author: Mr. PRESIDING JUSTICE DRUCKER

text:
    Edgewater Beach Apartments Corporation, Plaintiff-Appellee, v. Edgewater Beach Management Co., Inc., et al., Defendants-Appellants.
    (Nos. 58261-58375;
    First District (5th Division)
    June 22, 1973.

      Rehearing denied July 23, 1973.

      Torshen, Cohen & Eiger, Ltd., of Chicago, (Jerome H. Torshen and Robert A. Skirnick, of counsel,) for appellants.
    Springer & Casey, of Chicago, (Donald E. Casey, Gary E. Dienstag, and Barton J. Springer, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE DRUCKER

delivered the opinion of the court:

Defendants bring this interlocutory appeal from an order granting plaintiff a preliminary injunction prohibiting defendants from using the word “Beach” in close connection with the word “Edgewater” in conjunction with the sale, rental or advertisement of apartments.

On appeal defendants contend that plaintiff was not entitled to preliminary relief (as was granted) under either the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1971, ch. 121%, par. 313) or the Illinois Trademark Act (Ill. Rev. Stat. 1971, ch. 140, par. 22) the latter of which has been referred to as the “Anti-Dilution Statute.”

An evidentiary hearing was held prior to the issuance of the preliminary injunction wherein the following facts were elicited: Plaintiff is an Illinois corporation which has operated a cooperative apartment building called “Edgewater Beach Apartments” since 1949. The building is located at 5555 North Sheridan Road in Chicago. Defendants are developers of an apartment complex on property once occupied by the Edgewater Beach Hotel. The complex is located to the immediate south of plaintiffs building.

The Edgewater Beach Hotel was built in 1916. At the time it was 20 feet from Lake Michigan and had a private beach. Ownership of the hotel was transferred in 1950 and again in the 1960s when it was sold to the H. R. Weissberg Corporation (Weissberg). Weissberg operated the hotel until 1967 when it underwent reorganization in proceedings in the Federal District Court. The defendants purchased all the real estate owned by Weissberg prior to and during the reorganization proceedings. In addition they purchased from the. trustee of Weissberg the following:

“* * # all the rights, title and interest # * * [held by the Trustee] in and to the good will relating to the operation of the Edgewater Beach Hotel including but not limited thereto, the use of the name “Edgewater Beach Hotel” and any and all trade names, * * *, either registered or unregistered, which have related to the operation of said Edgewater Beach Hotel.”

While the Edgewater Beach Hotel was operating it was referred to as “The Edgewater Beach.” It had both transient and permanent guests both of whom were entitled to use the hotel swimming pool,. tennis courts and other related activities.

In 1928 the original owners of the hotel built a luxury type apartment building which is now owned by plaintiff. It was called “The Edgewater Beach Apartments.” Occupancy was on a rental basis. Plaintiff corporation was formed in 1949 and has operated the “Edgewater Beach Apartments” since that time. The building contains 309 apartments. In. order for one to lease an apartment he must be a shareholder in the cooperative which runs the building. Plaintiff advertises under the name “Edge-water Beach Apartments” in newspapers and printed brochures. There are commercial tenants who are not members of the cooperative who occupy stores on the ground floor. They use the name “Edgewater Beach Apartments” in designating their trade or business. There is a staff of about 80 persons to maintain and operate the building. A prospective tenant (and thus a prospective shareholder in the cooperative) must fill out an application and credit information sheet and these are turned over to a screening committee for approval. If the prospective seller and buyer agree on a price and the committee approves the application, the old shares are transferred by the seller to the cooperative and new shares are issued to the buyer.

George Kemp, president of the realty firm which operates plaintiff’s building, testified that the general public forms a “nomenclatúre” with respect to Chicago buildings; that plaintiff’s building, like other prestigious buildings in the area, has come to be known by its name rather than its address; that the name "Edgewater Beach Apartments” has acquired distinctiveness in the real estate community of Chicago and nationally as well.

In 1971, after reorganization of Weissberg, defendants began the construction of an apartment complex immediately to the south of plaintiff (on the site of the old hotel). The first apartment building constructed was named “Edgewater Plaza.” The second building was named “Edge-water Beach” or “5445 Edgewater Beach.” The local media has referred to the complex as the “Edgewater Beach Apartments.” All prospective tenants must fill out application forms and undergo a credit check in some instances before a lease is issued. Defendants plan the construction of more apartment buildings and commercial space. A hotel will not be constructed. The complex is bounded in part by a private street called “North Edgewater Beach Drive” which was constructed by defendants after the reorganization proceedings.

Little confusion existed between plaintiff’s apartment building and defendants’ complex until defendants’ second apartment building called “Edgewater Beach” or “5445 Edgewater Beach” was built: Since that time plaintiff’s witnesses stated that its building has been “flooded” with telephone calls and complaints properly directed to defendants’ building. Prospective tenants of defendants are calling plaintiff’s switchboard to rent apartments. Furniture movers have been confused as to the proper building to make deliveries. Newspaper articles relating to defendants’ complex have referred to it as “The Edgewater Beach Apartments.” No vacancies in plaintiff’s building have occurred since the partial construction of defendants’ complex, and over the years the share value of stock held by members of the cooperative has risen.

There was evidence submitted as to whether the nahie “Edgewater Beach” was descriptive of a geographical location. Defendant introduced into evidence two Rand-McNally maps (dated 1938 and 1947) both of which had the words “Edgewater Beach” printed at the relevant location. A Chicago Transit Authority “L” stop was called “Berwyn-Edgewater Beach” until 1971 when the words “Edgewater Beach” were deleted therefrom. Two witnesses for plaintiff, both in the real estate business, testified that the community wherein the buildings involved are situated is called “Uptown,” and the sub-community is called “Edgewater.” There is no sub-community called “Edgewater Beach.” There are only two beaches in the area, Foster Avenue Beach and Hollywood Beach. Between them (wherein the buildings lie) there is only “rock-piling.” Based on the foregoing facts the court made the following findings in granting preliminary relief to plaintiff:

“2. That Plaintiff’s use of the words ‘Edgewater Beach’ in conjunction with the ownership and operation of cooperative apartments occupied by its shareholders under proprietary leases is prior in time to the use by Defendants of the words ‘Edgewater Beach’ in conjunction with the sale, rental, or advertisement for sale or rental of apartments located in buildings owned, operated or managed by them; 6 *
3. That the use of the word ‘Beach’ by the Defendants in connection with its apartment development has created actual confusion as well as a likelihood of confusion between the buildings of Defendants and the building of Plaintiff and the corporate name of Plaintiff, and that there exists a likelihood of dilution of the distinctive quality of Plaintiff’s name and that Plaintiff’s name is distinctive and signifies the Plaintiff and its building.
4. That the words ‘Edgewater Beach’ are not geographically descriptive but rather that the properties of the Plaintiff and the Defendants are located in a community known as the Community of Uptown and within a Subcommunity of the Community of Uptown known as Edgewater and that such Community and Subcommunity have been so known for many years.
5. That unless Defendants are enjoined from using the word ‘Beach’ in close conjunction with or immediately following the word ‘Edgewater’ in the sale or rental of their apartments, Plaintiff will suffer irreparable harm.
6. That Plaintiff has established a fair probability that it will prevail at a trial on the merits, and that the status quo should be preserved until a final hearing on the merits.
7. That Defendants’ use of the words ‘Edgewater Beach’ is with full knowledge of Plaintiff’s prior use of these same words.”

