Design Ideas Ltd v. Meijer, Inc. et al
Filing
99
OPINION entered by Judge Sue E. Myerscough on 5/9/2016. Defendant Meijer, Inc.'s Partial Motion to Dismiss First Amended Complaint, d/e 46 is GRANTED IN PART and DENIED IN PART. (SEE WRITTEN OPINION) (MAS, ilcd)
E-FILED
Tuesday, 10 May, 2016 02:43:51 PM
Clerk, U.S. District Court, ILCD
IN THE UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF ILLINOIS
SPRINGFIELD DIVISION
DESIGN IDEAS, LTD., an Illinois
Corporation,
Plaintiff,
v.
MEIJER, INC., a Michigan
Corporation; WHITMOR, INC.,
a Delaware corporation; and
THE TJX COMPANIES, INC.,
a Delaware corporation,
Defendants.
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No. 15-cv-03093
OPINION
SUE E. MYERSCOUGH, U.S. District Judge.
This cause is before the Court on Defendant Meijer, Inc.’s
Partial Motion to Dismiss First Amended Complaint (d/e 46).
Meijer seeks to dismiss Counts II, VI, and X.
The Motion is GRANTED IN PART and DENIED IN PART.
Counts II and VI are dismissed as barred by the statute of
limitations. However, the motion to dismiss Count X is denied
without prejudice.
I. INTRODUCTION
Plaintiff originally filed suit in March 2015. On November 10,
2015, Plaintiff filed a First Amended Complaint against Defendants
Meijer, Inc. (Meijer), Whitmor, Inc. (Whitmor), and The TJX
Companies, Inc. (TJX). Plaintiff’s Complaint consists of nine
counts1 alleging numerous causes of action, including copyright
infringement under the Copyright Act of 1976, federal unfair
competition under the U.S. Trademark Act, violation of the Digital
Millennium Copyright Act, common law unfair competition,
violations of the Illinois Consumer Fraud and Deceptive Practices
Act, and breach of contract. See First Am. Compl. ¶ 1 (d/e 42).
On November 24, 2015, Meijer filed a Partial Motion to
Dismiss First Amended Complaint (d/e 46).2 Meijer moves to
dismiss Counts II (copyright infringement) and Count VI (violation
of the Digital Millennium Copyright Act) as time barred and barred
by the release contained in the parties’ 2007 Settlement
The First Amended Complaint contains Counts I through IV and Counts VI
through X. It does not contain a Count V.
2 On December 1, 2015, Meijer filed an Answer to the remaining counts. See
Answer (d/e 47).
1
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Agreement. Meijer moves to dismiss Count X (breach of the
Settlement Agreement) as preempted by the Copyright Act.
II. FACTS ALLEGED IN THE COMPLAINT
As is relevant to Meijer’s Motion to Dismiss, Plaintiff’s First
Amended Complaint contains the following allegations.
In 2007, Plaintiff sued Meijer for design patent and trademark
infringement of certain metal mesh desk accessories. First. Am.
Compl. ¶ 9; ¶ 13 (citing Central District of Illinois Case No. 0703107). Plaintiff alleged that Meijer began “sourcing knock-offs” of
Plaintiff’s mesh products and importing infringing goods into the
United States for sale. Id. ¶ 12. On October 2, 2007, Plaintiff and
Meijer entered into a confidential Settlement Agreement. Id. ¶ 13.
Around the time of the 2007 settlement, Plaintiff became
aware that Meijer was selling identical copies of Plaintiff’s
decorative magnets (DOODLES magnets). Id. ¶ 14; see also ¶ 52
(describing Plaintiff’s “original and copyrighted DOODLES
decorative magnet designs and its Boho packaging”). Plaintiff did
not pursue ligation on Meijer’s “knock-offs” of Plaintiff’s DOODLES
magnets. Id. ¶ 18. The Settlement Agreement, however, addressed
the potential claims relating to Plaintiff’s DOODLES magnets. See
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Am. Compl., Exhibit P; see also Bogie v. Rosenberg, 705 F. 3d 603,
608 (7th Cir. 2013) (on a motion to dismiss under Rule 12(b)(6),
the court can consider exhibits attached to the complaint);
Fed.R.Civ.P. 10(c) (“A copy of a written instrument that is an
exhibit to a pleading is part of the pleading for all purposes”).
