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.

Monday, July 21, 2014

Party Candy Party Over?

On October 18, 2013, Prada S.A. took Preferred Fragrance, Inc. to Federal court, charging that PF’s Party Candy fragrance infringed on Prada’s trademark for Prada Candy. We noted the lawsuit as part of our ongoing coverage of the Preferred Fragrance corporate saga: a tale awash in colorful characters, knockoff fragrances, and dubious dealings. (If you know where to look, Federal court filings offer great entertainment value.)

As we remarked at the time, Preferred Fragrance has plenty of experience defending itself against trademark infringement claims and could conceivable fight Prada to a draw, namely a settlement involving something less than a court-ordered destruction of existing product, disgorgement of profits, and treble damages.

Prompted by the recent settlement reached by PF in a similar lawsuit with Victoria’s Secret and BBW, we revisited the docket in the Prada/Party Candy case to find out: What happens after a case like this disappears from the headlines?

First, the case was assigned to Ronnie Abrams, a Federal District Judge for the Southern District of New York. She ordered both sides to appear at an initial conference on January 4, 2014. Shortly before the hearing, the plaintiffs (Prada) asked that the conference be pushed back a month and the judge agreed. This happened again and yet again. (In our view, unsullied by any formal legal education, the delays were presumably requested and granted because the two sides were engaged in settlement discussions.)

When the Prada side asked for a fourth adjournment, Judge Abrams held firm and kept to the then-current April 8 date. Three days later, however, she moved the hearing to May 2 and ordered that the required filings be submitted by April 25. Two days before that filing deadline, Prada’s attorneys filed a notice of voluntary dismissal, telling the court they had reached a settlement with PF and would permanently drop the claims against them.

And so another trademark infringement case ends not with a bang but a whimper. Elapsed time from start to finish: just over six months. Did Prada get PF to stop making and selling Party Candy? Who knows. (A 3rd party is still listing it on Amazon.) Did they get monetary damages from PF? Did they go home empty handed? Would they like to comment here on FN?

Thursday, July 17, 2014

A Dying Sky in Mid-July

Fractals of a summertime polar vortex.

Wednesday, July 16, 2014

Victoria’s Secret v. Preferred Fragrance Ends with a Whimper?

As we noted in February, Preferred Fragrance, its former chief, and the company that acquired it were sued by L Brands, Inc. for trademark infringement. LB claimed that a series of PF products too closely resembled those of its own Victoria’s Secret and Bath & Body Works brands: VS Coconut Passion versus PF Coconut Dream, VS Mango Temptation versus PF Mango Seduction, and so on.

L Brands was looking for a jury trial in Federal court, destruction of the infringing products, disgorgement of profits, and treble damages. In anticipation of a good courtroom battle FN ordered up a supply of popcorn. Sadly, we never got around to popping it.

Yesterday FN commenter “Alex” (why the private Blogger profile, dude?) asked about the status of the lawsuit. We checked and lo and behold, discovered that the case had been settled less than a week ago. Hmmm. So how did it play out?

LB filed the complaint on February 6. There followed a bunch of boring, routine legal filings. Then, on April 25, attorneys for former PF head Ezriel Polatsek filed a motion to have him dismissed from the lawsuit. They claimed LB had failed to state a specific claim against him and that he was in the complaint solely because he was a corporate officer of JPF at the time of the alleged infringement, which by itself is not sufficient basis to hold him liable for the company’s actions. Judge Gregory Frost ordered a hearing on the motion and April 29 LB’s attorneys agreed to dismiss the claims against Polatsek.

By May 14, both sides had apparently reached a settlement. After some delays, the case was officially closed on July 10 (“Stipulated Dismissal With Prejudice” Case 2:14-cv-139-GLF-NMK Doc #33).

The terms of settlement have not, to our knowledge, been made public. There appears to have been no public statement by any of the parties. Mr. Polatsek seems to have wriggled off the hook. However we can no longer find the allegedly infringing Preferred Fragrance products for sale on the web. Does this mean PF quietly folded and pulled the items in question? Perhaps. From an economic point of view, knock-off brand may consider out of court settlements simply a cost of doing business. Of course it’s possible that L Brands, Inc. got spanked so badly in the negotiations that it agreed to go home quietly and empty-handed.


