Jumbo Bright v. Gap

Case 2:12-cv-08932-DDP-MAN Document 41 Filed 01/04/13 Page 1 of 3 Page ID #:1534
I ANDREA E. BATES, ESQ. SBN 192491

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Abates@Bates-Bates.com
BATES & BATES, LLC
3 964 DeKalb Avenue, Suite 101
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Atlanta, Georgia 30307
Phone: (404) 228-7439
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Attorneys for Plaintiffs
7 Jumbo Bright Trading Limited and Charles Anthony Philip Pozzi,
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
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JUMBO BRIGHT TRADING )
LIMITED, a Hong Kong corporation, )
and CHARLES ANTHONY PHILIP )
POZZI, an individual )
vs.
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Plaintiffs, )
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THE GAP, INC., and DOES 1 through
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Defendants,
Case No. CV12-8932-DDP (MANX)
NOTICE OF MOTION FOR
RECONSIDERATION OF THE
COURT'S DECEMBER27, 2012
ORDER DENYING PLAINTIFFS'
MOTION FOR A PRELIMINARY
INJUNCTION
Hon. Dean D. Pregerson
Date: February 4, 2013
Time: 10:00 am
Courtroom: 3
22 TO THE HONORABLE COURT AND TO ALL PARTIES:
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PLEASE TAKE NOTICE that on Februmy 4, 2012 at 10:00 a.m., or as soon as
possible thereafter, this matter for Plaintiffs' Request for Reconsideration of The
Comi's December 27; 2012 Order Denying Plaintiffs' Motion for Preliminary
Injunction may be heard by the above entitled Court located at 312 North Spring Street
NOTICE OF MOTION FOR RECONSIDERATION OF THE COURT'S DECEMBER 27,2012
ORDER DENYING PLAINTIFFS' MOTION FOR A PRELIMINARY INJUNCTION
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Comiroom 3, Los Angeles California 90012 in front of the Honorable Dean D.
Pregerson, United States District Court Judge.
This Motion is premised on the accompanying Notice of Motion for
Reconsideration of the Comi's December 27,2012 Order Denying Plaintiffs' Motion
for A Preliminary Injunction and all papers and proceedings in this action as well as
any arguments occurring at the hearing.
Respectfully submitted this 4th day ofJanuary 2013.
BATES & BATES, LLC
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ANDREA E. BATES
BATES & BATES, LLC
JUMBO BRIGHT TRADING LIMITED and
CHARLES ANTHONY PHILIP POZZI
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CERTIFICATE OF SERVICE
I hereby certifY that a true and correct copy of the foregoing was furnished
through the Court's CMIECF System addressed to all parties:
Michael D. Roth, Esq.
Alison Mackenzie, Esq.
Caldwell, Leslie & Proctor, P.C.
725 South Figueroa Street
31st Floor
Los Angeles, California 90017-5524
James D. Weinberger, Esq.
Giselle C.W. Huron, Esq.
Fross, Zelnick, Lehrman & Zissu, P.C.
866 United Nations Plaza
New York, NY 10017
This 4th day of January 2013.
Andrea E. Bates
Case 2:12-cv-08932-DDP-MAN Document 41-1 Filed 01/04/13 Page 1 of 20 Page ID
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I ANDREAE. BATES, ESQ. SBN 192491
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Abates@Bates-bates.com
BATES & BATES, LLC
3 964 DeKalb A venue, Suite 101
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Phone (404) 228-7439
5 Fax ( 404) 963-6231
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Attorneys for Plaintiff
7 Jumbo Bright Trading Limited and Charles Anthony Philip Pozzi
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12 JUMBO BRIGHT TRADING LIMITED, )
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A Hong Kong Corporation, and CHARLES )
ANTHONY PHILIP POZZI, an Individual, )
PLAINTIFFS' MEMORANDUM
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Plaintiffs,
vs.
HE GAP, INC. and DOES 1-10,
Defendants.
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IN SUPPORT OF ITS MOTION FOR
RECONSIDERATION OF THIS
COURT'S DECEMBER27, 2012
ORDER DENYING PLAINITFFS'
INJUNCTION [Doc. No. 40]
Bon. Dean D. Pregerson
Hearing Date: February 4, 2013
Hearing Time: 10:00 a.m.
