OPINION1

CHRISTOPHER S. SONTCHI, Bankruptcy Judge.

INTRODUCTION

Before the Court is a complaint filed by Hamin Khatib ("Plaintiff") against Chicago Newspaper Liquidation Corp. Liquidating Trust ("Liquidating Trust"), formally known as Sun-Times Media Group, Inc. ("STMG") (The Court refers to the Liquidating Trust (f/k/a STMG) as the "Defendant"). In the complaint, the Plaintiff claims copyright infringement, patent infringement, unfair competition, trade secret misappropriation, unjust enrichment and other various common law claims related to an "Iqraa Front-Backpack" designed by Plaintiff. The Liquidating Trust moved to dismiss these claims because: (1) the claims asserted in Plaintiff's complaint are time barred by applicable bar dates set by the Bankruptcy Court; (2) the Plaintiff fails to allege sufficient facts to state claims upon which relief may be granted; and (3) Plaintiff failed to serve Defendant with the adversary complaint.

As set forth more fully below, the Court denies the motion dismiss, in part, and grants the motion, in part. The Court denies the motion on the basis that the (1) Plaintiff's claims are time barred and (2) Plaintiff failed to serve the Defendant. The Court grants the motion to dismiss with prejudice as the Plaintiff has failed to state plausible claims upon which relief may be granted pursuant to Rule 12(b)(6). As a result, the case will be dismissed with prejudice in its entirety.

JURISDICTION

This Court has jurisdiction over this matter pursuant to 28 U.S.C. §§ 157 and 1334. Venue is proper in this District pursuant to 28 U.S.C. §§ 1408 and 1409. This is a core proceeding pursuant to 28 U.S.C. § 157(b)(2) and this Court has the judicial power to enter a final order.

BACKGROUND

I. The Bankruptcy Case

On March 31, 2009 ("Petition Date"), Chicago Newspaper Liquidation Corp. ("CNLC"), formerly known as STMG, along with a number of other affiliated entities (collectively, the "Debtors"), commenced proceedings in this Court under Chapter 11 of the Bankruptcy Code. Shortly thereafter, the Debtors sought approval from the Court to sell substantially all of their assets under Section 363 of the Bankruptcy Code. On October 8, 2009, the Court entered an Order ("Sale Order") that approved a sale to STMG Holdings, LLC, free and clear of all liens, claims, encumbrances and other interests. Thereafter, STMG became a non-operational entity with no operating business assets.

Subsequently, on August 17, 2011, a plan of liquidation was confirmed by the Court (the "Plan"). Thereafter, the Plan became effective (the "Effective Date"). Pursuant to the Plan, as of the Effective Date, the Liquidating Trust was formed and became responsible for resolving all disputed claims, pursuing or otherwise litigating any causes of action filed against the Debtors, and making all distributions provided for under the Plan. Under the terms of the Plan, all of the value of the Debtors' estates was distributed to holders of administrative and priority tax claims. Holders of general unsecured claims are not entitled to any distribution.2

II. The Claims Bar Dates

Several claim bar dates were set by the Court in the Debtors' cases. On July 15, 2009, the Court entered an Order ("Prepetition Claims Bar Date Order") establishing September 30, 2009 ("Prepetition Claims Bar Date") as the deadline to file prepetition non-governmental claims against the Debtors' estates.3 Subsequently, on November 24, 2009, the Court entered an Order ("Administrative Claims Bar Date Order") establishing January 8, 2010 ("Administrative Claims Bar Date" and together with the Prepetition Claims Bar Date, the "Bar Dates") as the deadline to file administrative claims that had arisen from the Petition Date through November 6, 2009 against the Debtors' estates.4

Both the Prepetition Bar Date Order and the Administrative Claims Bar Date Order provided that actual notice be served on all "known" holders of claims, and that publication notice also be made. According to affidavits of service filed by the Debtors, Plaintiff was not served with notice of either bar date.5 Moreover, an affidavit of publication reflects that publication notice was made for the Prepetition Bar Date, however no such affidavit was filed regarding the Administrative Claims Bar Date.6

The Plaintiff did not file any proofs of claim in the Debtors' cases.

