MEMORANDUM OPINION AND ORDER
SHADUR, Senior District Judge.
Zeocrystal Industries, Inc. (“Zeoerystal”) has sued Fox Broadcasting Company and eight other defendants under the Federal Trademark Act (“Act,” 15 U.S.C. §§ 1051-1128
), claiming damages in excess of $10 million. Based on its initial review of the Complaint,
this Court sua sponte orders Zeocrystal to address in a supplemental filing the matters raised by this memorandum opinion and order — both those potentially impacting on this Court’s jurisdiction and also the significant nonjurisdictional issues spoken of here.
According to Complaint ¶ 13:
13. Plaintiff ZEOCRYSTAL INDUSTRIES, INC., has been and now is extensively engaged in the business of manufacturing and marketing natural volcanic minerals in powder or rock form, primarily in the form of crystals, for removing odors in commercial, residential or industrial applications, and since 1993, has marketed its products under the trademark ZEOCRYSTAL.
And consistently with that allegation, on October 25, 1994 Zeoerystal obtained from the United States Patent and Trademark Office Registration No. 1,859,374 covering the mark “ZEOCRYSTAL” (the “Registration”) for
the class of goods described this way in the Registration (Complaint Ex. 1):
Natural volcanic mineral in powder or rock form for removing odors in commercial, residential, or industrial applications, in Class I (U.S. Cl. 6).
Zeocrystal’s grievance on which it has sued here is that defendants, in connection with a children’s television program called “Power Rangers,” have referred to a fanciful magic weapon as using “ZEO Crystals,” “Zeo Crystal” or substantially similar representations (Complaint ¶ 18) and have developed a promotional line of related children’s toys, accessories and other products (id). Moreover, according to Complaint ¶¶ 21 and 22 defendants are about to involve that “fantasy magical weapon” (Complaint ¶20) in expanded activity:
21. That Defendants [naming them], individually and jointly, have announced via broadcasting, promotional lead-ins, and printed media, that a new children’s program about “ZEO Rangers” will be commencing on April 20, 1996, on said “POWER RANGERS” show.
22. That BANDAI CO., LTD., is manufacturing certain children’s toys and accessories with the logo of “POWER RANGERS ZEO” and toys identified as “ZEONIZER,” which uses “crystals,” and advertising to the public to “Help the ZEO Rangers save the world with these other morphinated toys!”, and “Evil Space Aliens cringe before the mighty Zeo Blaster!”, thereby recovering substantial profits and gains as a direct result of the Plaintiffs trademark, all of whom are being distributed by the Defendant BANDAI AMERICA INCORPORATED.
Some obvious problems leap off the pages of the Complaint (even apart from counsel’s blatant miseharacterization of the Act’s incontestability provision, as discussed in n. 3). Most importantly, trademark registrations do not grant rights in a vacuum. As the Registration reflects, it covers the attachment of the mark only to specified goods— not the types of goods marketed by defendants. Trademark registrations do
not
create a presumptive exclusive right to use the mark for entirely different goods, such as those ascribed to defendants here — see (1) the excellent discussion in
Natural Footwear, Ltd. v. Hart, Schaffner & Marx,
760 F.2d 1383, 1396 (3d Cir.1985); (2) our Court of Appeals’ decision in
Miller Brewing Co. v. G. Heileman Brewing Co.,
561 F.2d 75, 78-79 (7th Cir.1977); and (3) generally, the discussion and citations in 3
McCarthy on Trademarks and Unfair Competition
§ 24.12[2][a], at 24-104 to 24-105 (1995) and 1 Jerome Gilson and Jeffrey Samuels,
Trademark Protection & Practice
§ 4.04, at 4-61 to 4-63.
Thus Zeocrystal’s Count I trademark infringement claim is an extremely doubtful candidate for survival. And Zeoerystal’s Count II reliance on the concept of the federal law of unfair competition (Act § 1125(a)) would appear just about equally dubious: Does a highly specialized company such as Zeoerystal, in business for just 2-% years,
really
believe that the wholly different and fanciful uses that it ascribes to defendants will be viewed by
anyone
as a false designation of origin (that is, as though Zeoerystal were the source of those uses)?
