Opinion
No. 98 C 8026.
November 7, 2000.
MEMORANDUM OPINION AND ORDER
Plaintiff Mark A. McMahon has moved for reconsideration of the court's decision of October 13, 2000, granting summary judgment in favor of the defendant, City of Chicago, on plaintiffs claim for violation of section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a). Treating the motion as one to alter or amend the judgment under Rule 59(e), the court is not persuaded that it erred in its original ruling and denies the motion for reconsideration.
Final judgment in the case was entered on October 13, 2000. Therefore, any motion attacking the judgment must be made under Rule 59(e).
The reasons are briefly stated as follows. Contrary to McMahon's assertion on the motion, this court did not "disqualified him from coverage under the Act . . . simply because the business at stake here is not the traditional corporate manufacturers s misrepresented goods, but rather fine art." (McMahon's Mot. at 5.) Instead, this court found that McMahon's allegations stated a non-actionable hybrid Lanham Act claim, one in which a non-competitor is alleged to have disparaged a trade or service mark. McMahon persists in his argument that, despite the language of commercial disparagement in his allegations, his claim is not a hybrid claim but strictly one for false endorsement under section 43(a)(1)(A).
Purporting to read his facts onto the statutory language, phrase by phrase, he identifies the City's "goods or services" as provision of art work for the Riverwalk project. The court cannot agree that the City was providing goods or services. Rather, it was a purchaser of goods or services such as those provided by McMahon and other artists. The facts read on McMahon's interpretation of section (a)(1)(A) as follows:
The City, in connection with goods or services (of the City), in commerce, falsely indicated (lack of) affiliation or connection of the City with McMahon, which likely deceived McMahon's potential customers, or the public, as to (i) the affiliation or connection of the City with McMahon, or (ii) the approval of the City's goods or services by McMahon.
Because the City's conduct was not in connection with any of its own goods or services, however, the claim fails even under McMahon's own interpretation of the statute.
McMahon also asserts, for the first time, that a competitive commercial environment sufficient to sue the City under the Lanham Act existed because the City was allegedly damaging his mark on behalf of another artist and cites Dovenmuehle v. Gilldorn Mortgage Midwest Corp., 871 F.2d 697 (7th Cir. 1989), in support of his motion. In Dovenmuehle, the Seventh Circuit affirmed the district court's holding that members of the Dovenmuehle family lacked standing under the Lanham Act to sue two corporations over the use of the Dovenmuehle, Inc. trade name. First, the Seventh Circuit did not state, as McMahon asserts, that Lanham Act standing was quite broad. Instead, the Seventh Circuit stated that the Lanham Act is typically used by competitors allegedly injured by false advertising and that "[t]he question of how broadly the Lanham Act extends beyond business competitors . . . is somewhat uncertain." 871 F.2d at 699. The portion McMahon quotes is actually the Seventh Circuit's synopsis of the Second Circuit's position. Second, the Seventh Circuit rejected the argument that notwithstanding the fact that the plaintiffs were not and did not intend to be engaged in competition with the defendants, they had an interest protectable by the Lanham Act. The City has not argued here that McMahon lacks standing to sue but rather that the facts do not amount to a violation of the Act. As discussed in the original opinion, the closest fit is under (a)(1)(B) for trade mark disparagement, but because the Seventh Circuit requires commercial competition for trade mark disparagement claims, see L.S. Heath Sons, Inc. v. ATT Info. Sys., Inc., 9 F.3d 561, 575 (7th Cir. 1993), the claim must fail. For the reasons stated previously and the additional reasons stated herein, the claim cannot be characterized as a false endorsement claim under (a)(1)(A). McMahon's new argument is really a weak attempt to characterize the City as the competing artist's agent. The complaint's allegations simply do not support such characterization.
For these reasons, and the reasons previously stated in this court's October 6, 2000 opinion granting summary judgment on Count I in the City's favor, McMahon's motion is denied.