# Petition for Writ of Certiorari — Hyatt Legal Services v. Hyatt Corp.

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Petition for Writ of Certiorari
- **Published:** January 1, 1984
- **Citation:** 469 U.S. 1019

## Text

8 4 - 4 4 6 | = Court. US.

ED

IN THE

SEP 20 1094

ALEXANDER |. STEVAS.

Supreme Court of the United Staten:

OCTOBER TERM, 1983 __

>

HYATT LEGAL SERVICES and JOEL HYATT,

—_—V.—

HYATY CORPORATION,

Petitioners,

Respondent.

PETITION FOR A WRIT OF CERTIOKARI TO THE
UNITED STATES COURT OF APPEALS FOR THE

SEVENTH CIRCUIT

JAY GREENFIELD
(Counsel of Record)
345 Park Avenue
New York, New York 10154

(212) 644-8124

MAX E. WILDMAN

DAVID L. SCHIAVONE

One IBM Plaza, Suite 3000
Chicago, Illinois 60611

(312) 222-0400

Attorneys for Petitioners

THOMAS J. FLEMING

PAUL, WEISS, RIFKIND, WHARTON & GARRISON

A partnership including professional
corporations

WILDMAN, HARROLD, ALLEN & DIXON

Of Counsel

ee mpcemen

QUESTIONS PRESENTED

Petitioner Hyatt Legal Services has been operating under the
last name of its founding partner, petitioner Joel Hyatt, since
its inception in 1977. Respondent, the operator of Hyatt
Hotels, challenges its right to use that name.

The Seventh Circuit has ruled that under the Illinois Anti-
Dilution Act, Ill. Rev. Stat. ch. 140, § 22 (Supp. 1984), Hyatt
Legal Services should be preliminarily enjoined from operating
under that name. While the Court of Appeals has not identi-
fied the geographic scope of the state-law injunction, respond-
ent has argued that it should apply nationwide.

The Court of Appeals decision raises the following constitu-
tional questions:

1. Does an injunction based solely upon tne Illinois Anti-
Dilution Act and covering Illinois contravene the Commerce
Clause by imposing burdens on Hyatt Legal Services’ interstate
commerce that are excessive in relation to the local interests
that the Illinois statute purportedly serves?*

2. Would such an injunction violate the Due Process and
Commerce Clauses as well as fundamental principles of fed-
eralism if it covered the entire nation?

3. Where the Lanham Act grants a service mark owner the
exclusive right to use a name (HYATT) in limited areas of
commerce, does the Supremacy Clause preempit Illinois from
expanding that right so as to bar another from using a similar
name (Hyatt Legal Services) in other areas of commerce when
there is no confusion and no violation of the federal statute?

PARTIES TO THE PROCEEDING

The caption of the case in this Court contains the names of
all parties.

The Illinois Anti-Dilution Act prohibits “dilution of the distinctive
quality” of a trademark or trade name, even where there is no
confusion between the similarly named products or services.

ill

TABLE OF CONTENTS

PAGE

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eee reer TT ee eee Tee aera i
ee ee hn tk ahh ke bn 64.06 6846 N oR ee l
ee oe a ed wns ab 00.08 604656 l
Statutory and Constitutional Provisions Involved...... 2
ee 3
RS ra 3

The Dispute over Hyatt Legal Services’ Right to Use
ks cd abbas ee ees s keen

4
eee enka ca Aw ae eee es ena 5
ETT TT TET ET TE ETE ETT 5
TM te Oe PROBING on cc cence csccnnces 6
The Anti-Dilution Laws in the United States...... 8

Reasons for Granting the Writ .... 2... 0... ccccccecss 9

I. The injunction ordered by the Court of Appeals
would impermissibly burden interstate commerce 10

Il. Extraterritorial application of the Illinois Anti-Di-
lution Act would violate the Due Process Clause,
the Commerce Clause and fundamental principles
CE eee ee eee ee 13

Ill. The Lanham Act preempts the application of the
Illinois Anti-Dilution Act to Hyatt Legal Services 15

iV

PAGE
ee error rte Tr rere ee 19
Appendices:

A- Opinion of the Seventh Circuit ..........--- la
B- Memorandum and Order of the United States
District Court for the Northern District of
e.g cae eek bohRe Seep beeeUE Eee Shs 12a
C- Judgment of the Seventh Circuit............ 18a
D- Order of the Seventh Circuit Denying Re-
OUTER occ cen cccccsscnnanssnsnssocns 20a

E- Model State Trademark Bill § 12 and Citations
to All Anti-Dilution Statutes in the United
rrr reer ers eS ee 22a

TABLE OF AUTHORITIES
Cases: PAGE

Aetna Life Insurance Co. v. Dunken, 266 U.S. 389
TE eee Cee re rer gr ee ee 14

Allied Maintenance Corp. v. Allied Mechanical Trades,
Inc., 42 N.Y.2d 538, 369 N.E.2d 1162, 399 N.Y.S.2d

8g et er ry ee ee et er oe ree see 8
Baldwin v. G.A.F. Seelig, Inc., 294 U.S. 511 (1935).... 12
Bates v. State Bar of Arizona, 433 U.S. 350 (1977) .... 3

Bibb v. Navajo Freight Lines, Inc., 359 U.S. 520 (1969) 11

Compco Corp. v. Day-Brite Lighting, Inc. , 376 U.S. 234
TUE sav Ka Chanda ceueebercaaancbkabkcek sien 17

Dallas Cowboys Cheerleaders, Inc. v. Pussycat Cinema,
Ltd., 467 F. Supp. 366 (S.D.N.Y.), aff’d, 604 F.2d 200

CRN AE TEGO sek is vavecewsnswaeqenwenecncsacess 18
Edgar v. Mite Corp., 457 U.S. 624 (1982)......... 10, 11, 12
Golden Door, Inc. v. Odisho, 646 F.2d 347 (9th Cir.

PE NV See e saben ccceekn ee aewecsseeashea eee a 18
Instrumentalist Co. v. Marine Corps League, 509 F.

Se, Bee ares Bee Sacks eebeci eka eee 14
Keebler Co. v. Rovira Biscuit Corp., 624 F.2d 366 (lst

Ea ME cases kvuakcavadeusarcsenienaseteroi et 18
Mr. Donut of America, Inc. v. Mr. Donut, Inc., 418 F.2d

Se eS Vk ene ccnds enuucueeesee tence 17
New York Life Insurance Co. v. Head, 234 U.S. 149

Ss cishantnakaekecks al enha nas wie ee eensrin 14
Funmager ¥. Meaty, 55 U.S. TH4 CGT) wos noc cccvcccens 13, 14

Philco Corp. v. Phillips Mfg. Co., 133 F.2d 663 (7th Cir.
NN 6405 cdi ekaeepetendabaues baecedewadeeasan 17

vi

PAGE

Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) ...... 12
Polaroid Corp. v. Polaraid, Inc., 319 F.2d 830 (7th Cir.

Es 6.4.06 64400006 0060 500504505506005 60500600505 iS)
Sargent & Co. v. Welco Feed Mfg. Co., 195 F.2d 929

PN Cr, POGED oc cae ccc ccccncecccscccccseseccscn 17
Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225

SOONER % 65.04% 64.04 0440040606406660000000466646545 16, 17

Southern Pacific Co. v. Arizona, 325 U.S. 761 (1945).. 12
United Mine Workers v. Gibbs, 383 U.S. 715 (1968) ... 2
Wedgwood Homes, Inc. v. Lund, 294 Or. 493, 659 P.2d

TTT CRGBS). wn cecvccnsccvccccccsencnsccnsasecsens 8

Constitutional Provisions and Statutes:

U.S. Const. art. 1, § 8, ch So... ccc c cece cee wesw enens 2
U.S. Const. art. VI, cl 2... cc cece cece ewes wees 3
U.S. Const. amend. XIV, § 1.1... cee eee eee 2
15 U.S.C. §§ 1051-1127 (1982)... 6. cee eee ees 5, 15
15 U.S.C. §§ 1114-1119 (1982)... 6. eee 15
15 U.S.C. & LUDE CIDER). 0. ccc nc esecrcncccnsennnces 2
15 U.S.C. § UNZS (ISSR)... ccc ener ecnccccnsccccees 15
15 U.S.C. & L1Z7 CIDA). 0 ccc nc ecescccnnscnnnens 3, 16
28 U.S.C. § 1254(1) (1982) 2... cc cece reece cece eens 2
28 U.S.C. § 1332 (I9B2). 0... cece cece cece cnccnens 2
28 U.S.C. § 1338(a) (1982)... cree cece ees enenees 2
Trademark Act of Feb. 20, 1905, ch. 592, 33 Stat. 724
CIDER) nc nncescncnenccnsewadasccesccceceecssacnn 17 n.6
Aia. Code § 8-12-17 (Supp. 1983) ............es00005 22a