Opinion

Plaintiff seeks relief under both section 2 of the Uniform Deceptive Trade Practices Act (Ill. Rev. Stat. 1971, ch. 121V2, pars. 312, 313) and section 15 of the Trademark Act (Ill. Rev. Stat. 1971, ch. 140, par. 22). The court below granted preliminary relief based on both statutes, and our task as a reviewing court is to determine whether it abused its discretion in doing so. People ex rel. Bolton v. Progressive General Insurance Co., 84 Ill.App.2d 109, 228 N.E.2d 146.

First we address the issues raised under the Uniform Deceptive Trade Practices Act. Section 2 thereof provides in relevant part:

“A person engages in a deceptive trade practice when, in the course of his business, vocation or occupation, he: * * *
(2) causes likelihood of confusion or of misunderstanding as to the source, sponsorship, approval or certification of goods or services;
(3) causes likelihood of confusion or of misunderstanding as to affiliation, connection or association with or certification by another;
# # #
(12) engages in any other conduct which similarly creates a likelihood of confusion or of misunderstanding.
In order to prevail in an action under this Act, a complainant need not prove competition between the parties of actual confusion or misunderstanding.”

Proof of monetary damage to plaintiff is unnecessary as is proof that defendant had the intent to deceive. Ill. Rev. Stat. 1971, ch. 121V2, par. 313.

Defendants raised two defenses to plaintiffs claim under the above statute in addition to contesting the issue that “likelihood of confusion or misunderstanding” is caused by its use of the name “Edgewater Beach” in connection with the rental of apartments. First, it contended that the term “Edgewater Beach” merely describes a geographic location and therefore is not entitled to trade name protection. The general rule as noted by defendant is that geographic names which designate a particular area or locality are regarded as common property and may not be exclusively appropriated as a trade name. (Elgin Butter Co. v. Creamery Co., 155 Ill. 127, 40 N.E. 616; C.J.S. Trademarks, § 43, p. 274.) In the instant case there was conflicting evidence as to whether the term “Edgewater Beach” was descriptive of the locale surrounding the subject apartment buildings. It is unnecessary to repeat the testimony which was set forth earlier. Resolution of the issue was a matter of considering conflicting evidence and therefore one best determined by the trier of fact. Its decision was not against the manifest weight of the evidence. We think it relevant to note that the beach once near defendants’ property has not been in existence for a lengthy period of time and that the Edgewater Beach Hotel has now been defunct for about six years. The passage of time, may cause a name which was once geographically descriptive to no longer be so. (See Callman, Unfair Competition, § 72, p. 198 (3d ed.).) Having affirmed the trial court’s conclusion that “Edgewater Beach” is not geographically descriptive, it is evident that plaintiff’s trade name is an “arbitrary” one and deserving of protection. See Tisch Hotels, Inc. v. Americana Inn, Inc., 350 F.2d 609, 611 (7th Cir. 1965).

In view of the position taken above it is unnecessary to discuss the propriety of the court’s finding (number three) that the name “Edge-water Beach” has acquired distinction and has come to signify plaintiff’s building, i.e., that it has secondary meaning.

The second defense interposed by defendants is that they acquired the right to use the name “Edgewater Beach” in connection with the rental of apartments through the purchase of such alleged right from the trustee appointed during the reorganization of the H. R. Weissberg Corporation (defendants’ predecessor in title to the subject property).

The bill of sale from the trustee provides that the purchaser was to receive in relevant part:

* * all of the rights, title and interest of the party of the first part, as Trustee, in and to the good will relating to the operation of the Edgewater Beach Hotel including, but not limited thereto, the use of the name Edgewater Beach Hotel’ and any and all trade names, trade styles, either registered or unregistered, which have related to the operation of said Edgewater Beach Hotel.”

On its face, the above document gives the defendants only the right to use the name “Edgewater Beach” in connection with any hotel or hotel related activities, which they do not claim to be doing, and not in .connection with the operation of an apartment building. Moreover, the legality of the use of the trade name “Edgewater Beach” by defendants in connection with an apartment building seems questionable in light of the general rule that “any assignment of a trademark and its goodwill (with or without tangibles or intangibles assigned) requires the mark itself be used by the assignee on a product having substantially the same characteristics.” Pepsico, Inc. v. Grapette Co., 416 F.2d 285, 288 (8th Cir. .1969) — assignee of trademark “peppy” for a cola drink barred from using the mark on a “pepper” flavored soft drink. Therefore defendants’ contention is without merit.

We now turn to the issue of whether there is sufficient evidence in the record to support the court’s finding that there is a likelihood of confusion between plaintiff’s and defendants’ apartment buildings due to the use of the name “Edgewater Beach” by defendants. The likelihood of confusion could be either as to the source or sponsorship of the apartment buildings (Ill. Rev. Stat. 1971, ch. 121V2, par. 312(2)) or as to affiliation, connection or association. Applied to the facts of this case the-former suggests a likelihood of confusion in that a prospective “customer” of plaintiff’s building will mistakenly be led to rent apartment space in defendants’ building. The latter suggests a likelihood of confusion in that it will appear that the two buildings are affiliated or connected in some way and that plaintiff’s reputation will thus no longer be in its own hands. See Tisch Hotels, Inc., at 612, citing Yale Electric Corp. v. Robertson, 26 F.2d 972, 973 (2d Cir. 1928).

