Juicy Couture Inc. v. Bella International Limited et al, No. 1:2012cv05801 - Document 39 (S.D.N.Y. 2013)

Court Description: OPINION AND ORDER: re: 4 MOTION for Preliminary Injunction. filed by Juicy Couture Inc. For the reasons that are set forth in this Order, Plaintiffs motion or a preliminary injunction is granted in part and denied in part. Plaintiff is directed to submit a proposed order consistent with this Opinion by March 22, 2013. By March 18, 2013, the parties shall also submit individual letters, no longer than two pages, addressing the appropriate security to be posted by Plaintiff. (Signed by Judge Ronnie Abrams on 3/12/2013 ) (Attachments: # 1 Supplement Part 2, # 2 Supplement Part 3, # 3 Supplement Part 4, # 4 Supplement Part 5)(pl) Modified on 3/13/2013 (pl).

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and JG are similar, if not identical (i.e., Juicy Girl), to the Juicy Marks in name alone. The contexts in which they are found are likely to cause further confusion. The design mark utilized by Defendants shown above, in Section Part I.B., for example, is similar in both name and design to a number of Plaintiffs marks. That design mark incorporates the word "Juicy," the initials "JG," a stylized gothic script, and the image of a crown similar to that used in some of Plaintiffs marks. The images below, with Plaintiffs on the left and Defendants' on the right, provide another example of the similarities between one of Defendants' marks and one of Plaintiffs: ~,Juicp ~irl Juicy G;outun (Samuelson Dec!. Ex. A) (Suen Deposition Ex. 20.) The parties' marks also appear in similar contexts as both are used in the sale, packaging and promotion of women' s apparel and accessories. Both parties use their marks on the products themselves, as well as in advertisements and promotions in traditional and social media outlets. Plaintiff has presented compelling evidence of similarities between its advertising campaigns and Defendants' promotional materials, called "stylebooks." (Tr. 84; Pl. ' s Hearing Exs. 3-5 .) Two promotional images presented at the hearing, for example, featured a blonde woman modeling a black tracksuit with gold writing along the pant leg- Plaintiff s which says Juicy Couture and Defendants' which says JG (Samuelson Dec. ~ 15; Screenshot from www.juicylicious.com.hk ("Tarbutton Dec!. Ex. N).) Both images also use gothic lettering- Defendants' on the tracksuit and Plaintiffs in the advertisement's text. (ld.) Defendants' stylebooks also contain many key themes and motifs found in Plaintiffs marketing materials, primarily what has been characterized as a "California-based" setting and theme. Other similarities include the use of a 10 similar color pink, and motifs such as hearts, graffiti, the British flag and leopard and tartan prints. (Tr. 77 -84; Pl. ' s Hearing Exs. 3-5.) Because of these similarities- between both the marks themselves and the context in which they are used- an ordinary consumer could conclude that the products derive from the same source. See Stix Prods. Inc. v. United Merchs. & Mfrs., Inc., 295 F. Supp. 479, 493-94 (S.D.N. Y. 1968). This factor favors Plaintiff. 3. The Competitive Proximity of the Products. The third Polaroid factor considers the extent to which the parties' products compete with each other for customers. See Brennan' s, 360 F.3d at 134. In considering this factor, courts examine "the nature of the products themselves and the structure of the relevant market," including "the manner in which the products are advertised, and the channels through which the goods are sold." Cadbury Beverages v. Cott Corp., 73 F.3d 474, 480 (2d Cir. 1996) (citing Vitarroz v. Borden, Inc. , 644 F.2d 960, 967 (2d Cir. 1981)). Here, the parties' products are advertised and sold in the same channels. Both parties sell apparel and accessories on the Internet and target women and girls as consumers. One distinguishing feature, however, is that Defendants have only sold products in the United States through the Internet, whereas a substantial percentage of Plaintiff's sales in the United States are through brick and mortar stores. This means that shoppers who exclusively purchase in retail locations will not be at risk of encountering Defendants' products and being confused as to the source of the goods. See New Look Party Ltd. v. Louise Paris Ltd., No. 11 Civ. 6433 (NRB), 2012 WL 251976, at *7 (S.D.N.Y. Jan. 11 , 2012) (finding "the fact that plaintiff does not sell its clothing in any physical locations in the United States" when the defendant does "weighs heavily against finding a likelihood of confusion"). Nonetheless, insofar 11

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