United States District Court, W.D. Wisconsin
OPINION & ORDER
D. PETERSON District Judge.
Piano Gallery Madison, LLC, (PGM) operated Billings Piano
Gallery in Madison, Wisconsin, until 2014. Then PGM's
managing member, Grant Billings, moved to Florida and sold
the business to defendant Create Music, LLC (CM). PGM alleges
that CM and the other defendants failed to perform as they
were required to by the asset purchase agreement executed by
the parties. So PGM filed a complaint against defendants
alleging breach of contract, civil theft, violation of
Wisconsin's Deceptive Trade Practices Act, trade name
infringement, and violation of the Lanham Act. Dkt. 5.
move to dismiss several of PGM's claims under Federal
Rule of Civil Procedure 12(b)(6). Dkt. 10. The court will
grant defendants' motion in part, dismissing PGM's
claim under § 100.18.
court draws the following facts from PGM's complaint,
Dkt. 5, and accepts them as true for the purpose of deciding
defendants' motion. Zahn v. N. Am. Power & Gas, LLC,
815 F.3d 1082, 1087 (7th Cir. 2016).
Billings, like his father and grandfather, sells pianos. In
2007, Billings formed PGM, which sold Steinway & Sons
pianos at a gallery in Madison, Wisconsin, under the trade
name Billings Piano Gallery. Defendant Debra Galla worked as
PGM's office manager. Defendant Benjamin Garber was
another PGM employee.
2014, Billings decided to move to Florida to run his
father's Steinway piano gallery there. He negotiated a
sale of the Madison store to Garber. Billings's and
Garber's attorneys drafted an asset purchase agreement
under which PGM sold its business and assets to CM, a limited
liability company of which Garber is the sole member.
Billings and Garber executed the agreement, which became
effective on October 15, 2014. Galla continued to work as the
office manager for CM.
terms are significant to the parties' dispute:
• The agreement defines the assets to include the
“limited right and license to use and do business under
the service marks ‘Piano Gallery Madison, '
‘Billings Piano, ” ‘www.billingspiano.com,
' and ‘Billings Piano Gallery.'”
Id. at 3.
• It specifies that CM's use of PGM's marks
“inures to the benefit of” PGM and that if PGM
determined that CM's “uses of the Marks is
inconsistent with [PGM's] quality standards . . . or . .
. with maintaining the goodwill inherent in the Marks,
” it could require CM to “cease all such
disapproved use of the Marks.” Id.
• The agreement specifically excludes from the purchased
assets all proceeds from piano sales under contract or
purchase order as of the effective date.
• In the agreement, CM agrees to pay PGM in part by
obtaining a release of PGM's and Billings's
obligations to GE Capital for 28 pianos called the
“floor plan inventory.” The agreement specifies
that CM was to obtain the release by October 24 and until it
did so, “title to the [floor plan] inventory . . .
remains with [PGM] a[nd] any proceeds of sales from any such
inventory shall be turned over to [PGM] immediately upon
receipt by [CM].” Id. at 8.
• The parties agreed to pay half of the “fees and
expenses incurred . . . in connection with . . . the
execution, delivery and performance” of the agreement,
including attorney fees. Id. at 15.
alleges that CM did not abide by the terms of the agreement.
It did not pay half of “the fees that PGM incurred
related to drafting and executing the” agreement. Dkt.
5, at 5. It did not obtain the GE release until December 11.
Both before and after the effective date of the agreement,
Garber and Galla retained payments for pianos that, under the
terms of the agreement, should have been given to PGM. They
altered accounting records to hide these missing payments.
Billings also discovered that before the effective date of
the agreement, Garber used a PGM credit card without
permission. PGM complained to ...