In the

United States Court of Appeals

For the Seventh Circuit ____________

No. 06-3082

VERONICA VINCENT,

Plaintiff-Appellant,

v.

CITY COLLEGES OF CHICAGO, EZEKIEL

MORRIS, and CHICAGO ASSOCIATION

OF REALTORS, INC.,

Defendants-Appellees.

____________

Appeal from the United States District Court for the

Northern District of Illinois, Eastern Division.

No. 04 C 7641—Harry D. Leinenweber, Judge.

____________

SUBMITTED MARCH 29, 2007—DECIDED APRIL 30, 2007

____________

Before EASTERBROOK, Chief Judge, and FLAUM and

EVANS, Circuit Judges.

EASTERBROOK, Chief Judge. Veronica Vincent wrote

Smart Foreclosure Buying and has registered her copyright in that work, which the Chicago Association of

REALTORS® published through its educational arm the

Real Estate Education Company. (The Real Estate Education Company has since been consolidated with the

Chicago REALTORS® Real Estate School; for simplicity

we use “the Association” to refer to the Chicago Association of REALTORS® and all of its affiliates.) The Associa-
2 No. 06-3082

tion promised to pay Vincent 15% of the book’s selling

price. Vincent used the book as the text in a class she

taught at the City Colleges of Chicago. The course title was

the same as the book’s.

In 1995 Vincent stopped teaching this class. The City

Colleges continued to offer a course with the same title,

taught by Ezekiel Morris—though a prospective student

might have thought that Vincent was the instructor, as

her initials appeared next to the course description in

the college catalog. In 2001 Vincent told the Association

by phone, fax, and letter to stop publishing her book.

The Association promptly stopped paying her royalties,

but it did not stop printing and selling copies of the

book. Vincent also asked the City Colleges to stop offering

any course using her book, or at least to cease using the

book’s title as the name of the course. When Vincent

discovered that the Association was continuing to print

the book for use not only in the college courses but also

in a self-directed educational program it offers for real

estate brokers, she demanded that the Association pay

her a portion of the revenue from these endeavors; it

refused but did remit several years’ back royalties.

According to Vincent’s complaint, from which this

narration has been drawn, the Association, the City

Colleges, and Morris have violated the federal copyright

and trademark laws. Vincent’s complaint named “Harold

Washington College” and “Wilbur Wright College” as

defendants, but these are just parts of the City Colleges’

operations. One could not sue Harvard College, as opposed

to the larger institution (Harvard University) of which

it is a component. Cf. Schiavone v. Fortune, 477 U.S. 21

(1986). But the City Colleges received the papers and

responded to the complaint, so we have reformed the

caption. (It is unclear whether the City Colleges or its

governing body the Board of Trustees of Community

College District No. 508 is the real party in interest;
No. 06-3082 3

nothing turns on the answer, so we do not pursue it.)

Vincent also named the City of Chicago as a defendant

but never served the City with process; it has been dismissed as a party, and that decision does not require

further discussion. Quite apart from the lack of service,

the City of Chicago has nothing to do with the events of

which Vincent complains.

The district court dismissed most of the complaint

under Fed. R. Civ. P. 12(b)(6). The complaint is fatally

deficient, the judge wrote, because it does not plead facts

that show an entitlement to relief. 2005 U.S. Dist. LEXIS

42963 (N.D. Ill. Apr. 6, 2005). The only well-pleaded claim,

the district court concluded, is Vincent’s contention that

the Association violated the copyright laws by printing copies of her book after she withdrew consent. With

respect to that claim, the district court later granted

summary judgment in the Association’s favor, ruling

that Vincent had failed to establish that the Association

received written notice of her decision. 2006 U.S. Dist.

LEXIS 44737 (N.D. Ill. June 15, 2006).

The district judge faulted Vincent for failing to demonstrate beyond peradventure that the Association had

received written notice. But why must notice be in writing?

The license to print the book was oral; an oral contract

may be modified or terminated orally. Nothing in the

Copyright Act requires all transactions to be written—if

it did, then the Association would not have had authority

to publish the book in the first place! Because there are no

distinctive federal rules for how parties reach contracts

concerning copyrights, see T.B. Harms Co. v. Eliscu, 339

F.2d 823 (2d Cir. 1964) (Friendly, J.), oral licenses and

oral terminations are valid to the extent allowed by

state statutes of frauds. The Association does not contend that an oral termination of an oral license is invalid

as a matter of Illinois contract law, which governs here.