III. The Adversary Proceeding

On September 27, 2012, the Plaintiff initiated the above-captioned adversary proceeding. The Plaintiff's allegations premised on the (alleged) misappropriation by the Defendant of Plaintiff's design and invention of the "Iqraa Front-Backpack."

The Plaintiff asserts that in 2002, in order to provide a relief from the burden of heavy books carried by grammar school and high school aged students, and its resulting pack pain, Plaintiff invented the "Iqraa Front-Backpack."7 For the next year or so, Plaintiff sold the Iqraa Front-Backpack through door-to-door sales, and then later out of various retail locations. Although Plaintiff applied for patent protection for his design in April 2004, Plaintiff concedes that he never obtained a patent. In December 2004, Plaintiff noticed a STMG vendor wearing a "ragged vest very much unlike [the] Iqraa front-backpack." Plaintiff invited the vendor to his store and showed him the Iqraa Front-Backpack and gave the vendor a sample and information for the vendor to give to his STMG supervisors. The next day, Plaintiff met the same STMG vendor, who allegedly told Plaintiff that his boss took the Iqraa Front-Backpack from him and told him never to wear it again. Then, in or about October 2008, Plaintiff discovered that STMG vendors were wearing packs resembling the design of the Iqraa Front-Backpack to sell and advertise newspapers which is the crux of this adversary proceeding.

IV. Other Actions by Plaintiff Against Defendant

The Court is aware of two additional lawsuits Plaintiff has brought against Defendant.8 First, on February 9, 2009, prior to the Petition Date, Plaintiff sued Defendant in the Circuit Court of Cook County Law Division.9 That case was later stayed by the Debtors' bankruptcy. It is unclear from the docket in that case whether the Defendant was served with Plaintiff's complaint. Second, in or around June, 2010, after the Petition Date, Plaintiff again sued Defendant, this time in the United States District Court for the Northern District of Illinois.10 The judge in that case, by court order, declined to move forward because of the automatic stay.

V. Defendant's Motion to Dismiss

On November 16, 2012, the Liquidating Trust filed a motion to dismiss Plaintiff's complaint. The Liquidating Trust moved to dismiss these claims because: (1) Plaintiff failed to file a timely proof of claim bars the claims in the complaint; (2) Plaintiff's complaint does not allege sufficient facts to state claims upon which relief may be granted; and (3) Plaintiff failed to serve Defendant with the adversary complaint.

DISCUSSION

I. Motion to Dismiss the Complaint Pursuant to Rule 12(b)(6)

A. Rule 12(b)(6) Standard

Rule 12(b)(6) governs a motion to dismiss for failure to state a claim upon which relief can be granted.11 When reviewing a motion to dismiss, the movant carries the burden of demonstrating that dismissal is appropriate.12 The relevant record to consider consists of the complaint and any document "integral or explicitly relied on in the complaint."13

To survive a Rule 12(b)(6) motion to dismiss, the factual allegations in the complaint must "state a claim to relief that is plausible on its face."14 This plausibility standard requires a plaintiff to demonstrate "more than a sheer possibility that a defendant has acted unlawfully."15 The Third Circuit Court of Appeals has outlined a two-part analysis to determine the sufficiency of a complaint under Twombly and Iqbal:

The Third Circuit has further instructed that "[s]ome claims will demand relatively more actual detail to satisfy this standard, while others require less."17

B. Effect of Bar Dates on the Claims Asserted in Plaintiff's Complaint

As stated above, the Defendant argues that the claims asserted in Plaintiff's complaint are time barred. The Plaintiff claims that he did not receive notice of the Bar Dates.

In In re Grossman's Inc.,18 the Third Circuit held that a "claim" arises when "an individual is exposed pre-petition to ... conduct giving rise to an injury, which underlies a `right to payment' under the Bankruptcy Code."19 The Grossman's Court recognized that the test to determine whether a claim is subject to a claims' bar date must also be reviewed in light of due process considerations.20 "Determining whether the discharge of claims satisfies due process includes an inquiry into the adequacy of notice of the claims bar date."21 The purpose and procedures for setting a claims bar date were discussed by Judge Gross in In re Smidth & Co.:

"For creditors who receive the required notice, the bar date is a drop-dead date that prevents a creditor from asserting [their applicable] claims unless [they] can demonstrate excusable neglect."23