Defendants argue that likehood of confusion as to source or sponsorship is highly unlikely where as here prospective purchasers of the “product” offered by each party will be highly discriminative (see Restatement of Torts, § 729(d); Charles F. Ryan & Son, Inc. v. Lancaster Homes, Inc., 22 A.D. 186, 254 N.Y.S.2d 473), and plaintiff’s building is operated as a cooperative whereas defendants’ is run under the conventional rental method. Accepting this as true, it still does not answer the problem that plaintiff faces as to the likelihood of confusion from the public believing that the two buildings are in some way affiliated or connected. This is especially true here in that the trade names used are substantially the same, i.e., plaintiff uses the name “Edge-water Beach Apartments” and defendant the name “Edgewater Beach” or “5445 Edgewater Beach” (although the building’s actual address is 5445 North Sheridan Road), the parties in substance deal in the same commodity (apartments) despite their difference in financial structures, and the buildings are on contiguous pieces of land. The actual confusion that has occurred in misguided telephone calls and deliveries, prospective tenants of defendants’ building calling on plaintiff, and among defendants’ own tenants, corroborates the likelihood of confusion among the general public. We thus feel that there was sufficient evidence presented to justify the issuance of a preliminary injunction.

Since further proceedings appear likely in this matter, we deem it appropriate to briefly comment upon plaintiffs claim to relief under the Anti-Dilution Statute. (Ill. Rev. Stat. 1971, ch. 140, par. 22.) The court found that “there is likelihood of dilution of the distinctive quality of plaintiffs name.” This language is taken directly from the statute.

The Anti-Dilution Statute provides protection for a strong trade name or trademark from deleterious effects of the use of a similar name or mark by another person when said person is not in competition with the holder and no likelihood of confusion will result from its usage. (See Polaroid Corp. v. Polaroid, Inc., 319 F.2d 830 (7th Cir. 1963).) Where traditional remedies under theories of unfair competition are available, relief under the statute should not be granted. (See Capitol Tie Rak, Inc. v. Tie Rack Stores of Illinois, 150 U.S.P.Q. 357, 360-361 (N.D. Ill. 1966); Derenberg, The Problem of Trademark Dilution and the Anti-Dilution Statutes, 44 Cal. L. Rev. 439, 448-463 (1956); Callman, Unfair Competition, § 84.2, pp. 953-958 (3d ed.).) In the instant case not only are the parties competitors with one another but there is, as we have held, a likelihood of confusion between them. Therefore, the Anti-Dilution Statute is inapplicable to the case.

The decision of the circuit court is affirmed.

Affirmed.

ENGLISH and SULLIVAN, JJ., concur.

      A geographically descriptive name will nevertheless be given trade name protection if it has a secondary meaning. See Elgin Nat’l Watch Co. v, Illinois Watch Co., 179 U.S. 665, 673-674; Pan American Realty Corp. v. Forest Park Manor, Inc., 160 U.S.P.Q. 346, 349 (Sup. Ct. Mo. 1968).

       The section provides in relevant part:
      “Every person, ** * * adopting and using a * * * trade name, * * * may proceed by suit, and all courts having jurisdiction thereof shall grant injunctions, to enjoin subsequent use by another of the same or any similar 9 9 9, trade name, 9 9 9 if there exists a likelihood of injury to business reputation or of dilution of the distinctive quality of the 9 9 9, trade name, 9 9 9, notwithstanding the absence of competition between the parties or of confusion as to the source of goods or services;


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Donald Dillard Brown, Defendant-Appellant.
    (No. 71-287;
    Fifth District
    June 29, 1973.
    Paul Bradley, of Defender Project, of Chicago, (Kenneth L. Jones, of counsel,) for appellant.
    WiHiam J. Scott, Attorney General, of Springfield, and Byron L. Con-nell, State’s Attorney, of Mound City, (Thomas J. Immel, Assistant Attorney General, of counsel,) for the People.
   PER CURIAM.


author: Mr. PRESIDING JUSTICE CRAVEN

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Bob G. Forbis, Defendant-Appellant.
    (No. 12012;
    Fourth District
    July 5, 1973.

      John F. McNichols, of Defender Project, of Springfield, (J. Daniel Stewart, Staff Attorney, of counsel,) for appellant.
    Basil G. Greanias, State’s Attorney, of Decatur, (Patrick M. Walsh, Assistant State’s Attorney, of counsel,) for the People.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

In a jury trial in 1968, defendant was found guilty of burglary. He was sentenced to a term of not less than 5 years nor more than 15 years in the penitentiary. Defendant was originally brought to trial in 1967, but on defendant’s motion a mistrial was declared, because in the People’s opening argument the jury was informed of defendant’s three previous convictions. The same appointed counsel represented defendant at each proceeding. Upon direct appeal from defendant’s conviction, this court affirmed. (109 Ill.App.2d 220, 248 N.E.2d 298.) The only issue raised on appeal was the prejudicial argument of the prosecutor.

In November 1970, and again in January 1971, defendant filed pro se a post-conviction petition. Upon the filing of the petition, the trial court appointed counsel other than the one representing defendant at trial. Counsel filed an amended petition asserting the following as grounds for relief:

1) that he had been subjected to double jeopardy because of a former mistrial on the same charge on which he was ultimately convicted;
2) that his prior conviction for burglary should not have been introduced to impeach his credibility at the second trial;
3) that he had been denied his right to the effective assistance of counsel at the trial since:
(a) counsel failed to raise the double jeopardy objection;
(b) counsel brought up a 1960 conviction over defendant’s objection;
(c) there was a conflict of interest since counsel represented an alleged accomplice, Joseph Brown, and
(d) counsel failed to attempt to establish an alibi in spite of defendant’s request that he do so;
4) that he was denied the effective assistance of counsel on appeal because of counsel’s failure to raise the constitutional questions alleged in the post-conviction petition.

The court dismissed the amended petition on the People’s motion and found that an evidentiary hearing was not required. This appeal is from that order.

The trial court found that the issues presented in the petition were waived and that the record did not support the claim of incompetency of counsel. Essentially, defendant contends that the trial court erred in finding waiver since the post-conviction petition alleged matters, dehors the record which could not have been raised on direct appeal. The issues raised on appeal are the same as those set out in defendant’s post-conviction petition.

When a direct appeal is taken from a conviction, the judgment of the reviewing court is res judicata as to all issues actually raised, and issues that could have been presented but were not are deemed waived. (People v. French, 46 Ill.2d 104, 262 N.E.2d 901, cert. denied, 400 U.S. 1024, 91 S.Ct. 590, 27 L.Ed.2d 636; People v. Gonzales, 9 Ill.App.3d 661, 292 N.E.2d 765.) However, this standard based upon waiver should be and has been relaxed in those cases where fundamental fairness requires such action. (People v. Hamby, 32 Ill.2d 291, 205 N.E.2d 456; People v. Sims, 4 Ill.App.3d 878, 282 N.E.2d 16.) The first three issues raised by defendant did not involve matters dehors the record and could have been raised on direct appeal. The issues do not present a situation in which the doctrine of fundamental fairness requires the relaxation of the waiver principle.