And although the Association insists that one term of the
4 No. 06-3082

oral contract was that termination would be in writing,

that contention is itself contested.

A dispute about whether the Association received

written notice would preclude summary judgment even if

a writing were essential. Vincent provided evidence that

she mailed the Association a letter of termination. The

Association denies receiving this letter, which was sent

to its old offices: the Association had moved without

notifying Vincent. But the Postal Service forwards letters

for one year after a move and should have forwarded this

one. (The Association moved in September 2001; Vincent

maintains that she mailed her letter that December; the

Association does not contend that it failed to provide the

Postal Service with a forwarding address.) Vincent maintains that the letter did not come back to her, as it

should have done if the Postal Service could not deliver it.

Maybe the letter arrived but was misfiled, or maybe

someone at the Association threw it away because it did

not correspond to a written contract in the Association’s

files.

Evidence of mailing is evidence of delivery. See Hagner

v. United States, 285 U.S. 427 (1932); Henderson v.

Carbondale Coal & Coke Co., 140 U.S. 25 (1891). Although

almost any evidence may be refuted, the trier of fact

determines whether the presumption of delivery has been

overcome. Certainly a jury could infer that the Association

received some notice; why else did it stop remitting

royalties? If the Association were utterly in the dark, as

it purports to have been, then it would have continued

paying Vincent.

That’s not all. Vincent testified by deposition that she

sent the Association a termination notice by fax. The

Association asserts that its old fax machine had been

disconnected as part of the move, but that just sets up

another factual dispute. Vincent testified that the fax

went through (senders can tell the difference between
No. 06-3082 5

reaching a fax machine and reaching a disconnected line).

Fax and phone numbers usually are changed at the same

time, or not at all, when a business moves. A new machine

at the old number would have received the fax. The

Association kept its old numbers for voice lines (the move

of about five city blocks did not affect the area code), and

Vincent was able to leave a termination message on its

voice-mail system; a trier of fact could conclude that the

fax number carried over too. Proof from the phone company’s records that the fax number was out of service

could be deemed incontrovertible, but all the Association

offered was its say-so.

Summary judgment on the copyright claim was proper,

however, with respect to Morris and the City Colleges.

Vincent appears to believe that a copyright entitles the

author to determine how a work is used and thus to

prevent the book’s adoption as a teaching text. Not at all.

An author has the exclusive right to control copying, but

once a given copy has been sold its owner may do with it

as he pleases (provided that he does not create another

copy or a derivative work). See Quality King Distributors,

Inc. v. L’anza Research International, Inc., 523 U.S. 135

(1998) (discussing 17 U.S.C. §109(a) and the first-sale

doctrine). When Smart Foreclosure Buying is out of print,

students may read it in the library or buy used copies from

those who took the class in earlier years. Authors capitalize on the durability of the printed word not by charging

for each extra person’s use but by setting a price for new

copies that reflects the work’s value to multiple readers.

See Stanley M. Besen & Sheila N. Kirby, Private Copying,

Appropriability & Optimal Copyright Royalties, 32 J.L. &

Econ. 255 (1989).

As for the rest of the case: a judicial order dismissing

a complaint because the plaintiff did not plead facts has

a short half-life. “Any decision declaring ‘this complaint

is deficient because it does not allege X’ is a candidate for
6 No. 06-3082

summary reversal, unless X is on the list in Fed. R. Civ. P.

