National Football League Properties, Inc. v. Dallas Cap & Emblem Mfg., Inc.
| Decision Date | 25 February 1975 |
| Docket Number | No. 59917,59917 |
| Citation | 327 N.E.2d 247,26 Ill.App.3d 820 |
| Parties | , 185 U.S.P.Q. 554 NATIONAL FOOTBALL LEAGUE PROPERTIES, INC., Plaintiff-Appellant, v. DALLAS CAP & EMBLEM MFG., INC., et al., Defendants-Appellees. |
| Court | United States Appellate Court of Illinois |
Kirkland & Ellis, Chicago, for plaintiff-appellant.
Hoppenstein & Prager, Dallas, Tex., Alter, Weiss, Whitesel & Laff, Chicago, for defendants-appellees; Chas. A. Laff, Howard B. Rockman, Richard Eugene Dick, Chicago, of counsel.
This appeal arises from the issuance of a preliminary injunction restraining defendants from manufacturing and selling emblems bearing the identifying marks of the member clubs of the National Football League without appropriate disclaimer on the face of each emblem indicating that the emblem is not sponsored by or originating from plaintiff or a member club of the National Football League. Plaintiff, National Football League Properties, Inc., appeals from the issuance of this order, arguing that it is erroneous and contrary to law to the extent that it did not provide Complete and Total temporary injunctive relief Pendente lite. Plaintiff requests this court to so modify the order as to completely enjoin defendants from manufacturing and selling their emblems Pendente lite. Defendants have not filed a cross-appeal; however, in their briefs they contend that no injunctive relief was warranted in this case. On the failure of appellee to take or prosecute a cross-appeal, we are confined to issues raised by appellant and will not consider errors urged by appellee where they are not related to the issues raised by appellant. Clodfelter v. Van Fossan, 394 Ill. 29, 67 N.E.2d 182.
This suit brought by plaintiff against defendants is almost identical to a prior suit brought by plaintiff against Consumer Enterprises, Inc., National Football League Properties, Inc. v. Consumer Enterprises, Inc., Ill.App., 327 N.E.2d 242 which we have also decided this day. Our opinion in Consumer is dispositive of the issues in this case. In its complaint seeking permanent injunctive relief, plaintiff, here as in Consumer, alleged six causes of action: 1) trademark infringement 1 and unfair competition; 2) deceptive trade practices; 2 3) injury to business reputation and dilution of trademark; 3 4) misappropriation of a property righ; 5) misappropriation of the right to publicity; and 6) injury to business relationships. In their answer defendants denied the material allegations and raised, by way of affirmative defense, seven defenses.
Plaintiff is a California corporation owned in equal part by all 26 teams of the National Football League. Its main business is licensing the trademarks of the teams. Each member club of the National Football League has a symbol or logo which consists of a name, design and color. Plaintiff has been authorized by each member club to act as its exclusive licensing agent for its logo. Plaintiff in turn licenses various manufacturers to affix the team marks on merchandise to be sold to the public. Lion Brothers, Inc. has been granted the exclusive license to manufacture embroidered emblems depicting the teams' logos. These emblems are affixed to merchandise of other licensees to indicate sponsorship and authorization by the respective National Football member teams.
Defendant Dallas Cap and Emblem Manufacturing, Inc. (hereinafter Dallas) is a Texas corporation which, just as Consumer Enterprises, Inc., manufactures and sells embroidered cloth emblems which are duplications of the marks of the National Football League teams. Defendant Rainbow Emblem Co., a subsidiary of Dallas, is engaged in the business of selling to retailers emblems manufactured by Dallas. Defendant Vim Sports, Inc. is a retail store in Chicago, Illinois which purchased emblems from Dallas. Each of Dallas' emblems is packaged separately in a blister package, the upper portion of which is red, white and blue and displays the words 'Sport Patches.' The upper portion of the Rainbow blister package consists of a rainbow effect and the only words appearing on this package are 'Iron On' and 'Ironing Instructions on Reverse.'
Plaintiff's complaint alleged, Inter alia, that in addition to selling to the public at retail level, Dallas also sells its patches to manufacturers of other articles with the intention or knowledge that its patches will be affixed to these articles prior to sale to the public; that on June 7, 1971 plaintiff made demand on Dallas to cease and desist the manufacture and sale of its emblems; that on June 16, 1971 Dallas denied that it was manufacturing or selling patches; that in July and August, 1972 Dallas represented that it would not manufacture or sell National Football League emblems; and that in 1972 Dallas sought and was refused a license from plaintiff to use the National Football League teams' marks on embroidered emblems.
At the hearing on plaintiff's motion for a preliminary injunction, the president of National Football League Properties, Inc., J. Robert Carey, testified that the 26 teams of the National Football League have assigned to plaintiff the responsibility of licensing, controlling and protecting the commercial use of the teams' marks. Merchandise licensees are not required to purchase emblems which they affix to their articles from Lion Brothers, but emblems manufactured by other companies must first be submitted to plaintiff and quality-approved prior to use by the licensee. Plaintiff is engaged in a constant quality-control program whereby the quality of the merchandise, as well as the emblem to be affixed, is inspected. After observing samples of emblems manufactured by Dallas, Carey stated that Dallas' emblems do not meet the qualifications required by plaintiff. Carey testified that plaintiff does not grant any emblem manufacturer a license for retail sale of the team emblems because these emblems could be affixed to shoddy merchandise which would tarnish the image of the National...
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