Ark. Stat. Ann. § 70-550 (1979)... 6... eee eee eens 22a

Vii

PAGE
Cal. Bus. & Prof. Code § 14330 (West Supp. 1984).... 22a
Conn. Gen. Stat. § 35-1 1ifc) (1981)... cc ccc ccc ccs 22a
Del. Code Ann. tit. 6, § 3313 (Supp. 1982) ........... 22a
wom. Stat. Amm. § G0S.181 (CIDTA) ..c ccc cc cc scccnccs 22a
Co, Ge © Bete CUED 6 bb k caceccccceeiscvetiac 22a
a Ee 22a
Ili. Rev. Stat. ch. 140, § 22 (Supp. 1984)............. passim
lowa Code § 548.11(2) (Supp. 1984) .........0000000. 22a
Me. Rev. Stat. Ann. tit. 10, § 1530 (1980)............ 22a
Mass. Gen. Laws Ann. ch. 110B, § 12 (West Supp. 1980) 23a
Mo. Ann. Stat. § 417.061(1) (Vernon 1979) ........... 23a
Mont. Code Ann. § 30-13-334 (1983) ................ 23a
NOD. Rev. Stat. § C7122 (ISTE)... wc nc ccscccccccss 23a
N.H. Rev. Stat. Ann. § 350-A:12 (Supp. 1981)........ 23a
N.M. Stat. Ann. § 47-3-10 (1978) ................25. 23a
N.Y. Gen. Bus. Law § 368-d (McKinney 1984) ........ 23a
Ore. Rev. Stat. § 647.107 (1971) ..... ccc ccc ccc cc cces 23a
54 Pa. Cons. Stat. Ann. § 1124 (Supp. 1984) ......... 23a
R.I. Gen. Laws § 6-2-12 (Supp. 1983). ............... 23a
Tenn. Code Ann. § 47-25-433 (Supp. 1983) ........... 23a
Rules:
Federal Rule of Appellate Procedure 41(b) ........... 2
Miscellaneous:

Griewe, Anti-Dilution Statutes: A New Attack on Com-
parative Advertising, 72 Trademark Rep. 178 (1982) ..8 n.3

Vili
PAGE

Model State Trademark Bill § 12 (U.S. Trademark Ass’n

Pattishall, The Dilution Rationale for Trademark, 71
Nw. U.L. Rev. 618 (1976)... 0. ccc wwe deccceccees 8 n.3

S. Rep. No. 1333, 79 Cong. 2d Sess., reprinted in 1946
U.S. Code Cong. Service 1274 .... 2.6... eee ee eees 16

Winner, Right of Identity: Right of Publicity and Pro-
tection fo a Trademark’s “Persona”, 7) Trademark
Rep. 193 (1981)... 0... cece eee eee eees 8 n.3, 9, 14n.5

IN THE

Supreme Court of the United States
OCTOBER TERM, 1983

——

HYATT LEGAL SERVICES and JOSL HYATT,

Petitioners,

—_Vv—

HYATT CORPORATION,
Respondent.

>

PETITION FOR A WRIT OF CERTIORARI TO THE
UNITED STATES COURT OF APPEALS FOR THE
SEVENTH CIRCUIT

Petitioners Hyatt Legal Services and Joei Hyatt respectfully
petition for a writ of certiorari to review the judgment of the
Court of Appeals for the Seventh Circuit.

OPINIONS BELOW

The opinion of the Court of Appeals, not yet officially
reported, is annexed as Appendix A. The opinion of the United
States District Court for the Northern District of Illinois
(Moran, J.), which has also not been officially reported, is
annexed as Appendix B.

JURISDICTION

The judgment of the Court of Appeals, dated June 11, 1984
and entered on that date, is annexed as Appendix C. Peti-

2

tioners’ application for rehearing with suggestion that re-
hearing be en banc was denied on July 24, 1984. (App. D) The
Court of Appeals stayed its mandate pursuant to Federal Rule
of Appellate Procedure 41(b).

The jurisdiction of this Court is invoked pursuant to 28
U.S.C. § 1254(1). Jurisdiction in the District Court was based
on 15 U.S.C. § 1121 and 28 U.S.C. §§ 1332 & 1338(a) and the
doctrine of pendent jurisdiction, United Mine Workers v.
Gibbs, 383 U.S. 715 (1968).

STATUTORY AND CONSTITUTIONAL
PROVISIONS INVOLVED

The Illinois Anti-Dilution Act, Ill. Rev. Stat. ch. 140, § 22
(Supp. 1984) provides in pertinent part:

Every person . . . adopting and using a mark, trade
name, label or form of advertisement may proceed by
suit, and the circuit court shall grant injunctions, to
enjoin subsequent use by another of the same or any
similar mark, trade name, label or form of advertisement
if there exists a likelihood of injury to business reputation
or of dilution of the distinctive quality of the mark, trade
name, label, or form of advertisement of the prior user,
notwithstanding the absence of competition between the
parties or of confusion as to the source of goods o7
services;....

Article I, section 8, clause 3 of the United States Constitu-
tion, the Commerce Clause, provides in pertinent part:

The Congress shall have Power. . . To regulate Com-
merce. . . among the several States,... .

Section | of the Fourteenth Amendment to the United States
Constitution, the Due Process Clause, provides in pertinent
part:

3

. . . No state shall make or enforce any law which shall
abridge the privileges or immunities of citizens of the
United States; nor shall any State deprive any person of
life, liberty, or property, without due process of law; nor
deny to any person within its jur‘sdiction the equal pro-
tection of the laws.

Article VI, clause 2 of the United States Constitution, the
Supremacy Clause, provides in pertinent part:

This Constitution, and the Laws of the United States
which shall be made in Pursuance thereof . . . shall be
the supreme Law of the Land; and the Judges in every
State shall be bound thereby, any Thing in the Constitu-
tion or Laws of any State to the Contrary notwithstand-
ing.

Section 45 of the Lanham Act, 15 U.S.C. § 1127 (1982),
provides in pertinent part:

The intent of this chapter is to regulate commerce
within the control of Congress by making actionable the
deceptive and misleading use of marks in such commerce;
to protect registered marks used in such commerce from
interference by State, or territorial legislation; ... .

STATEM™NT OF THE CASE
The Parties

Hyatt Legal Services is a pioneering national law firm
offering innovative low-cost services to the millions of persons
whose legal needs have not been met by traditional law firms.
Because of the demand for, and quality of, its services, the
firm has achieved substantial success. Since its founding in
1977 (shortly after this Court’s landmark decision in Bates v.
State Bar of Arizona, 433 U.S. 350 (1977)), it has grown from
a single office in Cleveland, Ohio to more than 125 offices in
19 jurisdictions. The firm has served more than 360,000 clients
and now employs over 350 attorneys.

4

Advertising has been critical to the firm’s growth. The
primary medium for its advertising is television and, at any
given time, the firm runs identical television advertisements in
several states. All of the ads prominently feature both Joel
Hyatt, as the firm’s spokesperson, and the name “Hyatt Legal
Services.” As a result of substantial advertising expenditures—
more than $3 million in 1983 alone—and seven years of
effective legal representation, the firm’s name has gained
widespread recognition and valuable good will.

Joel Hyatt founded the firm with his partner and Yale Law
School classmate, Wayne Willis. Mr. Hyatt’s name was chosen
as the firm name because, when the firm was formed, Mr.
Willis (unlike Mr. Hyatt) was not admitted to the Ohio Bar, a
fact that then precluded practicing under his name in Ohio.
Under Ohio legal ethics provisions, Hyatt was the only name
available. '

Respondent Hyatt Corporation (“Hyatt Hotels”), a Dela-
ware corporation, operates a chain of 70 hotels in the United
States, including several in Illinois. (App. 13a) In 1971, re-
spondent registered with the United States Patent Office the
service mark HYATT under the classification for “hotel, motel
and reservation services.” (App. 2a)

The Dispute Over Hyatt Legal Services’ Right to Use Its
Founder’s Name

The dispute over the Hyatt name is of recent vintage. When
Hyatt Legal Services started its law practice in Cleveland,
Hyatt Corporation did not have any hotels in Ohio. And
during the first four years of the law firm’s growth, it heard

I Mr. Hyatt’s name at birth was Joel Hyatt Zylberberg. Shortly after
he graduated from law school in 1976 (long before the opinion in Bates
and long before he opened a law office), he dropped “Zylberberg”
because it was unpronounceable. The District Court found that this
change was “unrelated” to the conception of Hyatt Legal Services.
(App. 13a) In its brief to the Court of Appeals, respondent acknowl-
edged that Mr. Hyatt’s “changing his name. . . is not an issue.”

5

nothing from the hotel chain. In August, 1981, Hyatt Hotels
first voiced an objection to Hyatt Legal Services’ operation
under Mr. Hyatt’s name. (App. 14a) Respondent demanded
that the name be changed, and its demand was rejected.

On October 8, 1982—more than five years after Hyatt Legal
Services commenced its practice and more than a year after
Hyatt Hotels’ initial objection—Hyatt Hotels filed a complaint
in the United States District Court for the Northern District of
Illinois. It claimed that petitioners’ use of the Hyatt name
violated the Lanham Act, 15 U.S.C. §§ 1051-1127 (1982) and
the Illinois Anti-Dilution Act, Ill. Rev. Stat. ch. 140, § 22
(Supp. 1984). (Various other claims were made but have not
been pressed.)

Respondent based its Lanham Act claim on the charge that
petitioners’ use of Mr. Hyatt’s name created confusion over the
law firm’s relationship to Hyatt Corporation, causing the
public to believe that the law firm was affiliated with Hyatt
Hotels. Respondent’s claim under the Illinois Anti-Dilution
Act was based upon petitioners’ alleged dilution of the “dis-
tinctive quality” of the HYATT mark.