Saturday, July 12, 2014

ISDP: Rules Committee Edition

The mature sun of hot July swells the gourd, and plumps the hazel shells with a sweet kernel, as some wanker once said. It also hastens physical decomposition which, in the case of those unfortunate enough to expire alone and unnoticed, quickly leads to the unmistakable olfactory signal of decay. This being the 13th of the month, it is time for us to release upon our mega fan base yet another collation of I Smell Dead People. A full moon waits off-stage to cast a lugubrious glow on the proceedings.

In Elkton, Maryland, a lady parked her car in a remote area of the Wal-Mart parking lot, climbed into the back seat, and never left. About three weeks later a groundskeeper mowing the lawn next to the parking lot “detected a foul odor and told store managers, who called police.”

Inside the 2002 Chrysler Sebring with Delaware plates police found the decomposing remains of the driver. Foul play is not suspected.

This next case raises a difficult question for the ISDP Rules Committee which some wags refer to as the Death Panel. Everyone knows that to qualify as an ISDP incident the remains in question must be discovered by scent. Thus, when police come upon a body in the course of a welfare check requested by a concerned relative, the incident does not qualify as being discovered by scent, no matter how malodorous the remains may be.

So how would you rule on this case from North Carolina?
On Tuesday just before 10:00 a.m., detectives with the Criminal Investigations Division were in the 600 block of Peters Creek Parkway conducting a follow up investigation on a missing person case. While in the area, one of the detectives noticed a foul odor in the vicinity of Peters Creek Parkway and Academy Street. The detective recognized the odor to be that of decomposition, and after a brief search, located a body down a steep embankment near the intersection.
Because detectives were already searching for a missing person, the olfactory discovery of a body would not seem to qualify as an ISDP incident. But here’s the rub: the body they discovered was that of a 30-year-old man from Mr. Airy—who was not the missing person for whom they were searching. In fact, the original missing person remains missing.

Does that make the incident on Peters Creek Parkway a bona fide ISDP event? We think it is . . . definitely ambiguous.

A New Nominee for the Norman Bates Award™

ISDP fans recognize the New York Daily News as the Ur-text, the very Necronomicon of the field. Its archives teem with grotesque incidents, each described in lurid detail. Readers got a classic installment in early July with the headline “Skeletal remains of woman found in Brooklyn apartment; daughter lived with the corpse for more than a year.”

Here’s the lede:
Police digging through 3 feet of garbage in a Brooklyn kitchen finally discovered the woman they were looking for.
But the rats and roaches had found her first.
And people say that noir style is dead . . .

Chava Spira, 28 years old, had been living in a trash-stuffed apartment in Brooklyn’s Borough Park with the remains of her 61-year-old mother, Susie Rosenthal. The building supervisor called police after liquid began leaking through their apartment floor to the lobby and he found the apartment door ajar. Ms. Spira was visible inside and initially unresponsive. She later threatened to harm herself and it took officers over an hour to coax her out. She is being held for psychiatric observation. Neighbors say both women were recluses who seldom left the apartment or even opened the door. Ms. Spira was known to scream incoherently across the building’s courtyard.

The truly remarkable part of the Daily News account is that Ms. Rosenthal’s sister apparently dropped off food for the women on a daily basis. She had arrived to do so when she found police on the scene. When informed that Ms. Spira had been taken away, she inquired about her sister. Police officers, who had not realized that two people were living in the unit, then began the search that uncovered Ms. Rosenthal’s remains. How, one might ask, could keen noses have missed the inevitable stink? Short answer: they didn’t miss it.
A foul odor had been coming from the apartment for a long time, [charity spokesman Mayer] Berger was told. “That stench stayed for months and months,” he said. “To have someone live with that odor for months and months is beyond me.”
It’s beyond us as well, Mr. Berger. And that’s why Ms. Spira is now a nominee for the 2014 Norman Bates Award™.

But that leaves some lingering metapsychophysical questions: is Ms. Spira’s aunt, Janis Gellis, anosmic? Did she not notice the smell? If she did, what did she make of it?

Finally, a question to our loyal ISDP fans: does enabling Norman Bates Award-worthy behavior deserve its own formal recognition? Please submit your comments to the Rules Committee.

We leave you a snippet from Saira Kahn’s extended essay in The Atlantic: “Smelling Death: On the Job With New York's Crime-Scene Cleaners.”
It’s hard to describe the smell of death. It makes your eyes tear and can make the strongest of stomachs churn. It’s strong enough to creep through a gas mask designed to keep the air you’re breathing clean.