There is no merit in defendant’s contention that he was placed in double jeopardy in the second trial which followed the allowance of his motion for a mistrial as to the first proceeding. As the court stated in People v. Woodward, 394 Ill. 433, 69 N.E.2d 181, cert. denied, 329 U.S. 778, “defendant cannot, by his own act, avoid the jeopardy on which he stands and then assert it as a bar to subsequent jeopardy.” (P. 435.) (See also People v. Chaffin, 49 Ill.2d 356, 274 N.E.2d 68.) There is no indication in the record that the mistrial was caused by the prosecution to secure an unfair advantage. (United States v. Jorn, 400 U.S. 470, 91 S.Ct. 547, 27 L.Ed.2d 543; see also Illinois v. Somerville, 93 S.Ct. 1066, 35 L.Ed.2d 425.) This issue was not raised at the second trial nor was it raised on appeal. The granting of the new trial was a matter of record before the appellate court, and defendant’s failure to raise the issue on direct appeal waives any question which could have been presented at that time.

Defendant further alleged that his privilege against self-incrimination was violated because of the introduction of his 1960 conviction for burglary at his trial in 1968. Testimony concerning the prior conviction was elicited from defendant on direct examination by his counsel. It is a well-recognized rule that a defendant cannot on review object to testimony which he himself introduced. (People v. Sledge, 71 Ill.App. 2d 285, 218 N.E.2d 845.) No objection was made to this question. Furthermore, although defendant’s trial was before the decision of the Illinois Supreme Court in People v. Montgomery, 47 Ill.2d 510, 268 N.E.2d 695, the evidence of the prior conviction was within the provisions of Rule 609 as discussed in Montgomery. (People v. Petty, 3 Ill.App.3d 951, 279 N.E.2d 509.) Thus, defendant’s contention on this point is without merit.

Defendant asserts that he was denied the effective assistance of counsel at his second trial. It cannot be argued that counsel was incompetent for failure to raise issues which were without merit; thus, it cannot be argued that defendant was denied the effective assistance of counsel because of counsel’s failure to raise the issue of double jeopardy and because of the introduction of the prior burglary conviction. Defendant asserts that a conflict of interests existed because counsel represented at a prior trial an alleged accomplice of defendant. Regardless of whether any specific prejudice to defendant is shown, the existence of a conflict of interests between a defendant and a prosecution witness requires separate representation of these parties. (People v. Dolgin, 415 Ill. 434, 114 N.E.2d 389; 27 A.L.R.3d 1431, “Counsel-Representation of Witnesses”.) At defendant’s trial, Joseph Brown testified as to incriminating statements made by defendant. However, the situation is different from that in People v. Ware, 39 Ill.2d 66, 233 N.E.2d 421, cited by defendant. There, a co-defendant having pleaded guilty and not yet having been sentenced, testified against the defendant. Brown had already been tried and sentenced and had nothing to gain in testifying against the defendant. Thus, counsel was not in a “position of ambivalence” towards the defendant because of his continuing representation of Brown.

At the hearing on defendant’s motion for a new trial, the trial court considered defendant’s contention that counsel was incompetent because of his failure to call an alibi witness. Counsel informed the court that he had not been informed of the existence of such a witness prior to the conclusion of the second trial. The trial court indicated that counsel had been more than diligent in his representation of defendant. It is also a matter of record that defendant refused to give the name of the alleged. alibi witness to counsel who represented him on appeal. Counsel who represented defendant in the post-conviction proceeding was aware of the name of the alleged alibi witness. However, there is nothing in the record to indicate that the witness would have indeed provided an alibi on the night of the robbery for defendant. Thus, there is no merit in defendant’s contention. The issue has been waived for defendant’s failure to present it on direct appeal..

It has been held that the doctrine of waiver ought not bar issues from consideration under the Post-Conviction Hearing Act where the alleged waiver stems from the incompetency of appointed counsel on appeal. (People v. Frank, 48 Ill.2d 500, 272 N.E.2d 25.) Defendant acknowledges the fact that the incompetency of appellate counsel becomes an issue only if this court should disagree with defendant’s contention that matters in the post-conviction petition could not have been raised on appeal. The trial court found that there was nothing in the record to support defendant’s fourth contention “other than lack of success of the Petitioner; and nothing presented or contended in this hearing that warrants an evidentiary hearing as to said point.” We agree. There is nothing in the record to indicate that counsel did not ably prosecute the appeal or that he failed to present issues which should have been presented and which would have affected the disposition of the cause.

The judgment of the circuit court of Macon County is affirmed.

Judgment affirmed.

SMITH and TRAPP, JJ., concur..


author: Mr. JUSTICE SMITH

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Nathan N. Butler, Jr., Defendant-Appellant.
    (No. 11621;
    Fourth District
    July 5, 1973.

      John F. McNichols, of Defender Project, of Springfield, (Rruce L. Herr, Staff Attorney, of counsel,) for appellant.
    Lawrence E. Johnson, State’s Attorney, of Urbana, (Robert James Steigmann, Assistant State’s Attorney, and G. Douglas Grimes and Alex M. Abate, Senior Law Students, of counsel,) for the People.
   Mr. JUSTICE SMITH

delivered the opinion of the court:

Defendant was convicted of forgery and theft under $150, both crimes involving postal money orders. The principal point on appeal relates to the denial of the motion to suppress the money orders (other than the one which was allegedly forged) as evidence. Thirteen money orders were found in the glove compartment of an automobile which defendant was driving, and he argues that the search was neither incidental to his arrest nor was there probable cause for a non-incidental search of the vehicle later on. We agree with him that the search cannot be justified as one incident to his arrest, since it was not searched at the time (which is not to say that his arrest was not justified). Hence we take up the remaining aspect as to whether the search can otherwise be legally justified. A recital of the salient facts is in order.