Courtroom 3
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PLAINTIFFS' MEMORANDUM IN SUPPORT OF IT'S MOTION FOR RECONSIDERATION OF
THIS COURT'S DECEMBER 27,2012 ORDER DENYING PLAINTIFFS' MOTION FOR A
PRELIMINARY INJUNCTION
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TABLE OF CONTENTS
I. INTRODUCTION AND RELEVANT FACTS ........................ 2
II. ARGUMENT AND CITATION TO AUTHORITY ................... 4
A. Plaintiffs Request This Court Reconsider Its
Determination That Gap's Statement It Will Stop
Manufacturing Rather Than Selling The Infringing
Shoes Negates Irreparable Harm ................................. 5
B. Plaintiffs Respectfully Request This Court Reconsider Its
Determination That Plaintiffs Are Not Entitled To A
Preliminary Injunction Based On The Instruction And
The Record Of The Hon. Dean D. Pregerson Set Forth
Ott December 3, 2013 .......... ...................................... 7
C. Plaintiffs Respectfully Request This Court Reconsider
Its Determination That The Three Pieces Of Evidence
The Court Considered In Its Order Did Not Establish
Irreparable Harm ................................................... 8
D. Plaintiffs Respectfully Request This Court Reconsider Its
Determination That Plaintiffs Are Not Entitled To A
Preliminary Injunction Based On The Instruction And
The Record Of The Hon. Dean D. Pregerson Set Forth
On Decetn ber 3, 2013 ............................................. 13
II. CONCLUSION ............................................................ 16
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TABLE OF AUTHORITIES
CASE LAW
Alliance for the Wild Rockies v. Cottrell
632 F.3d 1127 (9th Cir. 2011 ) ................................................................... .4
CytoSport, Inc. v. Vital Pharmaceuticals, Inc.
617 F. Supp.2d 1051 (E. D. Cal. 2009) ......................................................... 6
Fidelity Nat. Title Ins. Co. v. Castle
No. C 11-00896 SI, 2011 WL 5882878, at *3 .......................................... 10, 13
Flynt Distributing Co., Inc. v. Harvey
734 F.2d 1389 (9th Cir. 1984) .................................................................. 10
Maxim Integrated Products, Inc. v. Quintana
654 F. Supp.2d 1024 (N.D. Cal. 2009) ........................................................ 6
Overstreet ex rel. Nat 'l Labor Relations Ed. v. W. Prof'! Hockey League, Inc.
No. CV 09-0591 PHX ROS, 2009 WL 2905554, at* 2 ................................... 10
Sierra Club, Lone Star Chapter v. F.D.I. C.
992 F.2d. 545 (5th Cir. 1993) .................................................................. 10
Volkswagen AG v. Verdier Microbus & Camper, Inc.
No. C 09-00231 JSW, 2009 WL 928130, at* 6 ............................................ 1 I
Winter v. Natural Resources Defense Council, Inc.
555 u.s. 7, 29 (2008) .......................................................................... .4
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I. INTRODUCTION AND RELEVANT FACTS
On December 27, 2012, this Court entered an Order denying Plaintiffs Jumbo
Bright Trading Limited ("JBTL") and Charles Anthony Philip Pozzi's ("Charles Philip")
(collectively "Plaintiffs") Motion for Preliminmy Injunction, finding insufficient evidence
to establish a likelihood of irreparable harm. [See Ex. A to Dec. of A. Bates, Doc. No. 40
at p. 5.] Additionally, the Court found that Defendant Gap, Inc. ("Gap") minimized any
harm that Plaintiffs might suffer because it ceased producing loafers with a "Phillip" or
"Philli" stamp. [!d.] Pursuant to Local Rule 7-18( c), Plaintiffs respectfully request this
Court reconsider its determination that Plaintiffs failed to establish a likelihood of
irreparable harm, pmiicularly in light of the fact that Gap to sell blatant copies of
nearly Plaintiffs' entire collection of shoes under the PHILLIP name.
