Southern Illinois Storm Shelters, Inc. v. 4semo.com, Inc.

Filing 231

ORDER granting 195 Motion in Limine to Preclude Use of Evidence or Argument Relating to Color of Logo Mark. Signed by Judge David R. Herndon on 3/7/17. (klh)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF ILLINOIS

4SEMO.COM, INC.,
Plaintiff,
v.

No. 13-0297-DRH

SOUTHERN ILLINOIS
STORM SHELTERS, INC.,
INGOLDSBY EXCAVATING, INC.,
and BOB INGOLDSBY,
d/b/a BOB INGOLDSBY EXCAVATING,
Defendants.

ORDER
HERNDON, District Judge:
Now before the Court is plaintiff’s motion in limine to preclude the use of
evidence or argument relating to the color of logo mark (Docs. 195 & 196).
Defendants oppose the motion (Doc. 229).

Based on the following, the Court

grants the motion. 1
The district court has the inherent authority to manage the course of a
trial. Luce v. United States, 469 U.S. 38, 41 n. 4, 105 S.Ct. 460, 83 L.Ed.2d 443
(1984). The court may exercise this power by issuing an evidentiary ruling in
advance

of

trial.

Id.

A

party

may

seek

such

a

ruling

by

filing

a motion in limine, which requests the court's guidance on what evidence will (or
will not) be admitted at trial. Perry v. City of Chicago, 733 F.3d 248, 252 (7th Cir.
1

The Court notes that neither party supplied a picture or pictures of the subject logo.

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2013). Prudent motions in limine serve a gatekeeping function by allowing the
judge “to eliminate from further consideration evidentiary submissions that
clearly ought not be presented to the jury.” Jonasson v. Lutheran Child & Family

Servs., 115 F.3d 436, 440 (7th Cir. 1997). By defining the evidentiary
boundaries, motions in limine both permit “the parties to focus their preparation
on those matters that will be considered by the jury,” id. and help ensure “that
trials are not interrupted mid-course for the consideration of lengthy and complex
evidentiary issues,” United States v. Tokash, 282 F.3d 962, 968 (7th Cir . 2002).
As with all evidentiary matters, the court has broad discretion when ruling
on motions in limine. United States v. Ajayi, 808 F.3d 1113, 1121 (7th Cir.
2015); Jenkins v. Chrysler Motors Corp., 316 F.3d 663, 664 (7th Cir. 2002).
Moreover, the Court can change its ruling at trial, “even if nothing unexpected
happens[.]” Luce, 469 U.S. at 41, 105 S.Ct. 460. Ruling in limine are speculative
in effect; essentially, they are advisory opinions. Wilson v. Williams, 182 F.3d 562,
570 (7th Cir. 1999) (Coffey, J., concurring in part and dissenting in part).
Specifically, 4SEMO.com moves the Court to preclude defendants from
arguing that any use of the Logo Mark at issue in this case, which consists of a
Greek cross with the words Life Saver Storm Shelters embedded in the horizontal
arm, was somehow improper or did not constitute a trademark use or a use in
commerce, or was not legally protectable, if such logo used the color red as the
background color within the Greek cross. 4SEMO.com contends that it has used
the Logo with various colors, including a yellow cross with red lettering, and a red

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cross with yellow lettering. 4SEMO.com asserts that to imply that its use was
somehow improper or insufficient or that the mark is for any reason not
enforceable or protectable against defendants would confuse the jury and
significantly prejudice 4SEMO.com.

In response, defendants state that the

evidence shows that SISS and 4SEMO.com only used the logo with the red Greek
cross until it was refused by the United States Patent and Trademark Office as not
being a lawful use in commerce. Thus, defendants contend that the evidence is
relevant and admissible as they cannot have infringed on an unprotectable mark.
The Court rejects defendants’ argument.
Here, defendants rest their argument on the ruling of the patent and
trademark office which is not the last word on this issue; particularly since they
seem to misread the statute. 18 U.S.C. § 706 provides:
Whoever wears or displays the sign of the Red Cross or any insignia
colored in imitation thereof for the fraudulent purpose of inducing
the belief that he is a member of or an agent for the American
National Red Cross; or
Whoever, whether a corporation, association or person, other than
the American National Red Cross and its duly authorized employees
and agents and the sanitary and hospital authorities of the armed
forces of the United States, uses the emblem of the Greek red cross
on a white ground, or any sign or insignia made or colored in
imitation thereof or the words “Red Cross” or “Geneva Cross” or any
combination of these words-Shall be fined under this title or imprisoned not more than six
months, or both.
This section shall not make unlawful the use of any such emblem,
sign, insignia or words which was lawful on the date of enactment of
this title.

Page 3 of 4

Clearly, the statute prohibits someone from fraudulently trying to hold
themselves out as an agent or a member of the American National Red Cross
through the use of the Greek red cross on a white background or through the use
of the words or the words Geneva Cross. Defendants are not suggesting that type
of activity took place in this case. Nevertheless, the Court finds that the motion
should be granted as the evidence would be irrelevant and prejudicial to the
plaintiff.
Accordingly, the Court GRANTS the motion to preclude the use of evidence
or argument relating to the color of logo mark (Doc. 195).

The Court BARS

defendants from introducing any evidence of belief, statement or position, or from
in any manner stating, claiming, arguing, or inferring that any use of the logo
mark was somehow improper or did not constitute a trademark use or a use in
commerce, or that such mark was not legally protectable, if such logo used the
color red as the background color within the Greek cross behind the imbedded
words Life Saver Storm Shelters.

Digitally signed
by Judge David
R. Herndon
Date: 2017.03.07
13:32:17 -06'00'

IT IS SO ORDERED.
Signed this 7th day of March, 2017.

United States District Court

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