What that means is that Zeoerystal is likely to be relegated to its state law claims: its Count III claim of common law unfair competition (although even there any likelihood of confusion would seem remote at first blush), its Count IV dilution claim under the Illinois antidilution statute (765 ILCS 1035/15) and its Count V claim of violation of the Illinois Uniform Deceptive Trade Practices Act (815 ILCS 510/1 to 510/7). For the present it is unnecessary to address the merit or lack of merit in such claims, for subject matter jurisdiction over them is questionable: Zeoerystal should at a minimum seek to avoid the prospect that such supplemental
jurisdiction claims (see 28 U.S.C. § 1867(a)) would have to be dismissed under the teaching of
United Mine Workers v. Gibbs,
383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966) if its federal-question claims were to be rejected early on.
For that purpose Zeocrystal’s counsel has gone only part of the way toward alleging the alternative possibility that federal jurisdiction may exist on a diversity of citizenship basis. And even those partial allegations create doubts as to
both
facets of diversity jurisdiction.
As for the amount in controversy, the dollar signs in Zeocrystal’s and its counsel’s eyes suggested by their Count I reference to $10 million in damages are plainly just as fanciful as defendants’ “magical weapon.” In that respect it is not enough for a litigant to bootstrap itself by announcing such a boxcar figure. In the present circumstances some reasonable good faith predicate must be shown for asserting that even the jurisdictional floor for such purposes (over $50,000 under 28 U.S.C. § 1332) has been met.
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MEMORANDUM OPINION AND ORDER
SHADUR, Senior District Judge.
Zeocrystal Industries, Inc. (“Zeoerystal”) has sued Fox Broadcasting Company and eight other defendants under the Federal Trademark Act (“Act,” 15 U.S.C. §§ 1051-1128
), claiming damages in excess of $10 million. Based on its initial review of the Complaint,
this Court sua sponte orders Zeocrystal to address in a supplemental filing the matters raised by this memorandum opinion and order — both those potentially impacting on this Court’s jurisdiction and also the significant nonjurisdictional issues spoken of here.
According to Complaint ¶ 13:
13. Plaintiff ZEOCRYSTAL INDUSTRIES, INC., has been and now is extensively engaged in the business of manufacturing and marketing natural volcanic minerals in powder or rock form, primarily in the form of crystals, for removing odors in commercial, residential or industrial applications, and since 1993, has marketed its products under the trademark ZEOCRYSTAL.
And consistently with that allegation, on October 25, 1994 Zeoerystal obtained from the United States Patent and Trademark Office Registration No. 1,859,374 covering the mark “ZEOCRYSTAL” (the “Registration”) for
the class of goods described this way in the Registration (Complaint Ex. 1):
Natural volcanic mineral in powder or rock form for removing odors in commercial, residential, or industrial applications, in Class I (U.S. Cl. 6).
Zeocrystal’s grievance on which it has sued here is that defendants, in connection with a children’s television program called “Power Rangers,” have referred to a fanciful magic weapon as using “ZEO Crystals,” “Zeo Crystal” or substantially similar representations (Complaint ¶ 18) and have developed a promotional line of related children’s toys, accessories and other products (id). Moreover, according to Complaint ¶¶ 21 and 22 defendants are about to involve that “fantasy magical weapon” (Complaint ¶20) in expanded activity:
21. That Defendants [naming them], individually and jointly, have announced via broadcasting, promotional lead-ins, and printed media, that a new children’s program about “ZEO Rangers” will be commencing on April 20, 1996, on said “POWER RANGERS” show.
22. That BANDAI CO., LTD., is manufacturing certain children’s toys and accessories with the logo of “POWER RANGERS ZEO” and toys identified as “ZEONIZER,” which uses “crystals,” and advertising to the public to “Help the ZEO Rangers save the world with these other morphinated toys!”, and “Evil Space Aliens cringe before the mighty Zeo Blaster!”, thereby recovering substantial profits and gains as a direct result of the Plaintiffs trademark, all of whom are being distributed by the Defendant BANDAI AMERICA INCORPORATED.