Defendant’s version of events was that he borrowed a car, drove a friend to a shopping center, he going into a grocery store and the friend to a bank. He testified that when he came out, he saw another friend and offered him a ride. The first friend came running past the car, calling out that the police were after him, and continued his run. When the police appeared, defendant and friend No. 2 drove off and were stopped shortly thereafter by them and taken to the police station. The car at that time was not searched and remained where it had been stopped. More or less contemporaneously, the radio dispatcher for the police department received a telephone call from an unidentified woman at the bank where friend No. 1 had supposedly gone advising that a person was trying to cash a forged money order. While she was on the telephone such person left. She concluded her report to the dispatcher with the information that a red Volkswagen with a black right front fender and a given Illinois license plate was involved. The woman at the bank gave no physical description other than that the person involved was a Negro. The dispatcher thereupon broadcast this information over the police network. The broadcast was received by a police officer and upon seeing the described Volkswagen, stopped it. As we have seen, defendant and his companion were then taken to the police station but by other officers in a back-up car and their car remained where it was. The officer who had stopped the car then contacted headquarters and he and another officer later returned and searched the car finding 13 money orders between the pages of a book in the glove compartment. This second officer had previously on that very day investigated a theft of 22 postal money orders from a substation located in a food store. He also heard the dispatcher’s broadcast and the further intelligence that the car in which the defendant and friend No. 2 were riding had been stopped. He thereupon went to the police station and he and the other officer who had stopped the car then went to where it was parked and searched it. The president of the bank testified that a teller had reported to him that somebody was trying to cash a money order which had been reported as stolen and he followed this person out of the bank but lost him when he disappeared in a department store. Upon returning to the bank the president observed a Volkswagen with an occupant wearing a coat similar to that worn by the person he had followed. He noted the license number and gave it to the police who had arrived in the meantime. He was unable to identify the person in the bank with the occupant of the vehicle.

We view our opinion in People v. Powell, 9 Ill.App.3d 54, 291 N.E.2d 669, as controlling. If so, the search here can be justified on the basis that the searching officers had probable cause to believe that they would find in the car the instrumentalities of crime or evidence pertaining to a crime. Why did they have probable cause? We have these facts: (1) the searching officers had heard on their police radio that someone was attempting to pass a forged postal money order; (2) they had known of a theft of 22 postal money orders from personal investigation that morning and prior to hearing the radio dispatches; (3) they had intelligence to the effect that the suspect was in a described vehicle with a given license number; (4) defendant was found in the described vehicle; and (5) that defendant fitted the description given, such as it was. These facts, it seems to us, furnish probable cause that a search of the vehicle would disclose the stolen money orders or maybe the one someone had attempted to pass. The fact that the latter was not in the glove compartment has nothing to do with the question of whether or not here was pre-existing probable cause any more than finding it would have justified a search lacking probable cause. As we said in Powell, this is not building inference upon inference — each inference comes from facts that the officers had and in our opinion supplied the basis for them to have probable cause to believe that either the money order which was the subject of forgery, or the stolen money orders, or both, would be in the car, that is, that the vehicle contained the fruits of a burglary or evidence of an attempt to pass a forged instrument, or both. Justification for the search here, as in Powell, finds its authority in Chambers v. Maroney, 399 U.S. 42, 90 S.Ct. 1975, 26 L.Ed.2d 419. In that case, it was held that even though a search could not be justified as incident to an arrest, it could be justified on the basis of the existence of probable cause to search an automobile. The Supreme Court recognized that automobiles could be searched without a warrant in circumstances which would not justify a warrantless search of a house or an office — the so-called automobile exception — provided that there was probable cause to believe that the vehicle contained articles that the police were entitled to seize and there were exigent circumstances — that there was a constitutional difference between a search of a store or a house, and the search of an automobile, because an automobile could be quickly moved (an exigent circumstance), thus the search could be upheld on a theory wholly different from that justifying a search incident to an arrest. In Chambers, following a robbery, the police received a description of the car and the clothing worn of the four alleged to have been involved. The police stopped the described car with four men in the described clothing. Though arrested, the car was not searched — but rather driven to the police station. Then followed a warrantless search of the car which produced revolvers, ammunition, and property taken in the robbery. As we have seen, the court held that such search was constitutionally permissible under the automobile exception.

Defendant stresses that the dispatching officer knew no more than he had heard from an unidentified caller. Of course, this is true— but such fact, does not argue against his relaying such information over the police network and the searching officers relying on same — simply because he didn’t know whether the facts related to him were true or not. A citizen’s report of criminal activities to the police is not the same as that of an informer. And certainly what one officer knew and communicated to others furnishes facts on which probable cause can be based. As was said in People v. Peak, 29 Ill.2d 343, 349, 194 N.E.2d 322, 326:

“When the officers are working together * * * the knowledge of each is the knowledge of all and the arresting officer [has] the right to rely on the knowledge of the officer giving the command together with his own personal knowledge.”

To the same effect is United States v. Ventresca, 380 U.S. 102, 111, 13 L.Ed.2d 684, 690, 85 S.Ct. 741, 747 (1965), “Observations of fellow officers * * * engaged in a common investigation are plainly a reliable basis for a warrant applied for by one of their number”.

People v. Canaday, 49 Ill.2d 416, 275 N.E.2d 356, is very much in point. There the arresting officers in another county received radio intelligence of a burglary. The report was that there had been a burglary accompanied by the theft of some television sets and the vehicle used was described. The police who received the report next observed persons in a vehicle which matched the description of the car as radioed and ordered it pulled over to the side of the road where they observed some television sets partially covered by a blanket. The persons were placed under arrest and searched. So was the car, at least partially, as a revolver was found under the front seat. The car then was driven to the sheriff’s office and a subsequent search was had — with permission. About an hour after that, the trunk was searched and more television sets as well as two crowbars, a flashlight and some gloves were found. Defendants there moved to suppress the articles seized in this latter search. They argued that because the search was not substantially contemporaneous with the arrest and not in the immediate vicinity of the arrest, the search was bad. Citing there, as we do here, Chambers, our supreme court said:

“The court [in Chambers] held that the warrantless search of the car after it had been taken to the police station was not in violation of the fourth amendment. There was probable cause to arrest the occupants of the station wagon and just as obviously probable cause to search the car for guns and stolen money. Here, too, we consider there was probable cause to arrest the occupants of the vehicle and to search the car. The Supreme Court rejected the contention that the search without a warrant at the police station was improper.”

We conclude, as we have said, that the searching officers had probable cause, and if we are right, the search was justified. We can distinguish Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, urged here as controlling by defendants in the same manner the court did in Canaday:

“The Supreme Court recently, in Coolidge v. New Hampshire, 403 U.S. 443, 91 S.Ct. 2022, 29 L.Ed.2d 564, found warrantless searches of an auto to have been objectionable but under completely distinguishable circumstances. The court drew a distinction between Chambers, which corresponds to the case here, and the question in Coolidge. It said: ‘The rationale of Chambers is that given a justified initial intrusion, there is little difference between a search on the open highway and a later search at the station. Here, we deal with the prior question of whether the initial intrusion is justified. For this purpose, it seems abundantly clear that there is a significant constitutional difference between stopping, seizing, and searching a car on the open highway, and entering private property to seize and search an unoccupied, parked vehicle not then being used for any illegal purpose.’ ”

Defendant next argues that the theft charge was not proved beyond a reasonable doubt. This point requires an additional recital of the circumstances — as the crime was proved if at all by circumstances alone. Defendant likewise maintains that the charge of forgery lacked the requisite proof. We can consider both of these points together, as, proof as to each is, in our opinion, proof of the other — the circumstances intertwine.