First, Plaintiffs request this Comi reconsider its conclusion that Gap's statement it
will no longer manufacture shoes with the word "Phillip' or "Philli" negates irreparable
harm. It is the continued marketing and "sale" rather than the manufacturing of the
substantially similar PHILLIP shoes that is irreparably harming Plaintiffs' stmi-up
company. Second, Plaintiffs request this Court consider a piece of evidence that it did not
address in its Order, which is the Declaration of Peter Grueterich that Plaintiffs submitted
in their Reply Brief in Support of their Motion for Preliminary Injunction.
Mr. Grueterich's Declaration clarifies his letter that the Comi found "inadmissible," and,
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when the two documents are read together, they constitute "admissible evidence" that
demonstrates irreparable harm. [See Ex. Band C Dec of A Bates]
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Third, Plaintiffs request this Court reconsider its determination that three (3) pieces
5 of evidence -- a letter from Peter Grueterich [See Ex B to Dec. of A. Bates] mentioned
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above; a website blog [See Ex. D to Dec of A Bates] discussing the substantial similarities
between the parties' shoes; and an email from JBTL's Officer Lizzette Hernandez to
Plaintiffs [See Ex. E to Dec. of A. Bates] -- did not establish irreparable harm. In part,
Plaintiffs request this Court reconsider its determination that neither the website blog nor
the e-mail from Ms. Hernandez are admissible and reconsider its determination that the
letter from Mr. Grueterich was too limited and general. In the alternative, as the Court can
still consider even inadmissible evidence at the preliminary injunction stage, Plaintiffs
request this Court determine whether these three (3) pieces of evidence establishes
irreparable harm. The Comi's Order appeared to operate under the assumption that it
could only consider what it deemed "admissible evidence" to determine whether
irreparable harm existed.
Finally, Plaintiffs request that, if an injunction is not issued, the Court requires Gap
to abide by the instructions of the Honorable Dean D. Pregerson as set forth in the
December 3, 2012 hearing where he stated that Gap declare under oath that it will not to
use PHILIP, PH ILl or any derivation thereof on shoes similar to that of Plaintiffs and that
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THIS COURT'S DECEMBER 27, 2012 ORDER DENYING PLAINTIFFS' MOTION FOR A
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Gap sell off any remaining PHILLIP, PHILLI shoes within 90 days of December 3, 2012.
[See Ex. F to Dec. of A. Bates at 16:2 and 33:6-7.]
II. ARGUMENT AND CITATION TO AUTHORITY
5 Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 29 (2008) tells us
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that plaintiffs may not obtain a preliminary injunction unless they can show that
irreparable harm is likely rather than possibly to result in the absence of the injunction.
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Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9th Cir. 2011). In the
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context of trademark infringement, irreparable harm is typically found in a plaintiffs loss
of control over their business reputation, loss of trade and loss of goodwill. Maxim
Integrated Products, Inc. v. Quintana, 654 F. Supp.2d 1024, 1036 (N.D. Cal. 2009).
Irreparable injury exists where a court reasonably concludes that continuing infringement
will result in loss of control over the plaintiff's reputation and good will. !d.
Plaintiffs respectfully request this Court reconsider its determination that Plaintiffs
failed to establish a likelihood of irreparable harm, particularly in light of the fact that Gap
continues to sell blatant copies of nearly Plaintiffs' entire line of shoes under the PHILLIP
name. Pursuant to Local Rule 7-18( c), Plaintiffs respectfully request this Court reconsider
its December 27, 2012 Order Denying Plaintiffs' Motion for a Preliminary Injunction.
[See Ex A to Dec. of A. Bates] Local Rule 7-18(c) provides, in relevant part, that "[a]
motion for reconsideration of the decision on any motion may be made only on the
grounds of ... (c) a manifest showing of a failure to consider material facts presented to
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the Court before such decision." C.D. Cal. L.R. 7-18 (c). Local Rule 7-18 further
provides that "[n]o motion for reconsideration shall in any manner repeat any oral or
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written argument made in support of or in opposition to the original motion." I d.
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Court to reconsider its determination that Gap's promise to stop manufacturing rather than
selling the infringing shoes negates irreparable harm. Plaintiffs will then proceed with
navigating through their discussion via the roadmap provided in the introduction.
A.