PROCEEDINGS BELOW
The District Court

Two weeks after filing its complaint, Hyatt Hotels moved
for a preliminary injunction barring Hyatt Legal Services from
operating under the Hyatt name. The District Court (Moran,
J.) conducted an evidentiary hearing and on April 5, 1983, it
issued a memorandum opinion and order denying the motion.
(App. B)

The District Court found, first, that Hyatt Hotels failed to
demonstrate a “likelihood of confusion” amongst consumers
over the origin of petitioners’ law firm and its relationship to
Hyatt Hotels. (App. 16a) Observing that “the services provided
[by the parties] are distinctly different,” the District Court
concluded: “It is difficult . . . to believe that . . . a [Hyatt

6

Legal Services] sign at a shopping center legal clinic could lead
any person giving any real thought to the matter to the
conclusion that that clinic was somehow related to Hyatt
Corporation.” (App. 15a-16a) Accordingly, the District Court
rejected respondent’s Lanham Act claim.

In denying injunctive relief, the District Court did not
separately detail the inadequacies of respondent’s claim under
the Illinois Anti-Dilution Act. The court’s discussion of the
Lanham Act issues, however, included two key findings that
bear on the state law claim. After a careful review of business
directories and phone books, the trial court found that “[t}he
name ‘Hyatt’ is reasonably common.” (App. 14a) It ruled
further that Hyatt Hotels’ “HYATT service mark is not arbi-
trary or fanciful.” (App.15a) These findings establish that the
HYATT mark lacks the “distinctive quality” required for relief
under the Illinois Anti-Dilution Act.

Finally, the District Court held that “the balance of hard-
ships favors” Hyatt Legal Services. (App. 17a) Under the
injunction sought by Hyatt Hotels, the law firm would bear
not merely “the cost of changing signs and television commer-
cials,” but also “the less measurable cost of re-educating the
public to a different name or of accepting disclaimers.” (App.
17a) The proposed injunction would, however, entail far more.
The good will lost in the wake of a name change could never be
fully recaptured. And, since the name change would be court
ordered, the public would perceive that petitioners had violated
an Illinois statute—a very serious charge which would ag-
gravate Hyatt Legal Services’ loss of good will.

The Court of Appeals

A panel of the United States Court of Appeals for the
Seventh Circuit unanimously affirmed the District Court’s
finding that Hyatt Hotels had failed to demonstrate a likeli-
hood of success on its Lanham Act claim. By a vote of two to
one. however, the panel reversed the judgment of the District
Court, finding that respondent was likely to prevail on its
claim that Hyatt Legal Services had violated the Illinois Anti-

7

Dilution Act. (Apps. A & C) The majority remanded for entry
of a preliminary injunction “prohibiting ‘petitioners] from
using the name Hyatt Legal Services.” (App. 10a)

Notwithstanding the District Court’s finding that the Hyatt
name is “reasonably common” and “not . . . fanciful,” the
majority concluded that respondent was likely to succeed in
proving that the HYATT mark used in the hotel business
possessed a “distinctive quality” which was being diluted in
violation of the Illinois statute. (App. 5a-7a) The majority
opinion did not address Hyatt Legal Services’ showing that at
least 180 businesses in the United States use the Hyatt name,
including several owned by Hyatt Corporation that are unre-
lated to its hotel operations. Nor did the majority address the
fact that the Hyatt \name had been registered as a trademark by
others on three separate occasions: for billiard balls (Reg. No.
509,016), for bearings (Reg. No. 322,420), and for roller
bearings (Reg. No. 128,981). The majority apparently con-
cluded that distinctiveness and dilution were established by the
mere fact that respondent had used the Hyatt name first and
had advertised it extensively.

Circuit Judge Wood dissented from the court’s “original
analysis and disposition” of the Illinois Anti-Dilution Act
claim. Judge Wood took the position that this claim should be
remanded to the District Court “for its further consideration.”

(App. Ila)

In finding for Hyatt Hotels, the Court of Appeals said
nothing about the geographic scope of the injunction. Hyatt
Hotels, however, has taken the position that the Court of
Appeals has directed a nationwide injunction, even though an
alleged violation of state law is the sole wrong to be redressed.
Petitioners contend that any injunction is to be limited to
Illinois. (As noted below, significant constitutional questions
are raised in either event.)

Hyatt Legal Services filed a petition for rehearing with the
suggestion that rehearing be en banc. After directing Hyatt
Hotels to file an answering brief, the Court of Appeals denied
the rehearing petition. It later granted Hyatt Legal Services’

8

motion for a stay of the mandate pending the filing of this
Petition.

The Anti-Dilution Laws in the United States

Under the Court of Appeals decision, the Illinois Anti-Dilu-
tion Act has become the focal point of this litigation. Since this
Court has never adjudicated a case involving an anti-dilution
law, a brief review of the Illinois statute and the anti-dilution
laws of other states is appropriate.

Twenty-two states have enacted anti-dilution statutes similar
in wording to the Illinois law.” By their express terms, these
laws prohibit business practices that may cause the “dilution”
of the “distinctive quality” of a trademark or trade name. See
Model State Trademark Bill § 12 (U.S. Trademark Ass’n
1964). (App. E) They are “designed to prevent ... the
gradual whittling away of a firm’s distinctive trade-mark or
name.” Allied Maintenance Corp. v. Allied Mechanical Trades,
Inc., 42 N.Y.2d 538, 544, 369 N.E.2d 1162, 1166, 399 N.Y.S.2d
628, 632 (1977).

Although similar in language, the anti-dilution laws have
been subject to a wide variety of interpretations. Courts have
developed different definitions of the key statutory terms,
“distinctive” and “dilution.” Most jurisdictions have also re-
quired a showing of competition or confusion, even though the
language of the statute may appear to have done away with
this requirement. See Allied Maintenance Corp. v. Allied
Mechanical Trades, Inc., supra, 42 N.Y.2d at 543-544, 369
N.E.2d at 1165-1166, 399 N.Y.S.2d 631-632; Wedgwood
Homes, Inc. v. Lund, 294 Or. 493, 499, 659 P.2d 377, 382
(1983).

2 A complete list of these statutes as well as the text of the model
statute on which they are based appears as Appendix E.

3 See also Griewe, Anti-Dilution Statutes: A New Attack on Com-
parative Advertising, 72 Trademark Rep. 178, 182-183 (1982); Pat-
tishall, The Dilution Rationale for Trademark, 71 Nw. U.L. Rev. 618,
621-623 (1976); Winner, Right of Identity: Right of Publicity and
Protection for a Trademark’s “Persona”, 71 Trademark Rep. 193,
204-207 (1981).

9

The Illinois Anti-Dilution Act stands as “the exception
rather than the rule” among the minority of jurisdictions with
anti-dilution statutes. Winner, Right of Identity: Right of
Publicity and Protection for a Trademark’s “Persona”, 7}
Trademark Rep. 193, 205 (1981). Of all the anti-dilution laws,
the Illinois act, as interpreted by the Seventh Circuit in Pola-
roid Corp. v. Polaraid, Inc., 319 F.2d 830 (7th Cir. 1963), has
been the most broadly construed.‘ Based on the Polaroid
precedent, Illinois law now affords perhaps the greatest protec-
tion of any state for trademarks and trade names used within
its borders. The converse is equally true: Illinois stands as
perhaps the greatest trademark roadblock for businesses that
are expanding their markets.

What is prohibited by the Illinois Anti-Dilution Act is
permitted by the laws of the 28 states which have no anti-dilu-
tion statute—and by the laws of most or all of the remaining
21 states. This absence of consistency among the fifty states
has the potential for imposing substantial restrictions on enti-
ties which operate under the same name in more than one
state. Under the decision below, that potential will become a
reality for petitioners.

REASONS FOR GRANTING THE WRIT

While only a minority of states have anti-dilution statutes,
that minority is significant. The decision below raises the
questions of the extent to which such statutes may be applied
to impede interstate commerce and prohibit conduct lawful
under the Lanham Act—questions never addressed by this
Court. The panel majority would apply an anti-dilution statute
in a manner which would contravene constitutional restrictions
on state power. In so doing, it would seriously impede the
operations of a unique legal services organization which is
satisfying an important public need that previously has been
unmet.

4 The Illinois Anti-Dilution Act has never been considered by the
Illinois Supreme Court. [t was not construed by any state appellate
court prior to the Seventh Circuit Polaroid decision.

10

The injunction ordered by the Court of Appeals would
impermissibly burden interstate commerce.

An injunction prohibiting Hyatt Legal Services from using
its name in Illinois, based on a distinctive rule of that state,
cannot be reconciled with the Commerce Clause. Edgar v. Mite
Corp., 457 U.S. 624, 643-646 (1982). Such an injunction would
sharply disrupt Hyatt Legal Services’ interstate trade and its
operations outside Illinois without meaningfully advancing any
interest of the State of Illinois.

The record establishes that an injunction would have an
immediate and substantial detrimental effect on Hyatt Legal
Services’ operations. Hyatt Legal Services functions as a na-
tional law firm. It uses uniform television advertising through-
out the country, featuring Mr. Hyatt and the name Hyatt Legal
Services. Its signs and letterhead are similar in all states in
which it operates. Its law practice concentrates on frequently
needed legal matters, and its efforts and advertising are
directed to the 70% of the population that has never consulted
a lawyer. (App. 2a; Trial Tr. at 47-48) Because of its large
volume of similar casetypes, the firm is able to make, and does
make, maximum use of computerized equipment; this achieves
substantial cost savings, which are passed on to the firm’s
clients. (Trial Tr. at 64)

Thus, in addition to causing substantial direct expense, an
injunction requiring Hyatt Legal Services to change its name in
Illinois would seriously disrupt the firm’s nationwide interstate
operations. The firm could not use a single television advertise-
ment throughout the entire country. The advertisements which
it runs in Illinois would be confusing to persons in other states
(e.g., Indiana) who view both Illinois and non-lIllinois televi-
sion stations. Clients and potential clients would be in doubt as
to the relationship between a non-lIllinois office utilizing the
name Hyatt Legal Services and an Illinois office utilizing a

1]

different name. The firm’s image as a nationwide operation
would be severely damaged.