We have these facts in addition to those already narrated. First, the circumstance of the theft of 22 money orders. Relating to the mode of proof of this fact, defendant argues that such was made or based solely on hearsay. But he made no objection to this hearsay proof at the trial, thus such point is waived — as only by objection “generally” can an issue of law be posited for review. Having been properly admitted its believability is for the jury. The stolen money orders were serially numbered, and the 13 that were found in the glove compartment matched up with their missing numbers taken in the theft. Unique, perhaps is the fact that the money order alluded to on the motion to suppress was not the subject matter of the forgery charge, but another money order that defendant successfully passed at another bank. This money order so passed by defendant also matched serially with one of the missing numbers of the 22 stolen money orders. Relating to the forgery charge, there was testimony that the postal money order was falsely made (Count I)— in the sense that it had not been properly stamped, signed and initialed, and then passed (Count II). Both counts read that the money order “purported to have been stamped and made by an agent of the U.S. Postal Department” and the proof was that it was not so “made”.

These • circumstances are not in dispute — in the sense that there was contrary evidence. They stand unrebutted — and no triers of the fact could so find them to be true. Defendant does not argue this — he simply says that these circumstances do not raise the type of inferences that will support the quantum of proof required to convict in criminal cases. Briefly put we have these facts: Defendant passes a falsely made and stolen money order; he is the driver of an automobile which has 13 of the stolen money orders in its glove compartment; and all of these circumstances occur on the same day following the theft — we say “following” because the money orders were not reported as stolen the day before but on the morning of the day in question. We think the inferences — as opposed to suspicions — that can be drawn from these circumstances are, (1) defendant knowingly obtained and exerted unauthorized control over 14 money orders, knowing them to have been stolen by another or under such circumstances as would reasonably induce him to so believe, with intent to permanently deprive the owner thereof, and (2) knowingly and with intent to defraud, possessed and passed a U.S. Postal Money Order, purporting to have been made by an agent of the U.S. Postal Department when in fact it was not. In other words, the jury was justified in finding defendant guilty of the theft just described and the variants of forgery just described. Accordingly, there was the requisite proof to support both charges.

The forgery charge came via indictment — two counts — possessing and passing. The theft charges were by information — eventually two counts. The first information failed to charge the crime of theft. The State’s attorney apparently recognizing this, requested leave to amend and when that was denied, filed a second information which did correctly charge the crime. The first information was not dismissed and a general verdict of guilty as to theft returned. Defendant argues that we should reverse the conviction as to the flawed information. We agree. This does not, however, affect the conviction of theft premised on the valid information.

The opening statement foretold of a witness’ testimony who did not appear. He was to be the president of the bank who took down the license number and otherwise described the Volkswagen on the hearing to suppress. The jury was advised that the president would tell them that “someone tried to cash a postal money order” and that the person dressed in the same fashion as the one presenting the money order left in the described Volkswagen. Of course, it is improper, at least with foreknowledge, to include matters in opening statement that are not thereafter proved. There is no suggestion here of impropriety and hence our discussion is limited as to whether or not this statement of. things to come was prejudicial. In our opinion, in its context, it was not. Part of the context was the opening statement itself, with the cautionary remark that, ‘Whatever I may say here is not evidence and I hope you will understand that * * *. So everything I say to you now is not evidence but is based upon the premise that we expect to prove these things.” There is no direct statement that the missing bank president would identify the defendant — but rather that “someone” who tried to cash a money order was dressed in the same fashion as the person in the Volkwagen. That’s all that was said, as we have seen. Its absence could have been commented on in argument adversely to the prosecution. We say this, not because it was or should have been, but failure to prove that which.is promised sometimes has a boomerang effect. As we have said, we do not deem here this promise of proof to come when it did not come as prejudicial.

Objection is made to the argument that defendant by being in .the driver’s seat raises an arguable presumption that it was defendant’s car. “If you don’t presume the car was his, what do you presume?” This is an argument and a reasonable one. But, defendant urges that it was deliberately misleading, because the prosecution knew from the hearing on the motion to suppress that the car did not belong to defendant. This is assuming a great deal, but even so, we should not view this statement in its context as inflammatory, and if not, it was not error. We note., in passing the absence of an objection. The judgment appealed from is affirmed except the judgment on the information charging, theft identified as “Information — Count II”. As to this judgment, the cause is reversed with directions to vacate the judgment and issue an amended mittimus. Otherwise, the judgments appealed from are affirmed.

Affirmed in part; reversed and remanded in part with directions to issue an amended mittimus.

CRAVEN, P. J., and SIMKINS, J., concur.


text:
    The People ex rel. Environmental Protection Agency, Plaintiff-Appellant, v. Illinois Central Railroad Company, Defendant-Appel-lee.
    (No. 11894;
    Fourth District
    July 5, 1973.

      William J. Scott, Attorney General, of Springfield, (Thomas J. Immel and Delbert Haschemeyer, Assistant Attorneys General, of counsel,) for the People.
    Phillips, Phebus, Tummelson & Bryan, of Urban, (Joseph W. Phebus, of counsel,) for appellee.
   Mr. PRESIDING JUSTICE CRAVEN

delivered the opinion of the court:

In May 1971, the attorney general on relation of the Environmental Protection Agency obtained a permanent injunction in the circuit court of Champaign County by the terms of which the Illinois Central Railroad Company, its officers, agents and employees, were enjoined from knowingly, intentionally, and willfully burning railroad ties without first obtaining any and all requisite permits or other authorization from the appropriate governmental agencies. In December 1971, a petition was filed in the circuit court alleging that the defendant railroad had violated the permanent injunction by burning railroad ties on August 4, 1971. The petition sought a rule upon the railroad to show cause why it should not be held in contempt. Upon a finding of contempt, the petition sought criminal sanctions.

A hearing was held on the petition in March 1972; testimony was taken and at the conclusion of that proceeding, the trial court found that it was not established that the defendant was in contempt and discharged the rule to show cause. The State seeks to appeal.

Supplemental briefs were filed in this court upon the issue of the ap-pealability of the order of the circuit court. Upon consideration of the supplemental material and after having heard argument of counsel, it was the conclusion of this court that the order sought to be appealed was one relating to criminal contempt and not appealable by the State or its agencies. Accordingly, the appeal was dismissed from the bench.