9(b).” Kolupa v. Roselle Park District, 438 F.3d 713, 715

(7th Cir. 2006). Civil Rule 8 calls for a short and plain

statement; the plaintiff pleads claims, not facts or legal

theories. See Bartholet v. Reishauer A.G. (Zürich), 953

F.2d 1073, 1077-78 (7th Cir. 1992). Factual detail comes

later—perhaps in response to a motion for a more definite

statement, see Fed. R. Civ. P. 12(e), perhaps in response

to a motion for summary judgment. Until then, the

possibility that facts to be adduced later, and consistent

with the complaint, could prove the claim, is enough for

the litigation to move forward. See Swierkiewicz v. Sorema

N.A., 534 U.S. 506 (2002); Hishon v. King & Spalding,

467 U.S. 69 (1984).

Facts that substantiate the claim ultimately must be

put into evidence, but the rule “plaintiff needs to prove

Fact Y” does not imply “plaintiff must allege Fact Y at the

outset.” That’s the difference between fact pleading

(which the courts of Illinois use) and claim pleading under

Rule 8. See, e.g., Christensen v. Boone County, No. 04-4162

(7th Cir. Mar. 21, 2007), slip op. 18-19; Hefferman v. Bass,

467 F.3d 596, 599 (7th Cir. 2006); Simpson v. Nickel,

450 F.3d 303, 305-06 (7th Cir. 2006); AXA Corporate

Solutions v. Underwriters Reinsurance Corp., 347 F.3d 272,

277 (7th Cir. 2003); Hoskins v. Poelstra, 320 F.3d 761, 764

(7th Cir. 2003).

Rule 8 was adopted in 1938, and Conley v. Gibson, 355

U.S. 41 (1957), stressed that it does not require fact

pleading. It is disappointing to see a federal district judge

dismiss a complaint for failure to adhere to a fact-pleading

model that federal practice abrogated almost 70 years ago.

As citations in the preceding paragraphs show, however,

this is among many similar dispositions that the Supreme Court and this court have encountered recently
No. 06-3082 7

† This court has issued at least 12 opinions or orders during the

last year alone reversing decisions that had dismissed complaints

for failure to plead facts. Christensen v. Boone County, 2007 U.S.

App. LEXIS 6451 *27-29 (7th Cir. Mar. 21, 2007); Miller v. Fisher,

2007 U.S. App. LEXIS 5982 (7th Cir. Mar. 12, 2007) (nonprecedential disposition); Edwards v. Snyder, 478 F.3d 827 (7th Cir. 2007);

Thomas v. Kalu, 2007 U.S. App. LEXIS 4280 (7th Cir. Feb. 27,

2007) (nonprecedential disposition); Argonaut Insurance Co. v.

Broadspire Services, Inc., 2006 U.S. App. LEXIS 31209 (7th Cir.

Dec. 18, 2006) (unpublished order); Tompkins v. The Women’s

Community, Inc., 203 Fed. Appx. 743 (7th Cir. 2006) (unpublished order); McCann v. Neilsen, 466 F.3d 619 (7th Cir. 2006);

Hefferman v. Bass, 467 F.3d 596 (7th Cir. 2006); Pratt v. Tarr,

464 F.3d 730 (7th Cir. 2006); Floyd v. Aden, 184 Fed. Appx. 575

(7th Cir. 2006) (unpublished order); Simpson v. Nickel, 450 F.3d

303 (7th Cir. 2006); Marshall v. Knight, 445 F.3d 965 (7th Cir.

2006).

and been obliged to reverse.† Although we appreciate

the pressure that a heavy flux of litigation creates, and

the temptation to get rid at the earliest opportunity of

claims that do not seem likely to pan out, Rule 12(b)(6)

does not serve this function. Sometimes a feeble complaint may be dismissed on the pleadings under Rule 12(c),

and judges should remember that it is possible to grant

summary judgment under Rule 56 in advance of discovery. Dismissal under Rule 12(b)(6) is reserved for

complaints that do not state legally cognizable claims,

including the situation in which the plaintiff pleads

himself out of court by making allegations sufficient to

defeat the suit. But Vincent did not plead too much, to her

own detriment, nor did she omit anything on the list in

Rule 9(b).

“Any district judge (for that matter, any defendant)

tempted to write ‘this complaint is deficient because it

does not contain. . .’ should stop and think: What rule

of law requires a complaint to contain that allegation?”
8 No. 06-3082

Doe v. Smith, 429 F.3d 706, 708 (7th Cir. 2005) (emphasis

in original). That question should have been asked in this

case but wasn’t. Take, for example, Vincent’s contention

that “Smart Foreclosure Buying” is a service mark, so that

only she may teach a course under that banner. The

district judge found the complaint defective because it

“failed to state [Vincent’s] registered U.S. Patent and

Trademark number or provide any [similar] information”.