These burdens serve no meaningful state interest. Illinois
consumers are not threatened with confusion over the relation-
ship between the law firm and the hotel chain. (App. 3a, 4a &
16a) Hyatt Hotels has not shown any injury arising out of any
alleged dilution in Illinois. In addition, any “protection” which
it receives in Illinois would not protect it in the other states
where Hyatt Legal Services may lawfully use the Hyatt name
and where Hyatt Hotels conducts most of its business.

Here, as in any Commerce Clause case involving state
regulation of an interstate enterprise, the courts must consider
the balance between the burden which the state law imposes
upon interstate commerce and the legitimate interests served by
the state regulation. See Bibb v. Navajo Freight Lines, Inc.,
359 U.S. 520 (1959). Edgar v. Mite Corp., 457 U.S. 624 (1982),
considers this balance in the context of another Illinois statute,
and its holding and rationale are fully applicable here.

In Edgar, this Court held that, under the Commerce Clause,
“when a state statute regulates interstate commerce indirectly,
the burden imposed on that commerce must not be excessive in
relation to the local interests served by the statute.” 457 U.S. at
643. The Illinois Business Take-Over Act reviewed there had
the effect of regulating a nationwide tender offer whenever the
offer had certain contacts with Illinois. The Court found that
the state law’s indirect, nationwide regulation had “substan-
tial” effects on interstate trade, including the hindrance of the
allocation of economic resources. Jd. Moreover, despite bur-
dening trade outside Illinois, the state take-over statute did not
afford any real, additional safeguards to Illinois residents. Jd.
at 645. The Court concluded therefore that the Illinois law
imposed burdens on interstate commerce that were “excessive
in relation to the local interests served by the statute.” Jd. at
643. Under the Commerce Clause, the Court held, the Illinois
law was illegal.

12

The decision in Edgar amplified the holding of Pike v. Bruce
Church, Inc., 397 U.S. 137 (1970), a case which is equally
instructive. In Pike, the Court struck down an Arizona statute
that required Arizona-grown produce to be packed within that
state. Arizona justified the law as a means of enhancing the
reputation of Arizona’s fruit growers. In effect, the law com-
pelled Bruce Church, which packed Arizona cantaloupes in its
California plant, to construct a new packing facility in Arizona
at a cost of $200,000. Jd. at 144. The Court weighed the state’s
interest, which it termed “minimal at best,” against the
“straight jacket” Arizona imposed “with respect to the alloca-
tion of [the California packer’s] imerstate resources.” Jd. at
146. Because Arizona’s interest could not justify the substan-
tial additional expense to be borne by the packer, the law was
held to violate the Commerce Clause.

The injunction ordered by the Court of Appeals in our case
suffers from the same constitutional infirmities as the state
laws reviewed in Edgar and Pike. Here, as in those cases, the
application of the Illinois Act would have the practical effect
of impeding an interstate firm’s activities outside the state and
imposing upon the firm (and ultimately, its clients) substantial
additional operating expense. Yet, no meaningful local interest
is served by this costly and burdensome regulation. In fact, the
“minimal” interest underlying the Arizona law in Pike
(enhancing the reputation of local fruit growers) is greater than
the interest served by the Illinois Anti-Dilution Act (supple-
menting the strength of a national trademark that is used
locally).

As the number of states with anti-dilution laws increases and
as rights under those laws are asserted, national and regional
businesses will inevitably find themselves subject to a host of
conflicting state regulations that may sharply restrict an en-
terprise’s ability to expand its trade and promote its name. For
example, under the Court of Appeals decision, a cement maker
in Illinois named “Calvin Klein” might halt sales in that state
by the world famous fashion designer with the same name; if
the decision below stands, the cement maker would only have

13

to show a prior use of his trade name and advertising of that
name.

The case of Hyatt Legal Services is no different. Before
entering Illinois, the law firm had practiced for five years and
had grown to include more than 100 offices throughout the
country—all without any charge by Hyatt Hotels of unlawful
“dilution”. But, according to the Court of Appeals, it could
not expand into Illinois without modifying its nationwide
operations or abandoning its valuable name. This is precisely
the type of impediment which the Commerce Clause protects
against.

Extraterritorial application of the Illinois Anti-Dilution Act
would violate the Due Process Clause, the Commerce
Clause and fundamental principles of federalism.

In their petition for rehearing below, petitioners maintained
that the Court of Appeals decision did not, and could not,
require an injunction outside the State of Illinois. Petitioners
requested that the majority opinion be clarified to expressly
limit any injunction to Illinois. In opposition, respondent
maintained that the Court of Appeals decision mandated entry
of a nationwide injunction. In denying a rehearing, the Circuit
Court did not address this issue.

If, as respondent contends, the District Court is required to
enter a nationwide injunction, there is a violation not only of
the Commerce Clause, but also of the Due Process Clause and
fundamental principles of federalism. As far back as Pennoyer
v. Neff, 95 U.S. 714, 722 (1877), this Court acknowledged the
“elementary principle” that under the Due Process Clause “the
laws of one State have no operation outside of its territory.
. . .” Since Pennoyer, the Court has adhered to this principle
without exception. E.g., Southern Pacific Co. v. Arizona, 325
U.S. 761, 775 (1945) (striking down state law where the
“practical effect” of the law “is to control [conduct] beyond
the boundaries of the state. . . .”); Baldwin v. G.A.F. Seelig,

14

Inc., 294 U.S. 511, 521 (1935) (“New York has no power to
project its legislation into Vermont. . . .”); Aetna Life Insur-
ance Co. v. Dunken, 266 U.S. 389 (1924); New York Life
Insurance Co. v. Head, 234 U.S. 149, 161 (1914) (“it would be
impossible to permit the statutes of Missouri to operate beyond
the jurisdiction of that State . . . without throwing down the
constitutional barriers by which all the States are restricted
within the orbits of their lawful authority. . . .”).

The fact that only a minority of states have enacted trade-
mark anti-dilution laws—and that the Court of Appeals’ broad
interpretation of the Illinois law is the “exception rather than
the rule” within that minority’—underscores the impropriety
of applying the Illinois statute to regulate trade in sister states.

There is no Supreme Court or Circuit Court decision holding
that state anti-dilution laws are entitled to the sweeping extra-
territorial application urged by respondent. The only relevant
citation offered by respondent below, /nstrumentalist Co. v.
Marine Corps League, 509 F. Supp. 323, 340 (N.D. Ill. 1981),
cannot rewrite the constitutional principles established in Pen-
noyer and its progeny. To the extent the district court in
Instrumentalist ignored these principles, its decision is incor-
rect. If anything, the decision in /nstrumentalist is a further
ground for this Court to resolve the questions that arise when a
multi-state enterprise’s name is challenged under an anti-dilu-
tion law.

The majority opinion below, as construed by respondent,
has far-ranging implications for all businesses that promote
their trade in Illinois or in any of the other states with
anti-dilution laws. The case of Hyatt Legal Services demon-
strates the harsh results that would occur: In 1982, Hyatt Legal
Services lawfully operated more than 100 offices throughout
the country, but, according to Hyatt Hotels’ reading of the
majority opinion, upon opening its first Illinois office that
year, the firm immediately forfeited its right to use the Hyatt
name everywhere. Under our federal system, Illinois cannot so
“nationalize” its unique law.

5 Winner, Right of Identity: Right of Publicity and Protection for a
Trademark’s “Persona”, 71 Trademark Rep. 193, 205 (1981).

ee Te

15

The Lanham Act preempts the application of the Illinois
Anti-Dilution Act to Hyatt Legal Services.

The District Court found that respondent had not proven
that the name Hyatt Legal Services caused any confusion with
respondent’s federally registered service mark. Accordingly,
the District Court concluded that respondent was not likely to
prevail on its claim under the Lanham Act, 15 U.S.C. §§ 1051-
1127 (1982). (App. 14a-16a) The Court of Appeals affirmed
this finding, but nevertheless held that, under the Illinois
Anti-Dilution Act, respondent’s mark was entitled to rights
denied by the federal law. In so holding, the Court of Appeals
ordered entry of an injunction which interferes with federal
regulation of marks. The state regulation which the Circuit
Court’s order permits (indeed, requires) is precluded by the
Supremacy Clause.

Under the Lanham Act, the federal government has awarded
Hyatt Hotels the exclusive right to certain uses of the HYATT
mark aiid the right to prevent others from any use of that mark
which causes confusion. 15 U.S.C. §§ 1114-1119 & 1125
(1982). The statute gives Hyatt Hotels a limited and carefully
defined monopoly. In granting Hyatt Hotels this exclusive
right, Congress struck a balance: By delineating the field over
which Hyatt Hotels shall have absolute control and by prohib-
iting confusing uses of its name, Congress left available all
other non-confusing uses of the Hyatt name.

The Illinois Anti-Dilution Act, as construed and applied by
the Court of Appeals, disrupts the balance established by
Congress. Under the Court of Appeals opinion, the Illinois law
becomes a vehicle for significantly expanding the monopoly
rights of Hyatt Hotels—and for narrowing Hyatt Legal Ser-
vices’ rights to engage in activity lawful under the federal
scheme.