In particular, Meijer agreed that:
it will not purchase, order, create, manufacture, sell or
distribute any other goods identical or substantially the
same as Design Ideas’ (i) Mesh Products, (ii) DOODLES
magnets, or (iii) containing any Design Ideas intellectual
property, or (iv) use any Design Ideas intellectual
property, the MESH TRADE DRESS or the
STEPSORTER mark, except as provided herein.
Id. ¶ 2(b). The Settlement Agreement also contained a Mutual
Release, which provides in party as follows:
(a) As to Meijer. By Design Ideas’ execution of this
Agreement, and considered upon Meijer’s full and
truthful representations and warranties contained
herein, as well as Meijer’s full performance, including
final payment for the purchase transactions required by
this Agreement, Design Ideas shall be deemed to have
executed the following release in favor of Meijer,
precluding any litigation by or between it and Meijer for
conduct concerning this matter that occurred prior to
the date hereof: Design Ideas hereby remises, release,
acquits, satisfies, and forever discharges Meijer hereto,
of and from any and all manner of action and actions,
cause and causes of action, suits, debts, dues, sums of
money, accounts, reckonings, bonds, bills, specialties,
covenants, contracts, controversies, agreements,
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promises, variances, trespasses, damages, judgments,
executions, claims and demands whatsoever, in law or
in equity, which Design Ideas ever had, now has, or
which any personal representative, successor, heir or
assign of said party, hereafter can, shall, or may have,
against Meijer, for, upon, or by reason of Meijer’ s
ordering, acquisition, purchase, sale and/or distribution
of the Mesh Products and DOODLES magnets in issue
in this matter from the beginning of the world to the day
of these presents.
Id. 3(a).
In 2008, Plaintiff acquired ownership of the design of certain
decorative clips called SPARROW CLIPS and began offering the
design for sale using the SPARROW CLIPS trademark. First Am.
Compl. ¶ 20 (also providing that the U.S. Copyright Office
registered Plaintiff’s copyright in the SPARROW CLIPS design on
May 29, 2013); ¶23. In May, August, and September 2012, Meijer
ordered SPARROW CLIPS from Plaintiff. Id. ¶¶ 33, 34. Plaintiff
alleges that, after Meijer terminated its purchase of SPARROW
CLIPS from Plaintiff, Meijer began selling “knock-off versions” of
Plaintiff’s SPARROW CLIPS, called CANARY CLIPS. Id. ¶¶ 38, 45.
Plaintiff alleges that the CANARY CLIPS sold by Meijer are
essentially identical to Plaintiff’s SPARROW CLIPS but deleted
Plaintiff’s “copyright management information.” Id. ¶¶ 45, 47.
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The First Amended Complaint raises copyright infringement
and other claims related to the DOODLES magnets and the
SPARROW CLIPS. Regarding the SPARROW CLIPS, Plaintiff brings
a copyright infringement claim against defendants Meijer,
Whitmor, and TJX (Count I), an unfair competition claim against
defendants Meijer, Whitmor, and TJX (Count III), a Digital
Millennium Copyright Act claim against defendants Whitmor, Inc.
and Meijer (Count IV), a common law unfair competition claim
against defendants Meijer, Whitmor, and TJX (Count VII), an
Illinois Deceptive Trade Practices Act claim against defendants
Meijer, Whitmor, and TJX (Count VIII), and an Illinois Consumer
Fraud and Deceptive Practices Act claim against Meijer, Whitmor,
and TJX (Count IX). Regarding the DOODLES magnets, Plaintiff
brings a copyright infringement action against Meijer (Count II)
and a Digital Millennium Copyright Act claim against Meijer (Count
VI). Plaintiff also brings a state law claim for breach of Settlement
Agreement against Meijer (Count X).
III. JURISDICTION
This Court has subject matter jurisdiction because Plaintiff’s
claims are based on federal law. See 28 U.S.C. § 1331 (“The
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district courts shall have original jurisdiction of all civil actions
arising under the Constitution, laws, or treaties of the United
States”). The Court has supplemental jurisdiction over the state
law claims. See 28 U.S.C. § 1367(a).
IV. LEGAL STANDARD
When considering a motion to dismiss under Rule 12(b)(6),
the Court construes the complaint in the light most favorable to
the plaintiff, accepting all well-pleaded allegations as true and
construing all reasonable inferences in the plaintiff’s favor.