What rule requires that information to be in a complaint?

None that we know of. If registration is essential to

prevail, then Vincent must prove it eventually, but it

need not be alleged; only the claim—which is to say,

enough to alert the defendant to the nature of the

grievance—need be pleaded.

What’s more, trade and service marks are protected

whether or not they are registered. See Wal-Mart Stores,

Inc. v. Samara Bros., Inc., 529 U.S. 205, 209 (2000); Two

Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768 (1992).

Because the phrase “Smart Foreclosure Buying” is descriptive, it cannot be protected under trademark law without

proof that consumers associate its use with the plaintiff’s

product. In trademark parlance, this is called “secondary

meaning.” See, e.g., Custom Vehicles, Inc. v. Forest River,

Inc., 476 F.3d 481 (7th Cir. 2007) (discussing authority).

See also, e.g., Herbko International, Inc. v. Kappa Books,

Inc., 308 F.3d 1156, 1162 n.2 (Fed. Cir. 2002) (applying

this approach to a book title that was said to do double

duty as a service mark for a product related to the book).

Defendants do not contend that they, rather than Vincent,

own the intellectual property in the phrase “Smart Foreclosure Buying” as applied to a course of instruction.

The chance that Vincent will succeed in establishing

secondary meaning may be slim, but her complaint does

not concede the point or demonstrate that proof is impossible, and the pleading therefore cannot be dismissed

under Rule 12(b)(6).
No. 06-3082 9

Vincent’s remaining claims stem from the initials “V.V.”

that the City Colleges continued to append to the course

description after Vincent was no longer the instructor. She

characterizes this as false advertising, fraud, a deceptive

business practice, and other state-law theories. Because

each of these theories entails deceit, there is at least some

potential for invoking the specificity requirement of Fed.

R. Civ. P. 9(b). Neither the district court nor defendants

relies on that rule, however, likely because the complaint

alleges precisely the statement—the use of plaintiff’s

initials—that is asserted to be false, and the exact

reason—that no one answering to the initials “V.V.” taught

the class after plaintiff stopped doing so—why the statement was false. The complaint does not go into detail

about the intent with which the defendants applied these

initials, but Rule 9(b) provides that states of mind may

be alleged generally. The complaint is sufficient.

None of the defendants maintains that students are the

only persons injured by this falsehood. Just about all the

defendants say in this court is that one particular theory,

which relies on the Illinois version of the Uniform Deceptive Trade Practices Act, 815 ILCS 510/2, is no longer

tenable because that statute authorizes only prospective

relief, and none of the defendants today offers or teaches

a class under the name “Smart Foreclosure Buying” or the

initials “V.V.” This must be an argument that a claim for

prospective relief is moot, although the defendants do not

use that word. No matter what the argument is called,

however, it is not a sufficient reason to dismiss the

complaint. Voluntary cessation of unlawful activity does

not moot every request for prospective relief; the court

must decide whether the complained-of conduct may be

resumed. See United States v. W.T. Grant Co., 345 U.S.

629 (1953); United States v. Raymond, 228 F.3d 804, 813-

15 (7th Cir. 2000). It is not possible to determine on the

complaint’s allegations whether recurrence is sufficiently
10 No. 06-3082

likely to justify prospective relief. Vincent’s other state-law

theories, which could lead to damages, would survive

even if the court ultimately concludes that recurrence is

very unlikely. (Defendants also maintain that the complaint is deficient because Vincent did not attach copies

of the college catalog with the “V.V.” initials, but this is

a demand that complaints prove, as well as allege, facts;

that confuses Rule 12(b)(6) with Rule 56.)

The order dismissing the City of Chicago for lack of

service (and thus absence of personal jurisdiction) is

affirmed. The judgment with respect to the other defendants is affirmed to the extent that Morris and the City

Colleges prevailed on the copyright claim. The remainder

of the judgment is reversed, and the case is remanded

for proceedings consistent with this opinion.

A true Copy:

Teste: 

 ________________________________

Clerk of the United States Court of

Appeals for the Seventh Circuit 

USCA-02-C-0072—4-30-07