materiality divides false advertising and TM once again even with explicit falsity about official partnership

Chicago Cubs Baseball Club, LLC v. Dunican, No. 24-cv-05086, 2026 WL 2937177 (N.D. Ill. Sept. 30, 2026)

The Cubs play at Wrigley Field, a historic open-air ballpark. They sell tickets and incur significant expenses to operate Wrigley Field. Defendant Wrigley View

is a rooftop business located adjacent to Wrigley Field, offering views of the Chicago skyline, Lake Michigan, and Wrigley Field. The premises include stadium-style bleacher seating and a skydeck on the rooftop that can accommodate up to 200 guests. From the seats at Wrigley View, customers can see into Wrigley Field over the barriers of the stadium. Defendants sell tickets to the rooftop on days there are games and events at Wrigley Field; in fact, it is only open for business on game days and days with other Wrigley Field events. The Wrigley View website includes a schedule of the Cubs’ home games with hyperlinks to purchase tickets, comparing the Wrigley View experience to that of a ballgame at Wrigley Field.

Wrigley View’s only revenue comes from selling tickets for admission to the rooftop, which includes unlimited ballpark-style concessions. Ticket prices vary depending on, for instance, the opposing team’s popularity, and sales continue despite the Cubs’ installation of semi-transparent mesh screens obstructing the view.

Wrigley View used to have an agreement with the Cubs where it paid royalties and got to use Cubs marks in advertising and advertise a Cubs endorsement, but it expired. Defendants thus reviewed and removed certain website references to the Cubs, including changing its ticket names to simply “Chicago vs. [the opposing team].” But the Wrigley View website still included a PDF brochure containing the Cubs logo. Defendants also continued to include the statement “Official Partner of the Cubs” in its marketing through 2025.

The court found actionable misappropriation. The Cubs “created a product through extensive time, labor, skill or money,” defendants “used [its] product in competition with [Plaintiff], gaining a special advantage ... because [Defendants] bore little or no burden of the expense of development,” and this use caused “commercial damage.” There was no copyright preemption, and the damage came because people would otherwise have to buy tickets from the Cubs or an entity paying royalties to watch live. This also constituted unjust enrichment.

There was also trademark infringement because “the use of a trademark after a license agreement’s termination by itself establishes a likelihood of confusion.”

However, defendants got summary judgment on the false advertising claim despite the “undisputed” falsity and deceptiveness of the endorsement claim, because there was no evidence of materiality. “While deception may be presumed for a literally false statement, there is no such presumption for materiality.” And there was insufficient evidence that “consumers are more likely to purchase tickets to establishments that are partnered with or endorsed by the Cubs, than those that are not…. An official partnership with the Cubs is not an inherent characteristic to the business of viewing the Cubs’ games.” There was no witness testimony or surveys “sufficient to raise an inference of materiality.”