An order of a trial court finding that the defendant was not in violation of an injunction issued by that court is appealable if civil in nature. See 12 I.L.P., Contempt, sec. 86.

In People ex rel. Chicago Bar Assn. v. Barasch, 21 Ill.2d 407, 173 N.E.2d 417, the court noted:

“* * * Proceedings in the nature of criminal contempt have been defined as those directed to preservation of the dignity and authority of the court, while it has been said that civil contempts are those prosecuted to enforce the rights of private parties and to compel obedience to orders or decrees for the benefit of opposing parties. [Citations.] * * * The line of demarcation * * * is indistinct and even imperceptible. [Citation.] A further guide may be found in the purpose of punishment. (Emphasis supplied.) Imprisonment for criminal contempt is inflicted as a punishment for that which has been done, whereas imprisonment for civil contempt is usually coercive and, as was said in the case of In Re Nevitt (8th cir.) 117 Fed. 448, ‘he (the contemnor) carries the key of his prison in his own pocket.’ # *

People ex rel. Illinois State Dental Society v. Taylor, 131 Ill.App. 2d 492, 268 N.E.2d 463, followed Barasch and is more on point. In Taylor, the defendant, as in the instant case, allegedly violated an injunction. The court in Taylor, citing Board of Junior College v. Cook County Teachers Union, 126 Ill.App.2d 418, 262 N.E.2d 125, stated that the “sentence imposed by the trial court was clearly inflicted for the purpose of punishment rather than coercion.”

In this case, the sanctions sought were criminal in nature and such sanction would have been solely punishment for an act previously done. We conclude, therefore, that this appeal is an effort to review a finding, the review of which is not available. Accordingly, the appeal is dismissed.

SMITH and SIMKINS, JJ., concur.


author: Mr. JUSTICE McNAMARA

text:
    The People of the State of Illinois, Plaintiff-Appellee, v. Parnell Blissitt, Defendant-Appellant.
    (No. 56759;
    First District (3rd Division)
    June 21, 1973.

      James J. Doherty, Public Defender, of Chicago, (Michael Weininger, Assistant Public Defender, of counsel,) for appellant.
    Bernard Carey, State’s Attorney, of Chicago, (Kenneth L. Gillis and John C. O’Rourke, Jr., Assistant State’s Attorneys, of counsel,) for the People.
   Mr. JUSTICE McNAMARA

delivered the opinion of the court;

Defendant was charged with the murder of GenneU Hill. After a jury trial, he was found guilty of that crime, and the court sentenced him to a term of 30 to 75 years. On appeal defendant contends that he was so prejudiced by the conduct of the prosecutor and the trial judge that he was deprived of a fair trial. Because of the nature of the argument, the facts may be summarized briefly.

On January 11, 1971, at approximately 8:15 P.M., Miss Gennell Hill was shot and seriously wounded in her room at the S & S Hotel located in the City of Chicago. Miss Hill was an employee of the hotel. She was removed to a nearby hospital, where she died on the same evening.

There were no eyewitnesses to the crime. However, prior to her death Miss Hill told two hotel employees and two police officers that defendant had shot her. In addition, one of the hotel employees testified that defendant told her that he had shot Miss Hill, asked her to call the police and then left the hotel. The police found the murder weapon in the mailbox outside defendant’s apartment.

Defendant did not offer any witnesses. However, the State called defendant’s wife as one of its witnesses. On direct examination she testified that defendant was not home at the time of the shooting. Under cross-examination by defense counsel, she testified that before the police arrived, defendant told her that the victim had shot herself accidentally while playing with defendant’s gun. The witness also testified that prior to the shooting defendant had been living with Miss Hill.

Defendant contends that he was prejudiced and denied a fair trial by the conduct of the prosecutor and the trial judge. Under this heading, he claims six specific errors: (1) the improper display of the prosecutor’s file to the jury; (2) improper cross-examination of a State witness by the prosecutor whereby testimony was elicited implicating defendant in a prior unrelated criminal act; (3) the introduction of hearsay evidence linking defendant with prior unrelated criminal acts; (4) improper introduction of the testimony of an assistant State’s Attorney; (5) the improper exclusion of medical evidence which supported the defense theory that the victim accidentally shot herself; and (6) certain improper comments of the prosecutor during closing argument.

We consider initially defendant’s contention that the trial court erred in allowing into evidence the improper testimony of an assistant State’s Attorney.

Michael Kress, an assistant State’s Attorney, was called as a witness by the prosecution. He testified that he was regularly assigned to Felony Court, and that on the evening in question he was on night call. When on night call, his duty was to review warrants and answer questions presented by police officers. He further testified that on this particular evening he received a telephone call from one of the police officers investigating the instant killing, and that the conversation was concerned with the facts of the offense. Kress further testified, over objections of defendant, that pursuant to his conversation with the police officer, he recommended that a charge of murder be placed against the defendant,

The testimony of the prosecutor was improper and constituted error. It is well settled that it is improper for a trial prosecutor to offer to the jury his belief that a defendant is guilty of the crime charged. (People v. Provo, 409 Ill. 63, 97 N.E.2d 802; People v. Fuerback, 66 Ill.App.2d 452, 214 N.E.2d 330.) If it is prejudicial error for a prosecutor to express an opinion before the jury as to defendant’s guilt, in our judgment, it is even more improper and prejudicial for the State to offer a prosecutor’s testimony that he had discussed the facts of an occurrence with the police and had recommended that the charge of murder be placed against the defendant. The highly prejudicial effect of such testimony seems obvious.

The State suggests, without citation of authority, that since defendant after his objection secured favorable testimony from the witness during cross-examination, he cannot now complain. On cross-examination defendant elicited the information from Kress that the police had informed him that there were no eyewitnesses to the shooting and that defendant had not confessed that he killed the victim. This attempt by the defense to. lessen the harmful effect of the prosecutor’s testimony in no way constituted any waiver of the original error. The trial court erred in allowing the testimony, and the error requires that the cause be remanded for a new trial.

Defendant also contends that the prosecutor denied him a fair trial by improperly commenting on the failure of defendant to testify. During his rebuttal closing argument, the prosecutor stated as follows:

"We submit that that act was a cowardly, dastardly act against the peace and dignity of the People of the State of Illinois. We submit to you, ladies and gentlemen, that the People have not only proved it beyond a reasonable doubt but all doubt and if you are in the jury room and you have any concern about whether the people have proved its case beyond a reasonable doubt you look to the witness stand and ask yourself who, if anyone, put the testimony on in respect to the case; who, if anyone, told you anything about what happened on January 11, 1971.” (Emphasis added.)