Tamayo v. Blagojevich, 526 F.3d 1074, 1081 (7th Cir. 2008).
However, the complaint must set forth facts that plausibly
demonstrate a claim for relief. Bell Atlantic Corp. v. Twombly, 550
U.S. 544, 547 (2007). Plausibility means the plaintiff has alleged
facts that allow the court to reasonably infer that the defendant is
liable for the misconduct alleged. Ashcroft v. Iqbal, 556 U.S. 662,
678 (2009). Merely reciting the elements of a cause of action or
supporting claims with conclusory statements is insufficient to
state a cause of action. Id.
“[C]omplaints do not have to anticipate affirmative defenses
to survive a motion to dismiss.” United States v. Lewis, 411 F.3d
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838, 842 (7th Cir. 2005); Hollander v. Brown, 457 F.3d 688, 691
n.1 (2006) (“a federal complaint does not fail to state a claim
simply because it omits facts that would defeat a statute of
limitations defense”). Generally, the running of the statute of
limitations is an affirmative defense. Chi. Bldg. Design, P.C. v.
Mongolian House, Inc., 770 F.3d 610, 613 (7th Cir. 2014).
Dismissal under Rule 12(b)(6) is appropriate, however, when the
complaint contains sufficient facts to establish that the action is
barred by an affirmative defense, “such as when a complaint
plainly reveals that an action is untimely under the governing
statute of limitations.” Lewis, 411 F.3d at 842; see also Hollander,
457 F.3d at 691 n.1 (noting that “dismissal under Rule 12(b)(6) on
the basis of a limitations defense may be appropriate when the
plaintiff effectively pleads herself out of court by alleging facts that
are sufficient to establish the defense”).
V. ANALYSIS
Meijer moves to dismiss Counts II and VI as barred by the
statute of limitations and barred by the release in the parties’
Settlement Agreement and seeks Rule 11 sanctions. Meijer also
moves to dismiss Count X as preempted by the Copyright Act.
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A.
Counts II and VI Are Barred by the Statute of Limitations
A civil action under the Copyright Act must be brought
“within three years after the claim accrued.” 17 U.S.C. § 507(b).
The three-year limitation applies to Plaintiff’s copyright
infringement claim (Count II) and Digital Millennium Copyright Act
claim (Count VI). See Goldman v. Healthcare Mgmt. Sys., Inc., 559
F. Supp. 2d 853, 862 (W.D. Mich. 2008) (applying three-year
statute of limitations to Copyright Act and Digital Millennium
Copyright Act claims). “[T]he copyright statute of limitations starts
to run when the plaintiff learns, or should as a reasonable person
have learned, that the defendant was violating his rights.” Gaiman
v. McFarlane, 360 F.3d 644, 653 (7th Cir. 2004).
Meijer argues that Plaintiff has pleaded itself out of court on
Counts II and VI by alleging that Meijer’s purported infringement of
the DOODLES magnets occurred in 2007 and that Plaintiff knew of
this alleged infringement. And, because the statute of limitations
bar is apparent from the face of the Complaint, Plaintiff was
required to plead any exception to the statute of limitations upon
which it relied. Meijer asserts that Plaintiff has not pleaded any
exceptions to the statute of limitations.
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Plaintiff argues that Meijer is equitably estopped from raising
the statute of limitations and that Plaintiff has pleaded facts in
support of equitable estoppel. Pl.’s Opp. at 5, 9 (Sealed) (d/e 55).
Plaintiff asserts that it reasonably refrained from pursuing its
then-timely DOODLES magnet claims due to Meijer’s conduct and
representations in the Settlement Agreement—namely Meijer’s
promise to refrain from continued infringement and unauthorized
use of Plaintiff’s intellectual property. Id. at 9, citing Am. Compl.
¶¶ 13, 18. Plaintiff also requests leave to file an amended
complaint if the factual basis in the First Amended Complaint is
inadequate to support an estoppel theory. Id. at 9 n.4.
