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.

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.

Eminent domain is one of the harshest tools government can assert to curtail property rights.  Zoning regulates how a property owner may use their property, but eminent domain goes to their right to own the property itself.  Traditionally victorious, the government occasionally is overzealous in its application of the doctrine against property owners.  Recently, the Chicago Tribune wrote about a victory for property owners against a forfeiture action brought by the US government.  The case involves a family owned motel in Tewksbury, Massachusetts.

The ABA Journal is reporting about Virginia's discriminatory application of its FOIA laws where out of state residents are unable to use the law to obtain public records.  Apparently 2 separate cases have been brought, one in which a father lived in Virginia but subsequently moved and wanted paperwork related to this divorce, child custody, and child support payments.  The other is a real estate data aggregator that requested public real estate data and was denied because he was an out of state petitioner.

The Chicago Tribune report on a fire-breathing actor who was injured during his routine provides a model lesson for employers on worker safety and potential administrative action for failing to adhere to OSHA regulations for employee safety.

Here, the employee was an actor who happened to very publicly injure himself when his face and throat caught on fire while attempting a fire breathing routine.

The media firestorm, however, quickly engulfed reality and blew the matter out of proportion.  It was so widely reported that an OSHA investigator reportedly showed up at the Civic Opera House to speak to officials and investigate their compliance with OSHA regulations.