A known creditor is one whose identity is either known or reasonably ascertainable by the debtor.24 An unknown creditor, on the other hand, is one whose interests are either conjectural or future or, although they could be discovered upon investigation, do not in the due course of business come to the knowledge of the debtors.25

Here, although the Plaintiff sued Defendant in 2009, prior to the Petition Date, it is not clear from the docket in that case whether the complaint was served on the Defendant. If the 2009 lawsuit was served on Defendant, and such service took place prior to the Prepetition Bar Date, then Plaintiff would have been a "known" creditor and the publication notice he received would not have been sufficient. On the other hand, if the 2009 lawsuit was not served on Defendant, or if service was made, but not before the Prepetition Bar Date, then Plaintiff would have been an unknown creditor and the publication notice he received would have been adequate. The same analysis applies to the Administrative Claims Bar Date; however, it is not clear whether publication notice was made as no affidavit of publication related to the Administrative Claims Bar Date was filed with the Court.

As a result, the Court finds that there are insufficient facts to determine whether the Plaintiff was a known creditor, and thus, the Court is unable to determine whether Plaintiff received adequate notice of the Bar Dates. Without evidence, due process requires that the Court not time bar the Plaintiff's claims. As such, the Court denies the motion to dismiss, without prejudice, for failure of the Plaintiff to file a proof of claim.26

C. Sufficiency of Plaintiff's Allegations in the Complaint

The Defendant also asserts that Plaintiff's allegations are not plausible and, as a result, the complaint fails to state claims upon which relief may be granted.27 The Court has accepted, for the purposes of this motion, that the factual allegations in the complaint are true and has construed the complaint in the light most favorable to the Plaintiff;28 however, the Court cannot consider (for purposes of this motion) any bald assertions and legal conclusions alleged by the Plaintiff.29 As set forth in more detail below, the Court finds that the Plaintiff's claims are not plausible.

i. The Federal Copyright Infringement Claim

The Plaintiff alleges that the design of the Iqraa Front-Backpack was subject to copyright protection which the Defendant violated by having similar front-backpacks. In order to state a claim for copyright infringement, the plaintiff must show: (1) ownership of a valid copyright, and (2) actionable copying.30 One can only own a valid copyright in works of authorship, which include works that are literary, musical, dramatic, pantomime, choreographic, pictoral, graphic, sculptural, motion picture, audiovisual, sound, and architectural.31 Useful articles, meaning articles that have an intrinsic utilitarian function, and the designs thereof, are not considered works of authorship except and only to the extent that such design incorporates pictoral, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.32

For example, in Galiano v. Harrah's Operating Co., Inc.,33 the plaintiff asserted a copyright on uniforms she designed. The Fifth Circuit adopted the "likelihood of marketability" test, holding that "conceptual separability exists where there is substantial likelihood that even if the article had no utilitarian use it would still be marketable to some significant segment of the community simply because of its aesthetic qualities."34 The court distinguished extravagant designs that might also have utilitarian qualities — such that they could be marketed as art rather than as clothing — and held that the plaintiff's uniforms, although creative, could not demonstrate such.35

Here, nothing in Plaintiff's complaint suggests that the Iqraa Front-Backpack is anything but purely utilitarian in nature — the Plaintiff has not asserted that the Iqraa Front-Backpack is capable of existing independently of its utilitarian function of carrying items. As such, the design of the Iqraa Front-Backpack is not a work of authorship in which Plaintiff can own a valid copyright. Furthermore, Plaintiff has not alleged that he owns a valid copyright in the design of the Iqraa Front-Backpack, and as a result, the Plaintiff's copyright claim is not plausible and will be dismissed.36

ii. The Federal Patent Infringement Claim

The Plaintiff also alleges that the Defendant infringed his patent in the Iqraa Front-Backpack. However, the Plaintiff, by his own concession, does not hold a patent for the Iqraa Front-Backpack.37 "Standing to sue for infringement generally rests with the legal title holder to the patent."38 Failure to hold a patent is fatal to a patent infringement cause of action.39 As such, the Plaintiff has not alleged a plausible patent infringement claim and the Court will dismiss this claim.

iii. The Federal Unfair Competition Claim

Next, the Plaintiff alleges unfair competition pursuant to Section 43(a) of the Lanham Act.40 To state a claim under Section 43(a) of the Lanham Act:

"Congress' purpose in enacting § 43(a) was to create a special and limited unfair competition remedy...."42

Here, the Plaintiff has not alleged factual allegations to support the requisite elements set forth above. Moreover, Defendant's business was selling information via newspapers and the Internet not the business of selling backpacks; as a result, the Defendants' business never competed, fairly or unfairly, with the Plaintiff's business. The Plaintiff has not pled a plausible claim for unfair competition and the Court will dismiss this claim.

iv. The Trade Secret Misappropriation Claim

The Plaintiff alleges that the Iqraa Front-Backpack is a trade secret that the Defendant misappropriated. In Illinois, where the alleged misappropriation took place, trade secret misappropriation is governed by the Illinois Trade Secrets Act, 765 ILCS 1065/1, et seq. ("ITSA"). In order to state a claim for trade secret misappropriation under ITSA "a plaintiff must allege facts that the information at issue was: (1) a trade secret; (2) misappropriated; and (3) used in the defendant's business."43 Trade secrets are defined by the ITSA as information that (1) derives economic value from not being known to the public, and (2) is the subject of reasonable efforts to maintain its secrecy.44

Here, Plaintiff has not alleged that his design was kept confidential or secret — in fact, the Plaintiff states that he sold in excess of 1000 of these backpacks and his design was featured in various newspaper articles.45 Furthermore, the backpack design is readily ascertainable simply by viewing and studying the product itself. Moreover, by applying for patent protection and effectively publishing the design, Plaintiff is precluded from plausibly claiming that the design was secret or the subject of reasonable efforts to maintain its secrecy.46 As such, the Plaintiff has not asserted a plausible claim for trade secret misappropriation and this claim will also be dismissed.

v. The Unjust Enrichment Claim

The Plaintiff has also asserted that the Defendant has failed to remit any profits realized from the use of this backpack "to facilitate and increase the circulation of daily newspapers" to the Plaintiff and, as a result, the Defendant is unjustly enriched. Unjust enrichment is a quasi-contract theory that

Here, there is nothing in Plaintiff's complaint that shows Defendant received a benefit or retained a benefit to the Plaintiff's detriment. The assertions that Defendant may have profited in some way through implementation of front backpacks in its business are mere bald assertions that are not supported by any well pled facts found in the complaint. Moreover, nowhere in Plaintiff's complaint is there a plausible indication that fundamental principles of justice, equity and good conscience have been violated. As such, the Plaintiff has not asserted a plausible claim for unjust enrichment and this claim will be dismissed.

vi. The Remaining Common Law Claims

Plaintiff asserts throughout his complaint that he is entitled to relief based on common law causes of action. The Court finds that Plaintiff has failed to allege plausible common law causes of action, because such claims are, under these circumstances, preempted by federal copyright laws, federal patent laws and/or the ITSA.48

II. Motion to Dismiss the Complaint Pursuant to Rule 12(b)(5)

The Defendant also argues that the complaint should be dismissed pursuant to Rule 12(b)(5) because the Plaintiff failed to serve the complaint on the Defendant. Rule 12(b)(5) provides that a defendant may move to dismiss a complaint when a plaintiff fails to properly serve the defendant.49 Federal Rule of Civil Procedure 4(m) states that if service of the summons and complaint is not made upon a defendant within 120 days after the filing of the complaint, the court, upon motion or on its own initiative after notice to the plaintiff, shall dismiss the action.50 The Rule continues that if the plaintiff shows good cause for the failure, the court must extend the time for service for an appropriate period.51

As the Court has already concluded that Plaintiff's complaint should be dismissed for failure to state claims upon which relief may be granted, the Court finds it unnecessary to rule pursuant to Rule 12(b)(5). As a result, the Court denies the motion to dismiss, without prejudice.

CONCLUSION

The Court will deny, in part, and grant, in part, the Defendant's motion to dismiss. The Court will deny the motion, without prejudice, on the asserted basis (1) that the Plaintiff's claims are time barred by the Bar Dates, and (2) that the complaint was not served upon the Defendant. The Court will grant the motion and dismiss the complaint with prejudice for failure to allege plausible causes of action against the Defendant. An order will be issued.