As noted above, a statute of limitations defense may be
resolved on a motion to dismiss when the complaint contains
sufficient facts to establish that the action is barred by the
applicable statute of limitations. Lewis, 411 F.3d at 842. The
Court agrees with Meijer that the First Amended Complaint
contains sufficient facts to show that the alleged infringement
related to the DOODLES magnets occurred in 2007. Applying the
three-year statute of limitations, the statute of limitations on
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Counts II and VI expired in 2010, well before Plaintiff’s filing of this
lawsuit in November 2015.
Therefore, the issue is whether the First Amended Complaint
contains sufficient facts—or whether Plaintiff could plead sufficient
facts in an amended pleading—to suggest that Meijer is equitably
estopped from asserting a statute of limitations defense.3
A defendant is equitably estopped from asserting the
expiration of the statute of limitations as a defense if the defendant
took “active steps” to prevent or delay the plaintiff from bringing a
timely lawsuit. Ashafa v. City of Chi., 146 F.3d 459, 462-63 (7th
Cir. 1998); see also Shropshear v. Corp. Counsel of City of Chi.,
275 F.3d 593, 598 (7th Cir. 2001) (“Any deliberate or otherwise
blameworthy conduct by the defendant that causes the plaintiff to
miss the statutory deadline can be the basis for a defense of
equitable estoppel in federal limitations law”). The defendant does
not have to intentionally mislead or deceive the plaintiff, or even
intend to induce delay, so long as the plaintiff reasonably relied on
Plaintiff includes additional facts in its response to the Motion and asks
requests leave to amend if the allegations in the First Amended Complaint are
insufficient. While leave to amend should be freely given, a district court may
deny a request for leave to amend if amendment would be futile. Gandhi v.
Sitara Capital Mgmt. LLC, 721 F.3d 865, 869 (7th Cir. 2013) (a district court
may deny a request for leave to amend if the amendment would be futile).
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the defendant’s conduct or representations in forbearing suit.
Bomba v. W.L. Belvidere, Inc., 579 F.2d 1067, 1070-1071 (7th Cir.
1978) (noting that equitable estoppel is based on the principle that
“no man will be permitted to profit from his own wrongdoing in a
court of justice”); see also Theriot v. Captain James Sprinkle, Inc.,
30 F. 3d 136 (7th Cir. 1994) (unpublished) (affirming dismissal of
complaint as barred by the statute of limitations where the plaintiff
failed to allege sufficient facts to establish equitable estoppel
applied). Examples of “active steps” include when the defendant
promises the plaintiff that the defendant will not to plead the
statute of limitations pending settlement talks or the defendant
conceals from the plaintiff evidence the plaintiff needs to determine
whether he has a claim. Singletary v. Continental Ill. Nat’l Bank &
Trust Co. of Chi., 9 F.3d 1236, 1241 (7th Cir. 1993); see also
Cancer Found., Inc. v. Cerberus Capital Mgmt., LP, 559 F.3d 671,
676 (7th Cir. 2009) (“Classic examples [of equitable estoppel]
include hiding evidence, destroying evidence, or promising not to
plead the statute of limitations”); Doe v. Blue Cross & Blue Shield
United of Wis., 112 F. 3d 869, 876 (7th Cir. 1997) (“The most
common example of equitable estoppel is where the defendant asks
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the plaintiff to delay the filing of his suit pending negotiations
aimed at resolving the parties’ dispute out of court”).
In this case, Plaintiff claims Meijer is equitably estopped from
raising the statute of limitations defense because Meijer’s “hollow
promise in the parties’ settlement agreement to refrain from
continued infringement and unauthorized use of [Plaintiff’s]
intellectual property caused [Plaintiff] to withdraw its then timely
suit against Meijer.” Opp. at 9. Plaintiff also claims that it
reasonably relied on Meijer’s conduct and representation. Id.
The Court disagrees that Meijer is equitably estopped from
asserting a statute of limitations defense. Meijer’s actions
regarding the Settlement Agreement are not the type of “active
steps” contemplated by the equitable estoppel doctrine. Meijer in
no way hid evidence or induced Plaintiff to miss the statutory
deadline. The parties reached a mutually agreed Settlement
Agreement, which extinguished any claims Plaintiff had regarding
Meijer’s alleged infringement of Plaintiff’s DOODLES magnets and
left Plaintiff only with a remedy for breach of contract. See, e.g.,
Wrightsell v. Cook Cnty., Ill., 599 F.3d 781, 784 (7th Cir. 2010)
(noting that “in an ordinary civil settlement it is taken for granted
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that the settlement extinguishes all rights to further prosecution of
the suit”).
