Chicago Case Brief: Plum Markets, LLC v. Compass Group USA Inc., 2021 WL 323791 (ND IL), by James Michael Faier, M.P.P., M.B.A., J.D. (U.S. Reg’d Patent Atty #56,731)

Judge Guzman did a great job with this Motion to Dismiss in a trade dress matter at the Northern District. Plum Markets (I know them from my annual trip in February to buy my wife Godiva Chocolates in the middle of this month) sued Compass for (1) Breach of Contract, (2) Infringement of trade dress, (3) Unjust enrichment.

Shortly stated, Compass made deal back in 2018 with Plum that in return for 5 percent of gross sales that Plum would provide a variety of materials on how to do one of its markets at a location at Northwestern University. The contract provided for termination (1) if the underlying agreement between Northwestern and Compass expired or was cancelled or (2) if requested by Northwestern. On May 15, 2020, Compass allegedly breached the Agreement by terminating it without cause.

Defendant asks for dismissal of the complaint citing to Federal Rules of Civil Procedure Rule 12(b)(6) which challenges the sufficiency of the complaint. In analyzing the issue, factual allegations are entitled to an assumption of truth while legal conclusions are not. (Citing to the Supreme Court)

On the trade dress prong of the complaint, the court granted the motion. Plum was required to recite the elements of its dress that Compass infringed in its complaint. Guzman quotes from those elements and then wrote that those elements are in most restaurants these days. He notes that trade dress needs to be either inherently distinctive or it must have acquired distinctiveness through long use and the trade dress must be non-functional.

As for the Breach of Contract, Guzman denied the motion. He noted that to prevail on the cause Plum would need to show (1) the existence of a valid and enforceable contract, (2) substantial performance by plaintiff, (3) breach by defendant and (4) resulting damages. Guzman held the complaint set out the required elements. As a part of the analysis, he addressed Compass’ allegation that without the trade dress complaint that the court lacks subject matter jurisdiction as the claim is less than $75,000. Judge Guzman held that he granted Plum the opportunity to re-plead the trade dress complaint so that might be the basis of the jurisdiction. Stay tuned. ###