16

The Senate Committee Report accompanying the Lanham
Act articulates Congress’ intent to abolish any such state
interference. The Report explains:

The theory once prevailed that protection of trade-
marks was entirely a State matter and that the right to a
mark was a common-law right. This theory was the basis
of previous national trade-mark statutes. Many years ago
the Supreme Court held and has recently repeated that
there is no Federal common law. It is obvious that the
States can change the common law with respect to trade-
marks and many of them have, with the possible result
that there may be as many different varieties of common
law as there are States. A man’s right in his trade-mark in
one State may differ widely from the rights he enjoys in
another.

However, trade is no longer local, but is national.
Marks used in interstate commerce are properly the sub-
ject of Federal regulation. It would seem as if national
legislation along national lines securing to the owners of
trade-marks in interstate commerce definite rights should
be enacted and should be enacted now. S. Rep. No. 1333,
79 Cong. 2d Sess. 2-4, reprinted in 1946 U.S. Code Cong.
Service 1274, 1276-1277 (emphasis added).

Congress’ desire to have “[m]Jarks used in interstate com-
merce . . . [be] the subject of Federal regulation” is ciearly
expressed in the Lanham Act itself. Section 45 of the Act, 15
U.S.C. § 1127 (1982), provides in pertinent part:

The intent of this chapter is to regulate commerce
within the control of Congress by making actionable the
deceptive and misleading use of marks in such commerce;
to protect registered marks used in such commerce from
interference by State, or territorial legislation, ... .
(emphasis added)

In light of this legislative intent, this Court’s analysis of
federal patent monopoly rights in Sears, Roebuck & Co. v.

17

Stiffel Co., 376 U.S. 225 (1954) and Compco Corp. v. Day-
Brite Lighting, Inc., 376 U.S. 234 (1964), provides the appro-
priate constitutional standard for judging state regulation
expanding the federal rights of Hyatt Hotels. In Sears and
Compco, the Court reviewed state unfair competition laws that
had the effect of expanding the monopoly rights awarded
patent holders by federal legislation. The Court recognized
that in granting patent monopolies, Congress had struck a
balance between encouraging invention and permitting free
trade. 376 U.S. at 230-231. Any state law that expanded the
rights of a patent holder, the Court concluded, inevitably
interfered with the federal scheme and violated the Supremacy
Clause. Jd. at 231-232 & 237.

An interpretation of the Illinois Anti-Dilution Act that
would give Hyatt Hotels rights to the name Hyatt which were
denied it by federal law is similarly flawed. As in Sears and
Compco, Illinois may not grant a monopoly greater than the
monopoly provided by Congress, without encroaching on the
federal trademark scheme and violating the Supremacy Clause.

While several lower courts have addressed the question of
the preemptive effect of the Lanham Act on state laws con-
cerning federally registered marks, the issue remains unsettled.
Some courts have indicated preemption may occur. Sargent &
Co. v. Welco Feed Mfg. Co., 195 F.2d 929, 935-936 (8th Cir.
1952) (“Congress has entered and pre-empted the field of
trademark law in its application to interstate commerce.”);
Philco Corp. v. Phillips Mfg. Co., 133 F.2d 663, 672 (7th Cir.
1943) (“Registration of plaintiff’s trademark [under federal
law] rendered all questions concerning its use and protection in
interstate commerce questions of federal law. .. .”);° Mr.
Donut of America, Inc. v. Mr. Donut, Inc., 418 F.2d 838, 844
(9th Cir. 1969) (“The Lanham Act has pre-empted the field of

6 In Philco, the court reviewed claims under the Trademark Act of
1905, ch. 592, 33 Stat. 724 (1905), the predecessor sta.ute to the
Lanham Act. The 1905 law was, if anything, less comprehensive than
the present statute.

18

trademark law and controls.”), overruled, Golden Door, Inc.
v. Odisho, 646 F.2d 347, 352 (9th Cir. 1980). Other courts have
ruled that state trademark statutes may properly expand rights
granted by federal law. See Golden Door, Inc. v. Odisho, 646
F.2d 347, 352 (9th Cir. 1980); Keebler Co. v. Rovira Biscuit
Corp., 624 F.2d 366, 372 n.3 (Ist Cir. 1980); Dallas Cowboys
Cheerleaders, Inc. v. Pussycat Cinema, Ltd., 467 F. Supp. 366
(S.D.N.Y.), aff’d, 604 F.2d 200 (2d Cir. 1979).

This case presents the Court with an opportunity to resolve
the confusion engendered by these inconsistent decisions, to
correct error in the Court of Appeals decision, and to preserve
the regulatory system embodied in the Lanham Act.’

7 Petitioners have argued below that the Court of Appeals order
would deprive them of rights under the First Amendment. While
petitioners do not make this argument here, they reserve the right to do
so in future proceedings below.

19

CONCLUSION

For the foregoing reasons, the Court should grant a writ of
certiorari to review the decision below.

Dated: September, 1984

Respectfully submitted,

JAY GREENFIELD
(Counsel of Record)
345 Park Avenue
New York, New York 10154
(212) 644-8124

MAX E. WILDMAN

DAVID L. SCHIAVONE

One IBM Plaza, Suite 3000
Chicago, Illinois 60611
(312) 222-0400

Attorneys for Petitioners

THOMAS J. FLEMING
PAUL, WEISS, RIFKIND, WHARTON & GARRISON

A partnership including professional
corporations

WILDMAN, HARROLD, ALLEN & DIXON
Of Counsel

la

APPENDIX A
Opinion of the Seventh Circuit

IN THE

UNITED STATES COURT OF APPEALS
FOR THE SEVENTH CIRCUIT

No. 83-1687

a os

HYATT CORPORATION,

Plaintiff-Appellant,
v.

HYATT LEGAL SERVICES and JOEL HYATT,
Defendants-A ppellees.

+

APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE
NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION.
NO. 82 C 6178—JAMES B. MORAN, JUDGE.

—
ARGUED FEBRUARY 24, 1984—DECIDED JUNE 11, 1984
——

Before WOOD and COFFEY, Circuit Judges, and HENLEY,
Senior Circuit Judge.*

° The Honorable J. Smith Henley, Senior Circuit Judge of the United
States Court of Appeals, Eighth Circuit, is sitting by designation.

P

2a

HENLEY, Senior Circuit Judge. This matter comes before
the court on appeal of the district court’s denial of a prelimi-
nary injunction. Appellant Hyatt Corporation, hereinafter
Hyatt Hotels, filed suit against appellees Hyatt Legal Services
and Joel Hyatt alleging violations of the Illinois Anti-Dilution
Act and the Lanham Act, and asserting various other claims.
Injunctive relief and damages were requested. After a hearing
on Hyatt Hotels’ motion for a preliminary injunction, the
district court refused to grant the injunction based on its
finding that Hyatt Hotels failed to show a likelihood of success
on the issue of confusion. While we cannot disagree with the
district court concerning its conclusions under the Lanham
Act, we disagree with its implicit finding that Hyatt Hotels did
not meet the requirements for a preliminary injunction under
the Anti-Dilution Act. We therefore reverse and remand for
entry of a preliminary injunction against Hyatt Legal Services.

Appellant Hyatt Hotels is a well known and well regarded
hotel operator with some seventy hotels in the United States. It
has operated hotels under the Hyatt name for some twenty-five
years. Hyatt Hotels advertises nationally, primarily in newspa-
pers and magazines. It spends approximately $50 million an-
nually for advertising. Twelve million people spend the night at
a Hyatt Hotel every year, and several more millions attend
meetings and events at the hotels. The prices of its hotel rooms
range from moderate to expensive.

Hyatt Legal Services, founded in 1977 in Cleveland, Ohio, is
and always hes beer a legal entity completely separate and
apart from Hyatt Hotels. It provides legal services in a growing
number of states, sixteen at the time of the hearing. There are
four partners, appellee Joel Hyatt, Susan Hyatt, Wayne Willis
and William Brooks. Hyatt Legal Services advertises exten-
sively, mainly on television, and directs its advertisements
towards people with low and moderate incomes. It takes only
certain kinds of cases, primarily simple cases which can be
rapidly handled at high volume. Its goal is to provide basic
legal services at reasonable prices to people who might
otherwise not see a lawyer. Hyatt Legal Services spent approxi-
mately $3 million in advertising in 1982.

3a

I. LANHAM ACT.

Hyatt Hotels registered the service mark “Hyatt” under the
Lanham Act, 15 U.S.C. § 1051 et seq, in 1971. See 15 U.S.C.
§ 1053. It complains that Hyatt Legal Services is guilty of
infringement of that mark, see 15 U.S.C. § 1114, and of unfair
competition, 15 U.S.C. § 1125. At this stage, the vatidity of
the registration is not disputed.

In order to show infringement, the owner of a mark must
show that the alleged infringer is using the same or similar
mark in a way which “is likely to cause confusion, or to cause
mistake, or to deceive.” 15 U.S.C. § 1114(1). The district court
noted that the services provided by Hyatt Hotels and Hyatt
Legal Services are “distinctly different.” The court then evalu-
ated Hyatt Hotels’ evidence of confusion as follows:

Among the thousands of telephone calls to [Hyatt Hotels]
daily, there have been occasional instances in which per-
sons seeking to call Hyatt Legal Services have called the

Hyatt Corporation legal department . . . or have called a
hotel or another of [Hyatt Hotels’] offices to inquire
whether there was any relationship . . . . These occa-

sional calls do not add up, in this court’s judgment, to a
likelihood of confusion.