In addition, the Court finds persuasive the reasoning in
Pawlick v. Lawson Products, Inc., No. 12 C 3424, 2012 WL
5197553, at *3 (N.D. Ill. Oct. 19, 2012), which held that equitable
estoppel was unavailable to a plaintiff seeking to revive a five-yearold discriminatory discharge claim where the defendant breached
the terms of the settlement agreement surrounding the claim. The
Pawlick court found that, even if the defendant entered into the
settlement agreement to prevent the plaintiff from suing but
intended to dishonor the agreement when the limitation period
ran, and even if such conduct could be “interpreted as the kind of
‘active steps’ a defendant might take to forestall an employment
discrimination suit,” the case differed from the typical case where
equitable estoppel applies. Id. Specifically, in the typical case
where equitable estoppel applies, the plaintiff has no remedy,
whereas the Pawlick plaintiff could sue for breach of the agreement
and, in fact, did so by bringing a state law contract claim. Id.
Therefore, the court found equitable estoppel unavailable to the
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plaintiff and the discrimination claim was barred by the statute of
limitations. Id.
Similarly here, the parties reached a mutually agreed
settlement resolving Plaintiff’s DOODLES claim against Meijer.
That Plaintiff now believes that Meijer has breached that
agreement is a separate issue from whether Plaintiff can bring the
DOODLES claim, which is now barred by the statute of limitations.
Plaintiff’s remedy is an action for breach of the agreement
(provided such cause of action is not preempted, as discussed
further below). Consequently, Counts II and VI are barred by the
statute of limitations.
Because the Court finds Counts II and VI are barred by the
statute of limitations, the Court need not address Meijer’s claim
that Counts II and VI are barred by the release in the Settlement
Agreement.
Meijer also seeks Rule 11 sanctions against Plaintiff,
asserting that Plaintiff “pushed the bounds of Rule 11” by filing a
time-barred claim. Def. Mot. at 4. Meijer’s request for sanctions is
denied for failure to comply with the procedural requirements of
Rule 11. See Corley v. Rosewood Care Ctr., Inc., 142 F.3d 1041,
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1058 (7th Cir. 198) (finding that the district court abused its
discretion by imposing Rule 11 sanctions where “neither the
defendants nor the court complied with the rule’s procedural
requirements”). Specifically, Meijer failed to file a separate motion
for sanctions and failed to afford Plaintiff the “safe harbor” within
which the offending party can withdraw or correct the pleading.
See Fed.R.Civ.P. 11(c)(2); Matrix IV, Inc. v. Am. Nat’l Bank & Trust
Co. of Chi., 649 F.3d 539, 552 (7th Cir. 2011). Because Meijer did
not comply with the procedural requirements of Rule 11, the
request for sanctions is denied.
B.
Count X as Pleaded Is Not Preempted by the Copyright
Act
Meijer next argues that Count X—Plaintiff’s state law breach
of contract claim for the alleged breach of the 2007 Settlement
Agreement—is preempted by the Copyright Act.
In Count X, Plaintiff alleges that Meijer, in the Settlement
Agreement, agreed not to “purchase, order, create, manufacture,
sell or distribute any other goods . . . containing any [Plaintiff]
intellectual property or [iv.] use any [Plaintiff] intellectual property
. . . except as provided herein.” First Am. Compl. ¶ 91 (quoting the
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2007 Settlement Agreement). Plaintiff alleges that Meijer breached
the Settlement Agreement by its “unauthorized ordering, creating,
manufacturing, selling and distributing of goods containing
[Plaintiff’s] intellectual property, specifically [Plaintiff’s] SPARROW
CLIPS design and SPARROW CLIPS mark, in violation of the
express provisions of the 2007 Settlement Agreement.” Id. ¶ 92.
The Copyright Act preempts “legal or equitable rights that are
equivalent to any of the exclusive rights within the general scope of
copyright as specified by section 106 in works of authorship that
are fixed in a tangible medium of expression and come within the
subject matter of copyright as specified by sections 102 and
103[.]”4 Pursuant to ¶ 106, the owner of the copyright has the
exclusive right to (1) reproduce the copyrighted work; (2) prepare
derivative works based on the copyrighted work; (3) distribute
copies of the copyrighted work; (4) perform the copyrighted work
publicly; and (5) display the copyrighted work publicly. 17 U.S.C.
