Wednesday, July 23, 2014

Snooki Beats Excell Brands in Trademark Case


Image via TMZ.

We were beginning to think that trademark infringement lawsuits against knockoff perfume brands never result in all-out legal victory. Both the Victoria’s Secret/BBW case and the Prada S.A. case against Preferred Fragrance, Inc. ended in settlements, the terms of which have not, to our knowledge, been publicly disclosed. In each case, the plaintiffs may have achieved their overriding objective—a halt to sales of the knockoff brand—but without the risk and cost of pursuing a court order. Of course, they may have achieved far less, or nothing at all. We’ll have to monitor the market availability of the knockoff brands in the coming weeks and months to draw a conclusion.

Meanwhile, those cases inspired us to re-examine the status of Snooki Polizzi’s six-million-dollar lawsuit against Excell Brands, LLC which we covered last November.

Snooki’s original complaint, filed on August 20, 2013, alleged that Excell Brands’ Snazzy perfume infringes because it bears her name and signature exactly as they appeared on her own fragrance, Snooki Perfume by Nicole Polizzi.

Here’s what happened afterwards. On September 24, Judge Naomi Reice Buchwald granted a defense motion for extension of time; they were given until October 17. On October 10, Excell’s attorneys told the court they would file for dismissal of the charges; the next day they asked for another extension of time. Not surprisingly, on October 21 Snooki’s attorneys said they would challenge the request for dismissal. The formal request for dismissal was filed December 11. On January 6 the judge set May 30 as the end of fact discovery, and August 29 as the end of expert discover. On March 12, Judge Buchwald granted a request by both sides to keep confidential certain information produced during discovery.

On March 28, both sides wrote the court as required providing the status of the discovery process. In a word it was not good. Each side accused the other of foot-dragging and non-cooperation. The defendants want to take a deposition from Ms. Polizzi but the two sides had yet to agree on a date; interestingly, it appears that Ms. Polizzi might object to having the deposition videotaped.

On June 18, both sides agreed to a permanent injunction which Judge Buchwald signed on June 20. It’s a clear win for Snooki:
Defendant [Excell Brands LLC], and its officers, agents, servants, employees, attorneys, and other persons who are in active concert or participation with anyone described in Fed. R. Civ. P. 65(d)(2)(A) or (B), will permanently cease and desist from any and all further use of: (i) Plaintiff’s photograph, likeness, voice, sound-alike voice, signature, identity or persona; and (ii) any of the following trade names and trade marks associated with Plaintiff: “Nicole Polizzi,” “N. Polizzi”, “Polizzi,” “Snooki,” “Snooki by Nicole Polizzi,” or “Snooki Couture by Nicole Polizzi,” on or in connection with Defendant’s products, product packaging, product labeling, and/or the advertising, marketing or promotion thereof.”
P.S. We just realized that TMZ reported the injunction a couple of days ago: “The judge has yet to decide how much cash Snooks will get -- but the smell is all hers.”

Two points: First, the lawsuit was not about whether Snazzy smells too much like Snooki; it was about Excell Brands use of Snooki’s name and logo. Excell can still sell Snazzy but only without Snooki’s name or likeness on the product. Second, TMZ seems to think the case is still open; here at FN we’re not so sure. Is this lawsuit still alive? Will Snooki press for monetary damages? We’d be happy to hear from informed sources.

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