates why both consumers and manufacturers need to be very aware of the legal terrain in supplements and why consumers often mistake natural supplements for regulated drugs.

It is not uncommon for property owners in Chicago or its suburbs to own a condo or single family home and then, when they have the means, purchase a winter home where they flee during the winter.  While global warming has created some very mild winters in Chicago recently, this trend is not changing.

A recent Illinois tax decision should further incentivize property owners in Illinois to hold onto their Illinois properties and avoid Illinois taxation.

Product liability actions are premised on three major categories:
1. Failure to Warn
2. Defective Design
3. Manufacturing Defect

The Chicago Tribune reports that the parents of a toddler have filed suit against the manufacturer of their baby dresser for a product defect and for failure to warn about the dangers of their dresser when it tipped over and killed their 2 year old son.  Their case seems to allege both a failure to warn as well as defective design of the furniture.