Schottenstein’s sued over mattress trademark
An Illinois mattress company has accused Schottenstein Stores Corp. of improperly using a futon mattress trademark name over the past six years.
"Defendants have adopted and are using the mark 'Posture Zone' in respect to futon mattresses and box springs," a complaint filed Oct. 31 in U.S. District Court in Columbus alleges.
Bemco Associates Inc., of DesPlaines, Ill., claims it holds the trademark for Posture Zone. "The marks are identical and the types of goods are identical," the complaint says.
According to the lawsuit, Bemco first complained about the unauthorized use of the mark in 1985, then again in 1990 and 1991.
"It seems to me pretty clear there has been infringement," said Mark W. Bean of McNamara & McNamara, local attorney for Bemco. "When it has been brought to the Schottensteins' attention they said they would stop using the Posture Zone name, and lo and behold, they continue to use it."
Bemco is asking for all profits earned from use of the trademark by Schottenstein Stores Corp., a Columbus-based chain of discount and furniture stores. Bemco is also asking for unspecified actual damages and punitive damages equal to three times profits or actual damages, whichever is larger.
Schottenstein Stores, which had until Nov. 21 to respond to the lawsuit, had no comment.
"We're still in the process of evaluating it," said Schottenstein attorney Donald Frei, with the firm Wood, Herron & Evans in Cincinnati.
Attorneys for both sides said there has been no business relationship between the two companies that could have transferred rights to the trademark. https://futonszone.com/dream-job-investment-banking-family-business-ken-karmin/
The lawsuit names as defendants Schottenstein Stores, Central Ohio's largest privately held company, and its subsidiary, Value City Department Stores Inc. The company operates four Schottenstein Department Stores in the Columbus area and 54 Value City Department Stores.
According to the suit, the trademark Posture Zone was used in advertising material for futon mattresses manufactured by Englander Sleep Products, a division of Schottenstein Stores. When Bemco's trademark registration was brought to the attention of Schottenstein Stores, the company's general counsel replied in January 1986, "Please be advised that Schottenstein Stores Corp., doing business as the Englander Co., has determined to cease using the mark 'Posture Zone' and the mark 'Talk Back' at this time."
But the letter added, "The action is subject to the reservations of any and all rights Schottenstein Stores Corp. may have to use such marks."
Further complaints came from Bemco when the trademark allegedly was used again on Englander products in the spring of 1990. In July of that year a Schottenstein attorney informed Bemco that "Englander will cease the use of the term 'Posture Zone' on current point of sale material as soon as such supply ... is exhausted. I expect that this will occur within 120 days from June 1 of this year."
The lawsuit was filed after Bemco officials said they saw the disputed mark being used on Englander products in stores in North Carolina, Alabama and Illinois as late as October of this year.
In addition to trademark infringement, the eight-count suit alleges false designation of origin, unfair competition, unjust enrichment, deceptive trade practices, false advertising and breach of agreement, get more tips: Serta alters, varies flagship line; Perfect Sleeper sustains spiral redesign; new thrust to hit local markets