Jim Mullen Charitable Foundation v. World Ability Federation, NFP

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State: Illinois

Court: 1st District Appellate

Docket No: 1-07-2505 Rel

Case Date: 10/23/2009

Preview:FIFTH DIVISION October 23, 2009

No. 1-07-2505 THE JIM MULLEN CHARITABLE FOUNDATION, a Not-for-Profit Illinois Corporation, Plaintiff-Appellant, v. WORLD ABILITY FEDERATION, NFP, a Not-for-Profit Illinois Corporation, Defendant-Appellee. ) ) ) ) ) ) ) ) ) ) ) ) ) Appeal from the Circuit Court of Cook County.

Honorable Mary Anne Mason, Judge Presiding.

JUSTICE HOWSE delivered the opinion of the court: On June 21, 2004, plaintiff Jim Mullen Foundation (JMF) filed a lawsuit against defendant World Ability Federation (WAF), alleging trademark mark infringement, trademark dilution, false designation of origin, unfair competition, interference with prospective economic advantage, trespass, and conversion. The

circuit court granted summary judgment in defendant's favor on all but one of JMF's counts. JMF appeals, contending: (1) the circuit court erred in considering defendant's jus tertii defense, contending defendant improperly argued the Department of Labor's alleged rights in the trademark precluded JMF from having any enforceable rights in the mark; (2) a genuine issue of material fact existed as to whether

1-07-2505 the Department of Labor had an interest in the mark; (3) a genuine issue of material fact existed as to whether JMF acquiesced to defendant's use of the mark; and (4) summary judgment was improper on counts III through V the complaint because the claims did not rely on JMF's alleged trademark rights to establish liability. We reverse the circuit court's order and

remand the cause for further proceedings.1 BACKGROUND JMF is a nonprofit organization formed for the purpose of acquiring and delivering computers to applicants with disabilities. In February 2001, Jim Mullen, a member of JMF's

board of directors, attended the announcement of President George W. Bush's "New Freedom Initiative" to help the disabled. In

2002, the JMF board decided to present a "New Freedom Awards" ceremony in Chicago to recognize people and companies that develop products for people with disabilities. In June 2002, the United States Department of Labor (the Department) announced its solicitation of nominations in the Federal Register-a nationally distributed publication-for an

Justice Nathaniel Howse, Jr., was appointed to the Illinois Appellate Court by the Illinois Supreme Court on August 10, 2009, replacing Justice Denise O'Malley as a member of the panel assigned to hear this case. Justice Howse is familiar with the record and briefs filed by the parties and has listened to the recording of the oral arguments held in this case on March 12, 2009. -2-

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1-07-2505 awards program called the "Inaugural New Freedom Awards" (sometimes referred to as the Inaugural New Freedom Initiative Awards) to be held in Washington, D.C. The Department has

presented the awards program each year in Washington, D.C., since 2002 to the time of this appeal. In October 2002, JMF launched the "New Freedom Awards" project in Chicago with a public event that received local television and press coverage. Over the following nine months,

John Chmela, JMF's director of operations, and William Smith, JMF's executive dircetor, led the planning for the New Freedom Awards. Chmela and Smith solicited nominees, planned the

ceremony, and conducted extensive fundraising

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