Board of Trade of the City of Chicago v. Dow Jones & Company, Inc.

The Board of Trade of the City of Chicago (the Board) (plaintiff) was organized in 1989 for the purpose of maintaining an exchange for the trading of commodity futures contracts. The Commodities Futures Trading Commission (CFTC) regulated the activities of all community exchanges in the United States, including those of the Board. Any futures contract traded on an exchange therefore required the CFTC’s approval. Dow Jones & Company, Inc. (Dow Jones) (defendant) was engaged in news gathering and publishing and in operating wire services that transmitted financial news to subscribers. Dow Jones also calculated and disseminated an index—the Dow Jones Average (DJA)—to subscribing banks, brokerage houses, and exchanges of securities or commodities. In 1980, the Board sought designation from the CFTC as a market for several new futures contracts. Later, the CFTC entered into an agreement with the Securities and Exchange Commission that allowed the CFTC to authorize trading on stock market index contracts, but only if the contracts were based on well-established stock market indices. This agreement had the practical effect of barring CFTC approval of a contract unless it was based on a Dow Jones index. In February 1982, the Board again sought the designation from the CFTC, this time adding that its futures contract, to be called the Chicago Board of Trade Stock Market Index (the CBT Index), would be based on, and identical to, the DJA. While that proposal was pending, the Board brought an action seeking a declaratory judgment from the trial court that the CBT Index would not violate any of Dow Jones’s proprietary rights. The trial court granted that motion, conditioned on the Board’s use of a disclaimer on the CBT Index contract disavowing any association with or sponsorship by Dow Jones. Dow Jones appealed.