Hyatt Corp. v. Hyatt Legal Services, No. 82 C 6178(N.D. Ill.
1983). The court emphasized that Hyatt Legal Services’ adver-
tisements do not in any way imply a connection with Hyatt
Hotels and concluded that Hyatt Legal Services’ present use of
the mark “does not support the conclusion that [Hyatt Hotels]
has a reasonable likelihood of prevailing on the merits.” Jd.
Two rules call for restraint in our review here. First, the
question of likelihood of confusion is one of fact and is
therefore subject to the clearly erroneous rule. Processed
Plastic Co. v. Warner Communications, Inc., 675 F.2d 852,
857 (7th Cir. 1982). Second, the district court merely denied a
preliminary injunction; it did not decide the case on the merits.
A denial of a preliminary injunction will be reversed only for

aii ei es |

4a

an abuse of discretion. See id. at 858; Ideal Industries, Inc. v.
Gardner Bender, Inc. 612 F.2d 1018, 1022 (7th Cir. 1979), cert.
denied, 447 U.S. 924 (1980).

The district court’s opinion shows that it gave consideratior.
to all the evidence. Cf. Union-Carbide Corp. v. Ever-Ready,
Inc., 531 F.2d 366, 387 (7th Cir.), cert. denied, 429 U.S. 830
(1976). The evidence of confusion put forth by Hyatt Hotels
was not overwhelming. While our reading of the depositions,
exhibits and hearing transcript would lead us to conclude that
there was more evidence of confusion than occasional mis-
directed phone calls, and while perhaps the evidence would
have supported the opposite result, the district court’s conclu-
sion that Hyatt Hotels did not show a likelihood of success on
the issue of confusion is not clearly erroneous. We find no
abuse of discretion in the court’s refusal to grant the motion
on Lanham Act grounds.’

Hyatt Hotels also argues that Hyatt Legal Services uses the
same typeface as Hyatt Hotels, which enhances the confusion
caused by use of the same mark. In the abstract, there is some
merit to this position. However, on the record before us we are
unable to conclude that Hyatt Hotels consistently uses the
typeface used by Hyatt Legal Services; rather it appears to be
one of several used by Hyatt Hotels and not an inherent part
of the mark. The district court characterized the typeface as of
“no compelling distinctive style.” Nor does the record indicate
specific instances of confusion caused, at least in part, by
similarity of typeface. We are not deciding this issue against
Hyatt Hotels. Rather, we merely find that on the record as
developed so far Hyatt Hotels has not established a likelihood
of success on the issue of whether the similarity of typeface
causes increased confusion.

1 Of course, Hyatt Hotels may present further evidence of confusion
when the case is tried on the merits.

Sa

Il. ANTI-DILUTION ACT.

The Illinois Anti-Dilution Act provides in pertinent part that

[e]very person . . . adopting and using a mark [or] trade
name, . . . may proceed by suit, and the circuit court
shall grant injunctions, to enjoin subsequent use by
another of the same or any similar mark [or] trade name
. if there exists a likelihood of injury to business
reputation or of dilution of the distinctive quality of the
mark [or] trade name. . . of the prior user notwithstand-
ing the absence of competition between the parties or of
confusion as to the source of goods or services.

Ill. Rev. Stat. ch. 140 § 22 (1981). Thus, an injunction must be
granted if the prior user can show that the mark is distinctive
and that the subsequent user’s use dilutes that distinctiveness;
neither competition between the users nor confusion need be
shown. Polaroid Corp. v. Polaraid, Inc., 319 F.2d 830, 836
(7th Cir. 1963); Edgewater Beach Apartments Corp. v. Edge-
water Beach Management Co., 299 N.E.2d 548, 554 (Ill. App.
1973).

A. Likelihood of success.

While some of the evidence the district court considered in
evaluating Hyatt Hotels’ Lanham Act claim is relevant to the
dilution question, the district court did not address separately
Hyatt Hotels’ dilution claim. The court’s focus was clearly on
the lack of confusion, which is not essential to a dilution claim.
In a claim under the Anti-Dilution Act, the relevant factors
are, as stated, distinctiveness of the mark and whether the

2 An injunction must also be granted if the prior user shows a
likelihood of injury to reputation. The district court found that Hyatt Legal
Services had conducted itself “in a circumspect manner,” and there is no
evidence to the contrary. We are unwilling to conclude that the mere
possibility of a few malpractice claims against Hyatt Legal Services will result
in harm to Hyatt Hotels’ reputation.

6a

mark is being diluted.’ We consider the evidence before this
court to be more than sufficient to mandate a finding that
Hyatt Hotels is likely to succeed on the merits.

1. Distinctiveness of the mark.

Hyatt Legal Services points out that “Hyatt” is a personal
name and argues that therefore it cannot be distinctive. Hyatt
Legal Services also contends that because a number of other
businesses in the United States use “Hyatt” in their names, the
“Hyatt” mark is not distinctive.

The district court found the name “Hyatt” to be “reasona-
bly common.” Even if this is so,* it does not preclude a finding
that the mark “Hyatt” is distinctive. The fact that a mark is
“coined” or invented may make distinctiveness easier to show.
Polaroid, 319 F.2d at 837. Other factors are also important,
however, including the length of time the mark has been used,
the scope of advertising and promotions, the nature and extent
of the business, and the scope of the first user’s reputation. See
id. at 832; Instrumentalist Co. v. Marine Corps League, 509 F.
Supp. 323, 332 (N.D. Ill. 1981).

In this case, Hyatt Hotels has been using its mark for some
twenty-five years. It has been registered for thirteen years.
Over the past several years, Hyatt Hotels has conducted an
extensive advertising campaign designed to expand recognition
of its trade name. That advertising in no way implies that
“Hyatt” is a particular person’s name; rather “Hyatt” is used
as a trade name to indicate the source of the service. The hotel
business is one in which travelers consider the name of a hotel
to indicate its quality, cost, services, etc. Hyatt Hotels’ reputa-
tion in its field is, as the district court found, excellent. Except
for the appellee, the record shows no other national or regional
business which uses the name “Hyatt” to identify its services.

3 Prior use must also be established. That is undisputed here.

4 The evidence relied upon by the district court on this point was far
from compelling. However, we see no reason to address its correctness in
view of the remainder of our discussion.

—

7a

In these circumstances, we have no difficulty in concluding
that Hyatt Hotels’ trade name “Hyatt” is distinctive.

2. Dilution.

The second issue is whether Hyatt Legal Services’ use of the
mark “Hyatt” dilutes the mark. Important factors in this
determination are the similarity between the marks used by the
parties, and the extent of the marketing effort by the second
user. Polaroid, 319 F.2d at 832; Instrumentalist, 509 F. Supp.
at 323.

Hyatt Legal Services uses the same mark as Hyatt Hotels. It
is not modified in any way to show that it is a personal name
rather that a trademark, as would be the case if “Joel Hyatt
Legal Services” or “Hyatt, Hyatt, Willis & Brooks” were used
to identify the firm. As indicated, Hyatt Legal Services has
extensively advertised in the past few years, spending millions
of dollars. While it does not yet operate in every state or every
major city, such a national operation is part of its expansion
plans, and it presently has offices in nearly a third of the
states. Hyatt Legal Services’ use of the mark is far more
extensive than was the use of Polaroid, where the defendant
operated in only three states and spent only $1,000.00 on
advertising annually. Polaroid, 319 F.2d at 832. We think it
clear that Hyatt Hotels has shown a likelihood of success on
the question whether Hyatt Legal Services’ use dilutes the
mark.

B. Irreparable injury.

Hyatt Hotels argues that Hyatt Legal Services’ use of its
mark “threaten[s] to unravel the result of more than twenty-
five years of effort by [Hyatt Hotels] to establish the Hyatt
mark.” We note that it is the very nature of dilution to gnaw
away insidiously at the value of a mark. See Polaroid, 319 F.2d
at 836. Such an injury would be remarkably difficult to convert
into damages. “[T]here is no effective way to measure the loss
of sales or potential growth—to ascertain the people who don’t
knock on the door or to identify the specific persons who do

8a

not [return] because of the existence of the infringer.” Jnstru-
mentalist, 509 F. Supp. at 323. We conclude that the difficulty
Hyatt Hotels would encounter in proving damages incurred
because of Hyatt Legal Services’ dilution of its mark and the
nature of the injury direct a finding of irreparable injury.

C. Public interest.

Granting the injunction will not disserve the public interest.
Wesley-Jessen Division v. Bausch & Lomb Inc., 698 F.2d 862,
864 (7th Cir. 1983). The public has an interest in the protection
of trademarks and trade names. Further, the public interest in
affordable legal services and accurate advertising of legal
services will not be adversely affected by the injunction.

D. Balance of hardships.

Hyatt Legal Services argues that a preliminary injunction
will be costly and will result in the loss of the extensive name
recognition it has attained over the past few years.

We recognize that a name change will cost Hyatt Legal
Services money. Signs, stationery, and advertising will have to
be changed. However, Mr. Hyatt conceded during the prelimi-
nary injunction hearing that television ads get “stale” and have
to be changed frequently. Offices run out of stationery, which
then has to be reordered. A name change need not add
substantially to these costs. Further, we consider Hyatt Hotels’
proof that Hyatt Legal Services is violating the Anti-Dilution
Act to go substantially farther than showing a likelihood of
success, and we may certainly take into account the strength
of Hyatt Hotels’ case in balancing the equities. Omega Satellite
Products Co. v. City of Indianapolis, 694 F.2d 119, 123 (7th
Cir. 1982). Finally, it appears that Hyatt Hotels’ rights to an
undiluted trade name are being diminished every time a Hyatt
Legal Services advertisement appears before the public. See
Instrumentalist, 509 F. Supp. at 334. It would be difficult to
cure this injury with money damages. We conclude that the
harm caused Hyatt Hotels by denying the injunction would be
more serious than the harm caused Hyatt Legal Services by
granting the injunction.