Plaintiffs Request This Court Reconsider Its Determination That Gap's
Statement It Will Stop Manufacturing Rather Than Selling The
Infringing Shoes Negates Irreparable Harm.
Plaintiffs respectfully request this Comi reconsider its determination that
"Defendant has minimized any harm that Plaintiffs might suffer, because it ceased
producing loafers with a 'Phillip' or 'Philli' stamp." [See Ex. A to Dec of A. Bates p. 5.]
Irreparable harm is established by Gap's sworn statement that they will continue to sell the
infringing products for an undefined amount of time. After all, consumer confusion is
likely to happen at the point of sell rather than the point of manufacturing a confusing
similar product.
During the December 3, 2012 Hearing on Plaintiffs' Motion for Preliminaty
Injunction, this Court eluded that irreparable harm was not an issue in this case.
Specifically, this Court stated that it only found a lack of irreparable harm at that
temporary injunction stage based more on a due process issue. [See Ex. F to Dec. of A.
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THIS COURT'S DECEMBER 27, 2012 ORDER DENYING PLAINTIFFS' MOTION FOR A
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Bates at 16:2.] Presumably, to prevent Plaintiffs from suffering irreparable harm, this
Comt directed Gap during the hearing to provide a declaration (in lieu of entering an
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injunction), under penalty ofpe1jury, that: (1) it would not use the term PHILIP, PHIL! or
5 any derivation of that mark on shoes that were similar to that designated by Plaintiffs; and
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(2) it would cease manufacture AND sale of PHILIP/PHIL! loafers in no less than 90
days. Specifically, the Court stated that "They'll sell them all within 90 days. Put that in
your declaration too." [See Ex. F to Dec. of A. Bates at 33 :6-7.]
Gap failed to do this. Rather, it provided a Declaration from its Director of Nmth
America Finance, Chris Hubbard that merely states Gap is planning on continuing to sell
off, for an unlimited period of time, an undisclosed large number of PHILIP shoes in over
700 stores across the country and that it will only eventually stop using PHILIP and PHIL!
on shoes. Specifically, Mr. Hubbard stated: "Gap has no ability to precisely state the last
date on which all units of products will be sold through at all Gap stores throughout the
U.S. (nearly 700 stores across the country)." [See Ex. G to Dec. of A. Bates at pp. 4, 8.]
This fact only establishes irreparable harm. For example, in Maxim Integrated
Products, Inc. v. Quintana, 654 F. Supp.2d 1024, 1036 (N.D. Cal. 2009), the Court found
a likelihood of iiTeparable harm existed due to "Defendants' lack of evidence with regard
to whether their manufacture and use of [the infringing] product will continue in the
future." See CytoSport, Inc. v. Vital Pharmaceuticals, Inc., 617 F. Supp.2d 1051, 1081
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(E.D. Cal. 2009) (finding irreparable hmm, based in pa1i, on evidence that Defendant
"continues to flood the marketplace with its [infringing] products ... ")
Thus, Plaintiffs respectfully submits that Gap's sworn statement that it will continue
to sell the infringing products for an undisclosed amount of time establishes irreparable
harm. Plaintiffs will continue to suffer loss of control over their business reputation, loss
of trade, loss of goodwill as a result of the sales.
B.
Plaintiffs Request That This Court Consider The Declaration Of Peter
Grueterich As Part Of The Establishment Of Irreparable Harm, As The
Court Did Not Consider This Evidence In Its Order.
In this Court's December 27, 2012 Order [See Ex. A to Dec of A Bates], it stated
Plaintiffs' cite three (3) pieces of evidence in their irreparable harm argument. [/d.] This
Court, however, did not address a fourth and impmiant piece of evidence Plaintiffs
provided in support of their Motion for Preliminary Injunction to establish irreparable
harm: The Declaration of Peter Grueterich in Support of Plaintiffs' Reply Brief in
Suppmi oflts Motion for Preliminary Injunction. [See Ex. C to Dec. of A. Bates].
In its Order Denying the TRO, the Comi required Plaintiffs to demonstrate an
imminent threatened injury by clear evidence, not speculation. [See Ex. H to Dec. of A.