A direct reference by the State in its argument concerning defendant’s failure to testify is prejudicial error. (People v. Cheney, 405 Ill. 258, 90 N.E.2d 783.) However, it is permissible for the prosecutor to comment on the uncontradicted nature of the State’s case. (People v. Mills, 40 Ill.2d 4, 237 N.E.2d 697.) The standard used to determine whether the closing argument is improper is whether the reference in closing argument was intended or calculated to direct the jury’s attention to the defendant’s neglect to exercise his right to testify. People v. Burton, 44 Ill.2d 53, 254 N.E.2d 527.

Under the foregoing criteria, we find that the prosecutor’s statements in closing argument were improper. The State’s case was not uncontradicted since one of its own witnesses, defendant’s wife, testified that defendant stated that Miss Hill had shot herself accidentally. In view of this, it seems apparent that the purpose and the ultimate effect of the prosecutor’s statements were to call attention to the defendant’s failure to testify, accomplishing by inference what could not be done expressly. People v. Wollenberg, 37 Ill.2d 480, 229 N.E.2d 490.

Since we do not believe defendant’s other claims of error will recur in a new trial, it is unnecessary for us to discuss those errors in this opinion.

Accordingly, the judgment of the circuit court of Cook County is reversed, and the cause is remanded for a new trial.

Judgment reversed and cause remanded.

SCHWARTZ and McGLOON, JJ., concur.


author: Mr. JUSTICE LORENZ

text:
    The Paddington Corporation, Plaintiff-Appellee, v. Westville Bevverage Mart, Inc., Defendant-Appellant.
    (No. 57314;
    First District (5th Division)
    June 22, 1973.

      Allen H. Schultz, of Chicago, for appellant.
    Patrick W. O’Brien, David S. K. Platt, and Douglas J. Parry, all of Chicago, for appellee.
   Mr. JUSTICE LORENZ

delivered the opinion of the court:

Plaintiff Paddington Corporation filed a verified complaint for “temporary” and permanent injunctions against Westville Beverage Mart, Inc., doing business as Foremost Liquors, alleging that defendant violated the Illinois Fair Trade Act. (Ill. Rev. Stat. 1969, ch. 121½, secs. 188 — 191.) The trial court refused to dissolve a preliminary injunction it had issued restraining defendant from advertising, offering for sale or selling plaintiff’s products until the matter could be resolved on its merits. On appeal defendant contends only that the injunction is invalid because it is not specific as to its terms.

Pursuant to plaintiff’s verified for “temporary” injunction of which defendant was notified, the trial court entered a preliminary injunction in the following terms:

“[Defendant * * * its agents, servants, employees and attorneys, and all persons in active concert or participation with them are hereby enjoined and restrained, until such time as this case can be heard on the merits, or otherwise disposed of, from willfully and knowingly advertising, offering for sale or selling Pad-dington products, including but not limited to [naming one product], in Illinois, at less than the prices stipulated by plaintiff from time to time in any contract entered into pursuant to the provisions of the Fair Trade Act of the State of Illinois, which contracts at the time of filing of the complaint herein were, are now, and will hereafter be in force in Illinois relating to the sale or resale of any of said beverages in that State.”

After this injunction was entered, defendant filed a verified answer denying many of plaintiff’s allegations. Defendant, with the court’s permission, then filed a motion to dissolve the preliminary injunction. Defendant argued that the ex parte injunction was not clear and concise, did not inform defendant of the conduct enjoined, and failed to comply with section 3 — 1 of the Injunction Act.

The plaintiff replied to defendant’s motion denying defendant’s allegations and stating that the Fair Trade Act authorizes plaintiff’s action. After the parties briefed their positions, the court entered the following order:

“[T]hat the motion to dissolve the temporary injunction is denied, the Court basing its decision on the authority of Seagram-Distillers Corp. v. New Cut Rate Liquors, Inc., 221 F.2d 815 (7th Cir. 1955), cert. denied, 350 U.S. 828 (1955).”

and further ordered that the injunction remain in full force and effect according to its terms.

OPINION

Defendant contends only that the injunction is invalid because it is not specific as to its terms. Defendant argues that the trial court’s failure to include the name of each Paddington product and its specific fair trade price renders the injunction invalid for lack of specificity. Defendant cites an Illinois decision (Ill. School Bus Co. v. South Sub. Safeway Lines (1971), 132 Ill.App.2d 833, 839-840, 270 N.E.2d 200, 205-206), and several federal cases including a fair trade case (Schwegmann Bros. G. S. Mkts. v. Hoffman-La Roche, Inc. (5th Cir. 1955), 221 F.2d 326, aff’g Hoffmam-La Roche, Inc. v. Schwegmann Bros. G. S. Mkts. (E. D. La. 1954) 122 F.Supp. 781) which involved a fair trade act and an injunction simüar to that involved in the instant case. Defendant further argues that the language of section 3 — 1 of the Injunction Act (Ill. Rev. Stat. 1969, ch. 69, sec. 3 — 1) is mandatory. That section provides that:

“Every order granting an injunction and every restraining order shall set forth the reasons for its issuance; shaU be specific in terms; shaU describe in reasonable detail, and not by reference to the complaint or other document, the act or acts sought to be restrained; and is binding only upon the parties to the action, their officers, agents, servants, employees, and attorneys, and upon those persons in active concert or participation with them who receive actual notice of the order by personal service or otherwise.”

This section derives from Rule 65(d) of the Federal Rules of Civil Procedure.

Plaintiff argues that the injunction was proper and cites the fair trade case on which the trial court based its decision. (Seagram-Distillers Corp. v. New Cut Rate Liquors (7th Cir. 1955), 221 F.2d 815.) This case involved the IHinois Fair Trade Act and an injunction almost identical to the one in the instant case. The court there reasoned that notwithstanding the language of Rule 65(d) the injunction reasonably informed defendant of the acts restrained yet also provided sufficient flexibffity to meet the needs of a changing market. Without such flexibility, enforcement of the Fair Trade Act would become a practical impossibility.

Upon examining these cases, we do not believe the instant injunction creates undue hardship for defendant. Defendant is actively involved in the liquor business and is aware of the products which are fair traded. The injunction informs defendant of whose products are involved and how in accordance with law defendant wül be informed of any subsequent changes in plaintiffs fair trade program. The burden placed upon defendant is not so onerous as to render the injunction invalid. See Calvert Distillers Co. v. Vesolowski (No. 57532 (First Dist.), filed May 9, 1973.)

Therefore, the judgment of the circuit court of Cook County is affirmed.

Affirmed.

DRUCKER, P. J., and ENGLISH, J., concur.