Some obvious problems leap off the pages of the Complaint (even apart from counsel’s blatant miseharacterization of the Act’s incontestability provision, as discussed in n. 3). Most importantly, trademark registrations do not grant rights in a vacuum. As the Registration reflects, it covers the attachment of the mark only to specified goods— not the types of goods marketed by defendants. Trademark registrations do
not
create a presumptive exclusive right to use the mark for entirely different goods, such as those ascribed to defendants here — see (1) the excellent discussion in
Natural Footwear, Ltd. v. Hart, Schaffner & Marx,
760 F.2d 1383, 1396 (3d Cir.1985); (2) our Court of Appeals’ decision in
Miller Brewing Co. v. G. Heileman Brewing Co.,
561 F.2d 75, 78-79 (7th Cir.1977); and (3) generally, the discussion and citations in 3
McCarthy on Trademarks and Unfair Competition
§ 24.12[2][a], at 24-104 to 24-105 (1995) and 1 Jerome Gilson and Jeffrey Samuels,
Trademark Protection & Practice
§ 4.04, at 4-61 to 4-63.
Thus Zeocrystal’s Count I trademark infringement claim is an extremely doubtful candidate for survival. And Zeoerystal’s Count II reliance on the concept of the federal law of unfair competition (Act § 1125(a)) would appear just about equally dubious: Does a highly specialized company such as Zeoerystal, in business for just 2-% years,
really
believe that the wholly different and fanciful uses that it ascribes to defendants will be viewed by
anyone
as a false designation of origin (that is, as though Zeoerystal were the source of those uses)?
What that means is that Zeoerystal is likely to be relegated to its state law claims: its Count III claim of common law unfair competition (although even there any likelihood of confusion would seem remote at first blush), its Count IV dilution claim under the Illinois antidilution statute (765 ILCS 1035/15) and its Count V claim of violation of the Illinois Uniform Deceptive Trade Practices Act (815 ILCS 510/1 to 510/7). For the present it is unnecessary to address the merit or lack of merit in such claims, for subject matter jurisdiction over them is questionable: Zeoerystal should at a minimum seek to avoid the prospect that such supplemental
jurisdiction claims (see 28 U.S.C. § 1867(a)) would have to be dismissed under the teaching of
United Mine Workers v. Gibbs,
383 U.S. 715, 726, 86 S.Ct. 1130, 1139, 16 L.Ed.2d 218 (1966) if its federal-question claims were to be rejected early on.
For that purpose Zeocrystal’s counsel has gone only part of the way toward alleging the alternative possibility that federal jurisdiction may exist on a diversity of citizenship basis. And even those partial allegations create doubts as to
both
facets of diversity jurisdiction.
As for the amount in controversy, the dollar signs in Zeocrystal’s and its counsel’s eyes suggested by their Count I reference to $10 million in damages are plainly just as fanciful as defendants’ “magical weapon.” In that respect it is not enough for a litigant to bootstrap itself by announcing such a boxcar figure. In the present circumstances some reasonable good faith predicate must be shown for asserting that even the jurisdictional floor for such purposes (over $50,000 under 28 U.S.C. § 1332) has been met.
As for the other half of the diversity requirement, Complaint ¶¶3 through 12 refer to each defendant as “a foreign corporation,” presumably speaking of their respective places of incorporation as outside of Illinois (the state where Complaint ¶2 says Zeocrystal is both incorporated and has its principal place of business). Some defendants are also identified in terms of their principal places of business, the other branch of the definition of corporate citizenship in 28 U.S.C. § 1332(c)(1). Others, though, are spoken of only as having
“a
[not
the
] principal place of business” elsewhere — not enough to do the job. And there are additional flaws evident when the Complaint’s allegations are laid alongside the requirements of 28 U.S.C. § 1332(c)(1) for comparison.
Accordingly Zeocrystal’s counsel is ordered to file in this Court’s chambers, on or before May 6, 1996, an appropriate amendment to the Complaint or a self-contained Amended Complaint or some other submission that is appropriately responsive to all of the matters set out here. In addition, copies of that filing must also be transmitted to each defendant, either in the same manner that counsel has specified for the service of process on that defendant or by some other means calculated to bring the matter to that defendant’s attention before its responsive pleading is due.