Bates at 5] To address the Court's concern, Plaintiffs provided the Declaration of Peter
Grueterich. [See Ex. C to Dec of A Bates]. Mr. Grueterich works for Peter Marcus
Group, the US distributor for the CHARLES PHILIP brand shoes. [See Ex. C to Dec. of
A. Bates p. 2, 2.] As the US distributor, he is familiar with the irreparable damages that
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the GAP PHILLIP line has caused Plaintiffs. [Id. at "'f 3.] According to the Declaration of
Mr. Grueterich:
4. Since the release of the Gap PHILLIP shoes, the CHARLES
PHILIP sales have been in a severe decline. By way of example, one of the
high-end retailers has asked to return 800 pairs of shoes, which have not sold
and are cancelling another shipment of 800 pairs for next season. This
NEVER occurred prior to the Gap PHILIP release; CHARLES PHILIP shoes
were, since their launch, one of the BEST SELLERS for our retailers and
since the GAP launch the sales have been in severe decline and there has been
an increase in returns.
5. The devastating effects of the Gap PHILLIP shoes have also
caused one of our retailers to state that they are only going to cany the
CHARLES PHILIP shoes in eight (8) stores, whereas prior to the GAP
release of the Gap PHILLIP shoes the CHARLES PHILLIP shoes were
available in 22 stores.
6. The blatant copies and sales made by GAP are crippling the
CHARLES PHILIP sales. The reputation of CHARLES PHILIP shoes with
high-end retailers and customers may never be repaired if the GAP PHILIP
shoes are not immediately pulled from the marketplace.
[See Ex. C to Dec. of A. Bates]
As the Court did not address whether the Declaration of Peter Grueterich constitutes
admissible evidence to demonstrate irreparable harm, which Plaintiffs believe it does,
Plaintiffs respectfully request this Court reconsider the irreparable harm analysis.
c.
Plaintiffs Respectfully Request This Court Reconsider Its Determination
That The Three Pieces Of Evidence The Court Considered In Its Order
Did Not Establish Irreparable Harm.
Addressing the other three pieces of evidence this Comi did consider in its
December 27, 2012 Order [Ex. A to Dec. of A. Bates], Plaintiffs respectfully request this
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Court reconsider its determination these pieces of evidence failed to establish irreparable
harm. [See Ex. B, C, D, E to Dec. of A. Bates] The first piece of evidence this Court
ruled inadmissible is a letter written from Plaintiffs' distributor, Peter Grueterich, to Gap,
claiming that Gap's loafers confused customers and diminished Plaintiffs' sales. (See Ex.
B to Dec. of A Bates] The Comi found this letter to be too limited and general, stating
that "the letter provides limited information ... It does not explain how its author knew
customers had been confused, nor does it specifY any actual lost revenues that have
occurred since Defendant's product was introduced." [See Ex. A to Dec. of A. Bates].
Mr. Grueterich's letter, however, must be considered in connection with his
affidavit discussed above and which the Court did not consider in its opinion. For
example, this Comi stated that Mr. Grueterich's letter is too limited because it does not
"specifY any actual lost revenues that have occurred since Defendant's product was
introduced. [Jd.] His affidavit, however, provides the answer to the Comi's concern, thus
providing foundation for his letter:
Since the release of Gap PHILIP shoes, the CHARLES PHILIP sales have
been in a severe decline. By way of example, one of the high-end retailers
has asked to return 800 pairs of shoes, which have not sold and are
cancelling another shipment of 800 pairs for next season. This NEVER
occurred prior to the Gap PHILIP release; CHARLES PHILIP shoes were,
since their launch, one of the BEST SELLERS for our retailers and since the
Gap launch the sales have been in severe decline and there has been an
increase in returns. [Ex. C to Dec. of A. Bates at 2, ~ 4.]