9a

Ill. REMEDY.

Hyatt Hotels does not request that Hyatt Legal Services be
enjoined from using the name “Hyatt” at all. Rather, Hyatt
Hotels requests that Hyatt Legal Services be directed to use
Joel Hyatt’s full name, a disclaimer of connection with Hyatt
Hotels, and a different typeface for the word “Hyatt.” We
agree that limited injunctive relief is proper in this case, but we
think Hyatt Hotels’ approach may not be the best in the
circumstances.

The dilution of Hyatt Hotels’ mark flows primarily from
Hyatt Legal Services’ use of the name “Hyatt” without modifi-
cation or any indication that it is a personal name, not a trade
name. Hyatt Hotels’ mark is also diluted because of the
nationwide scope of Hyatt Legal Services’ business. Hyatt
Hotels has not requested that we enjoin Mr. Hyatt from
further expanding his business, and we would not consider
such an injunction appropriate in this case. Thus, protection of
the “Hyatt” mark must come by way of modification of Hyatt
Legal Services’ name. A name such as “Joel Hyatt Legal
Services” or some combination of the last names of the
partners—the traditional means of identifying a law firm—
would meet this concern. There may be other appropriate
names which would not violate the Anti-Dilution statute.
Rather than selecting the name ourselves, we believe the better
practive would be to allow Hyatt Legal Services to select its
new name. If Hyatt Hotels believes the new name violates the

5 This will also allow Hyatt Legal Services to make sure its name will
not violate ethics codes in states in which it operates. We are not sympathetic
to Mr. Hyatt’s claim that requiring a name change may force him to act
unethically. Not to require a change would allow a violation of the Anti-Dilu-
tion Act to go unchecked. Mr. Hyatt and his partners must operate their law
practice in compliance with both the Anti-Dilution Act and state ethics
requirements. We believe that by allowing Mr. Hyatt and his partners to
select their new name, the court can avoid the ethical questions which are not
a proper matter for the district court to consider in the context of this case.
We assume the name chosen will have no obvious ethical problems (i.e., The
Best Law Firm in Town); the ethical improprieties pointed out by Mr. Hyatt

10a

Anti-Dilution Act or the Lanham Act, leave to amend its
complaint should be freely granted.

As discussed supra in a slightly different context, we do not
believe Hyatt Hotels has proved that its use of a special
typeface is distinctive, and therefore decline at this point to
enjoin Hyatt Legal Services from: using that typeface. Of
course, more evidence from both parties can be received when
the case is tried.

We are not sure that a disclaimer of association with Hyatt
Hotels is necessary. We think it likely that the name change will
be sufficient to protect Hyatt Hotels since it will make clear
that the name “Hyatt” as used by Hyatt Legal Services is a
personal name, not a trade name. However, we leave this to the
district court to evaluate in light of the name chosen by Hyatt
Legal Services; it may also be considered if more evidence is
presented after a hearing on the merits.

CONCLUSION

The case is reversed and remanded to the district court for
entry of an injunction prohibiting the appellee from using the
name Hyatt Legal Services. The appellee is to select promptly a
new name, and should notify the district court of the change.
Trial on the merits may then proceed.°®

The judgment of the district court is reversed and remanded
for entry of a preliminary injunction and for further proceed-
ings consistent with this opinion.

—

are much less clear, and might differ from state to state. In this case the
district court cannot be required to investigate on its own, nor can Hyatt
Hotels be charged with an investigation, of the propriety of the new name.
That is the responsibility of Mr. Hyatt and his law partners.

6 We note that Hyatt Hotels raised other claims against Hyatt Legal
Services in its complaint, including common law unfair competition. These
claims may, of course, be taken up at the trial on the merits.

lla

WOOD, Circuit Judge, concurring in part and dissenting in
part.

Although I fully concur with the majority disposition of the
Lanham Act claim, I have some reservation about undertaking
our own original analysis and disposition of the Illinois Anti-
Dilution Act claim, which was not addressed specifically by the
district court.

As sound as this court’s analysis of the Anti-Dilution Act
claim may be, I would prefer to remand that issue to the
district court for its further consideration and the fashioning
of its own appropriate remedy, if necessary. To that extent only,
I respectfully dissent.

A true Copy:
Teste:

Clerk of the United States Court of
Appeals for the Seventh Circuit

12a

APPENDIX B
Memorandum and Order of the United States
District Court for the Northern District of Illinois

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ILLINOIS
EASTERN DIVISION

No. 82 C 6178
———
HYATT CORPORATION,
Plaintiff,

VS.

HYATT LEGAL SERVICES, a partnership, and JOEL HYATT,
Defendants.

no

MEMORANDUM AND ORDER

In this action a familiar hotel operator seeks to restrain an
increasingly familiar legal services enterprise from using a
name—Hyatt. Plaintiff registered the service mark HYATT in
1972, and it now contends that defendant is violating the
Lanham Act by infringement of that service mark and by
unfair competition. It also alleges that defendants’ use of the
designation is common law unfair competition, violates the
Illinois Anti-Dilution Act (Ill. Rev. Stat., ch. 140, § 22),
violates the Illinois Deceptive Trade Practices Act (Ill. Rev.
Stat., ch. 121-1/2, § 311 et seqg.), and violates the Illinois
Consumer Fraud and Deceptive Business Practices Act (Ill.
Rev. Stat., ch. 121-1/2, § 261, et seq.). Defendant denies those
allegations and also attacks the validity of the registration.

ee

13a

More immediately, plaintiff seeks preliminary relief enjoining
defendants from using the name “Hyatt” unless the individual
defendant’s full name is used, there is a disclaimer and the
name is not highlighted and is not displayed by the present
typeface. The motion is denied.

Plaintiff registered the service mark HYATT in 1971, under
the classification for hotel, motel and reservation services. The
service mark is uncontestable. Plaintiff operates about 70
hotels throughout the United States, including several in the
Chicago area. It is a well-known and well-regarded hotel
operator. It uses the name “Hyatt” extensively in its advertising
although, the court notes, the use is generally in conjunction
with a logo which consists of a symbol within a symbol
surrounded by a circle. The typeface generally used appears to
be block letters of no compelling distinctive style.

Joel Hyatt was born Joel Hyatt Zylberberg—his first and
middle names being those of family members who died in the
Holocaust. Born and raised in Cleveland, he graduated from
Dartmouth and Yale, receiving his law degree from the latter
school in January 1976. During that year he was engaged in a
political campaign for his now father-in-law. From there he
went to a prominent New York law firm. Because of the
practical difficulties occasioned by his last name, defendant
used “Hyatt” as his name during the campaign and, in July
1976, legally changed his name to Joel Z. Hyatt.

A year after the individual defendant had petitioned for a
change of name, the Supreme Court in Bates v. State Bar of
Arizona, 433 U.S. 350 (1977), held unconstitutional various
prohibitions on advertising by lawyers. While plaintiff urges
that Joel Hyatt, through some sort of clairvoyance, changed
his name in anticipation of that decision for the purpose of
trading on its name, this court rejects that conclusion. I believe
that Joel Hyatt conceived the notion of opening legal clinics
following the Bates decision, and that the name change was
unrelated to that conception and was, rather, related to the
realities of politics and big-firm New York practice.

Hyatt Legal Services began with a single office in Cleveland,
a partnership of Joel Hyatt and Wayne G. Willis. At that time

l4a

Willis was not licensed to practice law. It is unclear whether
that was the reason for using Hyatt’s name as designating the
partnership or whether it was a natural outgrowth of what
appears to have been Hyatt’s more visible posture in the
partnership. In any event, at that time Ohio required that those
practicing law designate themselves by at least one surname.
Hyatt Hotels did not then have any hotels in Ohio.

Since 1977 Hyatt Legal Services has grown into a multi-state
network of law offices, presently having over 200 attorneys in
over 100 neighborhood law offices located in numerous cities
in sixteen states. Approximately 80 per cent of its advertising is
through the medium of television. The remainder of its adver-
tising budget is divided among Yellow Pages listings, advertise-
ments in local newspapers at the time a new office opens, and
promotional material—including a sign—at each neighbor-
hood office. Hyatt Legal Services has about eleven offices
presently in the Chicago metropolitan area.

The name “Hyatt” is reasonably common. It appears in
numerous listings in telephone directories and in commercial
directories listing businesses. Plaintiff did not communicate
with defendants concerning the use of the name Hyatt Legal
Services until the summer of 1981. While the evidence on this
aspect was not developed, it appears that plaintiff’s concerns
were directly related to the growth of Hyatt Legal Services as a
force in the national marketplace.