§ 106. The purpose of preemption is to ensure that federal laws
Section 102 lists “works of authorship” to include literary, musical, dramatic,
choreographic, pictorial, audiovisual and architectural works, as well as
sound recordings. 17 U.S.C. § 102. Section 103 provides that the “subject
matter of copyright as specified by section 102 includes compilations and
derivative works,” subject to certain exceptions. 17 U.S.C. § 103.
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are not “removed or altered by state law” and ensure that “the
states do not create rights that federal law does not recognize.”
BanxCorp v. Costco Wholesale Corp., 723 F. Supp. 2d 596, 616
(S.D.N.Y. 2010).
Two conditions must be met before a right under state law is
preempted. Orioles, Inc. v. Major League Baseball Players Ass’n,
805 F.2d 663, 674 (7th Cir. 1986). “First, the work in which the
right is asserted must be fixed in tangible form and come within
the subject matter of copyright” as specified in 17 U.S.C. § 102.
Id. “Second, the right must be equivalent to any of the rights”
specified in 17 U.S.C. § 106. Id. A right under state law is
equivalent to a right within the general scope of copyright if the
right “is infringed by the mere act of reproduction, performance,
distribution, or display.” Orioles, 805 F.2d at 677 (quotations and
citations omitted).
The parties, in their briefs, focus on the second part of the
test: whether Plaintiff’s contract claim seeks to enforce a right
equivalent to a right specified in § 106. Meijer argues that the
breach of contract claim is preempted because the alleged breach
of the 2007 Settlement Agreement is the copyright infringement of
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the SPARROW CLIPS design and, therefore, the breach of contract
claim is equivalent to a right within the scope of copyright.
Plaintiff argues that the alleged breach is based on conduct
not within the exclusive rights enumerated in the Copyright Act
and is not preempted. Plaintiff argues that it seeks to enforce the
terms of the parties’ settlement, which involves “rights not
equivalent to the right violated by defendant’s willful knock-off of
[Plaintiff’s] Sparrow Clips and contains the essential ‘additional
element’ of consideration.” Pl. Opp. at 16.
In the Settlement Agreement, Meijer agreed that:
it will not purchase, order, create, manufacture, sell or
distribute any other goods identical or substantially the
same as Design Ideas’ (i) Mesh Products, (ii) DOODLES
magnets, or (iii) containing any Design Ideas intellectual
property, or (iv) use any Design Ideas intellectual
property, the MESH TRADE DRESS or the
STEPSORTER mark, except as provided herein.
Id. ¶ 2(b). Meijer also made other promises pertaining to
purchasing Design Ideas merchandise. Id. ¶ 2(c)-(e).
Construing the First Amended Complaint in the light most
favorable to Plaintiff, the Court finds that Plaintiff could have a
breach of contract claim against Meijer that is not equivalent to a
right within the general scope of copyright. See, e.g., ProCD, Inc.
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v. Zeidenberg, 86 F. 3d 1447, 1454-55 (7th Cir. 1996) (enforcement
of a shrinkwrap license was not equivalent to an exclusive right
within the general scope of copyright and noting that “courts
usually read preemption clauses to leave private contracts
unaffected”); Rand McNally & Co. v. Fleet Mgmt. Sys., Inc., 591 F.
Supp. 726, 739 (N.D. Ill. 1983) (noting that use of factual data
“may be clearly outside the subject matter of copyright”). The
Settlement Agreement contains promises by Meijer separate and
apart from the promise not to infringe Plaintiff’s intellectual
property. Therefore, Meijer’s motion to dismiss Count X is denied
without prejudice.
VI. CONCLUSION
For the reasons stated, Defendant Meijer, Inc.’s Partial
Motion to Dismiss First Amended Complaint (d/e 46) is GRANTED
IN PART and DENIED IN PART. Counts II and VI are dismissed as
barred by the statute of limitations. Meijer shall file an Amended
Answer that includes an answer to Count X (paragraphs 90-93 of
the First Amended Complaint) on or before May 23, 2016.
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ENTER: May 9, 2016
FOR THE COURT:
s/Sue E. Myerscough
SUE E. MYERSCOUGH
UNITED STATES DISTRICT JUDGE
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