For the purposes of this motion, the court assumes that
Hyatt Corporation has an incontestable service mark which
gives it the exclusive right to use it with the services specified in
its registration, without being subject to any laches defense.
See United States Jaycees v. Chicago Junior Association of
Commerce and Industry, 505 F.Supp. 998 (N.D. Ill. 1981).
Here, however, the services provided by Hyatt Legal Services
are far different from those encompassed in plaintiff’s registra-
tion, and the thrust of its motion is that it has an established
service mark and that the use of the word “Hyatt” in connec-
tion with legal services creates a likelihood of confusion in the
perception of the public respecting the origin of these services
and the possible affiliation of those services to Hyatt Corpora-

SE ee a eee a

SAO at adam os

lSa

tion. It also urges that defendants’ conduct dilutes its service
mark. ;

The HYATT service mark is not arbitrary or fanciful. In-
deed, it is a personal name, and the courts have traditionally
been somewhat reluctant in restricting the use by another of his
name in connection with his trade or business. See Gilson,
Trademark Protection & Practice, § 2.08. It is beyond dispute,
however, that a person does not have an absolute right to use
his name for business purposes under federal trademark law,
John R. Thompson Co. v. Holloway, 366 F.2d 108 (Sth Cir.
1966) or under the Illinois Anti-Dilution Act, Burghoff Restau-
rant Co., Inc. vs. Louis W. Burghoff, Inc., 499 F.2d 1183 (7th
Cir. 1974). That use is permissible only if it is not likely to
cause confusion, John R. Thompson Co. v. Holloway, supra,
or there is not a likelihood of injury to business reputation or
dilution of the distinctive quality of another’s mark, Polaroid
Corporation v. Polaraid, Inc., 319 F.2d 830 (7th Cir. 1963).
The paramount interest is the protection of the public from
confusion, which protects the mark’s owner’s right to a non-
confused public. James Burrough Ltd., v. Sign of Beafeater,
Inc., 540 F.2d 266 (7th Cir. 1976).

Here the services provided are distinctly different—not
another restaurant or a restaurant and a related consumable,
where a highway sign may lead to an association in the mind of
a casual and weary traveler. Indeed, it is difficult to perceive of
services which are less related. Hyatt Corporation has not
shared with the court any plans to enter the field of providing
legal services. While there are some Hyatt hotels in the moder-
ate price range, the thrust of plaintiff’s advertising is toward a
market which can afford excellent accommodations. Hyatt
Legal Services caters to persons of moderate incomes who have
routine legal problems of a nature that a law office would find
repetitive.

What evidence is there then of likely consumer confusion?
That evidence consists almost entirely of “a few isolated
instances of misdirected phone calls . . . .” Walt-West En-
terprises, Inc. v. Gannett Company, Inc., F.2d ____ (7th
Cir. 1982). Among the thousands of telephone calls to plaintiff

l6a

daily, there have been occasional instances in which persons
seeking to call Hyatt Legal Services have called the Hyatt
Corporation legal department to inquire whether it was Hyatt
Legal Services or have called a hotel or another of plaintiff’s
offices to inquire whether there was any relationship. There is
no indication that any of these few callers was an actual
customer of plaintiff or that it was more than a short-lived
confusion by individuals casually acquainted with the business.
See Armco, Inc. v. Armco Burglar Alarm Co., Inc., 693 F.2d
1155 (Sth Cir. 1982).

Those occasional calls do not add up, in this court’s judg-
ment, to a likelihood of confusion, as that term is understood
in the law. This court has viewed a television commercial, and
it has nothing to do with hotels, does not emphasize the Hyatt
name by itself, and it does not seek in any manner to trade on
plaintiff’s good will. Even if we should compare the printed
material side-by-side, to whatever extent that may have a
bearing on the issue of public perception, the only material
that could possibly raise any question are the store signs, which
contain the word “Hyatt” in block capitals of a size larger than
the designation “Legal Services”. It is difficult, however, to
believe that such a sign at a shopping center legal clinic could
lead any person giving any real thought to the matter to the
conclusion that that clinic was somehow related to Hyatt
Corporation.

Obviously, the use of the name “Hyatt Legal Services” for a
national organization carries the potentiality for possible con-
fusion unless the defendants conduct themselves in a circum-
spect manner. Defendants’ present use, however, does not
support the conclusion that plaintiff has a reasonable likeli-
bood of prevailing upon the merits. Plaintiff’s evidence indi-
cates that some people will wonder whether a different
enterprise using the same surname is somehow associated with
a vigorous national organization of that name, even though the
services of the enterprises are entirely different. That notion is,
perhaps, fostered by diversification strategies of recent years,
but it is not enough to translate into total protection of the

eT a ee ae ee

17a

name of a national company, regardless of the field of en-
deavor in which the name might otherwise be used. .

Further, defendants’ enterprise has, at great expense, been
advertised as Hyatt Legal Clinics or Hyatt Legal Services since
1977. The cost of changing signs and television commercials,
and the less measurable cost of re-educating the public to a
different name or of accepting disclaimers, all militate against
the conclusion that the balance of hardships favors the plain-
tiff. Indeed, this court concludes quite the contrary. For the
reasons stated, the motion for preliminary injunction is denied.

/s/ James B. Moran

JAMES B. MORAN
Judge, United States District Court

April 5, 1983.

18a

APPENDIX C
Judgment of the Seventh Circuit
UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT
Chicago, Illinois 60604

June 11, 1984

Before

Hon. HARLINGTON WOOD, JR., Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. J. SMITH HENLEY, Senior Circuit Judge*

Roa

HYATT CORPORATION,
Plaintiff-Appellant,

No. 83-1687 —vs.—

HYATT LEGAL SERVICES, a partnership and JOEL HYATT,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division

No. 82 C 6178

Judge James B. Moran

*

° The Honorable J. Smith Henley, Senior Circuit Judge of the United
States Court of Appeals, Eighth Circuit, is sitting by designation.

19a

Opinion by Judge Henley

Judge Wood concurring in part and dissenting in part

7

JUDGMENT—ORAL ARGUMENT

This cause was heard on the record from the United States
District Court for the Northern District of Illinois, Eastern
Division, and was argued by counsel.

On consideration whereof, IT IS ORDERED AND AD-
JUDGED by this Court that the judgment of the said District
Court in this cause appealed from be, and the same is hereby
REVERSED, with costs, and the case is REMANDED, in
accordance with the opinion of this Court filed this date.

20a

APPENDIX D
Order
UNITED STATES COURT OF APPEALS

FOR THE SEVENTH CIRCUIT
Chicago, Illinois 60604

July 24, 1984

Before

Hon. HARLINGTON WOOD, JR., Circuit Judge
Hon. JOHN L. COFFEY, Circuit Judge
Hon. J. SMITH HENLEY, Senior Circuit Judge*

7

HYATT CORPORATION,

Plaintiff-Appellant,
No. 83-1687 —Vvs.—

HYATT LEGAL SERVICES and JOEL HYATT,

Defendants-Appellees.

Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division

No. 82 C 6178

James B. Moran, Judge

-

° The Honorable J. Smith Henley, Senior Circuit Judge of the United
States Court of Appeals, Eighth Circuit, is sitting by designation.

ee Meee:

2la

ORDER

On consideration of the petition for rehearing and sugges-
tion for rehearing en banc filed in the above-entitled cause by
counsel for Defendants-Appellees, no judge in active service
has requested a vote thereon, and a majority of the judges on
the original panel have voted to deny a rehearing. Accordingly,

IT IS ORDERED that the aforesaid petition for rehearing
be, and the same is hereby, DENIED.

22a

APPENDIX E

Model State Trademark Bill

The Model State Trademark Bill (U.S. Trademark Ass’n
1964),* as amended, provides in section 12:

Likelihood of injury to business reputation or of dilu-
tion of the distinctive quality of a mark registered under
this Act, or a mark valid at common law, or a trade name
valid at common law shall be a ground for injunctive
relief notwithstanding the absence of competition between
the parties or the absence of confusion as to the source of
goods or services.

ee a ee er ee

States with Anti-Dilution Statutes )

Alabama Ala. Code § 8-12-17 (Supp. 1983)

Arkansas Ark. Stat. Ann. § 70-550 (1979)

California Cal. Bus. & Prof. Code § 14330 (West
Supp. 1984)

Connecticut Conn. Gen. Stat § 35-1 1i(c) (1981)

Delaware Del. Code Ann. tit. 6, § 3313 (Supp. 1982)

Florida Fla. Stat. Ann. § 495.151 (1972)

Georgia Ga. Code § 106-115 (1984)

Idaho Idaho Code § 48-512 (1977)

Illinois Ill. Rev. Stat. ch. 140, § 22 (Supp. 1984)

lowa lowa Code § 548.11(2) (Supp. 1984)

Maine Me. Rev. Stat. Ann. tit. 10, § 1530 (1980)

° The Model State Trademark Bill was prepared by the United States
Trademark Association in 1949. Its anti-dilution provision, section 12, was :
added in 1964. See Model State Trademark Bill, Statement (U.S. :
Trademark Ass’n 1964).

Massachusetts

Missouri
Montana
Nebraska

New
Hampshire

New Mexico
New York

Oregon

Pennsylvania

Rhode
Island

Tennessee

23a

Mass. Gen. Laws Ann. ch. 110B, § 12 (West
Supp. 1980)

Mo. Ann. Stat. § 417.061(1) (Vernon 1979)
Mont. Code Ann. § 30-13-334 (1983)
Neb. Rev. Stat. § 87-122 (1978)

N.H. Rev. Stat. Ann. § 350-A:12‘(Supp.
1981)

N.M. Stat. Ann. § 57-3-10 (1978)

N.Y. Gen. Bus. Law § 368-d (McKinney
1984)

Ore. Rev. Stat. § 647.107 (1971)

54 Pa. Cons. Stat. Ann. § 1124 (Supp.
1984)

R.I. Gen. Laws § 6-2-12 (Supp. 1983)

Tenn. Code Ann. § 47-25-433 (Supp. 1983)

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385017_2275%3A1. Public record. Not legal advice.