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Thus, Mr. Grueterich's letter and affidavit read together provide "clear evidence, not
speculation," regarding actual lost revenues that have occurred since Gap's infiinging
products hit the market. [See Ex. Band C to Dec. of A. Bates]
As for the final two pieces of evidence -- a website blog and an e-mail from Lizzette
Hernandez, this Court found that neither of these pieces of evidence constitute "admissible
evidence." [See Ex. D and E A to Dec. of A. Bates]. Plaintiffs respectfully state that both
the blog and e-mail are admissible, but even if they are not, this Court can consider
inadmissible evidence at the preliminary injunction stage. At the preliminary injunction
stage, "the district court may rely on otherwise inadmissible evidence, including hearsay
evidence." See Sierra Club, Lone Star Chapter v. F.D.l.C., 992 F.2d. 545, 551 (5th Cir.
1993); see also Flynt Distributing Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984)
("The urgency of obtaining a preliminary injunction necessitates a prompt determination ..
. The trial court may give even inadmissible evidence some weight, when to do so serves
the purpose of preventing irreparable harm before trial."); see also Fidelity Nat. Title Ins.
Co. v. Castle, No. C 11-00896 SI, 2011 WL 5882878, at *3 (N.D.Cal. Nov. 23, 2011)
("Plaintiffs argue that the evidence is admissible, but even if it is not, the Court may
consider inadmissible evidence at this juncture, when 'to do so serves the purpose of
preventing irreparable harm before trial' .... The Court agrees.'")
"Accordingly, evidence which would be inadmissible at trial may be considered."
Overstreet ex rei. Nat'/ Labor Relations Ed. v. W. Prof'/ Hockey League, Inc., No. CV 09-
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0591 PHX ROS, 2009 WL 2905554, at * 2 (D. Ariz. Sept. 4 2009). Thus, given that this
Court can consider inadmissible evidence at the preliminary injunction stage, Plaintiffs
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respectfully request this Court reconsider its determination that it cannot consider the blog
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In the alternative, Plaintiffs respectfully request this Court reconsider its
determination that the blog and email are inadmissible. In ruling the blog inadmissible,
this Court cited Volkswagen AG v. Verdier Microbus & Camper, Inc., No. C 09-00231
JSW, 2009 WL 928130, at * 6 (N.D. Cal. Apr. 3, 2009). In Volkswagen, the Court,
however, allowed internet postings and blogs "suggest[ing] that consumers believe the
Verdier vehicle is a [Volkswagen] product" as evidence weighing in favor of actual
consumer confusion. For example, one posting stated, "if you are looking for eco-friendly
16 vehicles around, check out this one by Volkswagen. We all love the outdoors and
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roughing it. So if you want to add a piece of green to your extra curricular activities,
check out this creation by Canadian Alexandre Verdier." See I d. at * 4.
In Volkswagen, the plaintiffs submitted the above internet and blog postings by
providing an affidavit from their counsel, stating:
On November 24, 2008, I fmiher investigated Gaps and their products on the
Internet by conducting a simple google.com search using the words "VW"
and "Verdier" together. At that time I found several online atiicles and blogs
that in my view indicate the authors' actual confusion regarding the source
of Gaps products, or the affiliation of Gaps with VW. The articles are
supplied to the Court in support ofVW's motion. True and correct copies of
the online articles and blogs are attached to this Declaration as Exhibit 3,
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and two of these articles are attached to the Verified Complaint as Exhibit D.
[See Declaration of Jason Eves in Support of VW's Motion for Preliminary
Injunction attached See Ex. I to Dec. of A. Bates]
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The Volkswagen Court find the blogs admissible, despite the fact that VW's counsel did
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would lay a foundation. Rather, although the Comi did not address the issue, it appears
that counsel's declaration under penalty of pe1jury that the attached exhibits were true
and correct copies was sufficient for the Court to consider the blogs.
Similarly, in the present case, Plaintiffs provided a similar blog to establish
irreparable harm. The blog states, "The Gap is on fire with their women's shoes lately! I
am loving their Tassel Loafers for the Fall, and found them strikingly similar to that of
Charles Philip, and only a fraction of his prices!" [See Ex. D to Dec. of A. Bates] Like
the Volkswagen plaintiff, Plaintiffs provided an affidavit from their attorney stating that
attached is a true and correct copy of the blog. Also, like the Volkswagen plaintiff,
Plaintiffs affidavit did not explain what website the exhibit came from or who wrote it.
Thus, Plaintiffs respectfully request this Comi reconsider its detennination that it
could not consider Plaintiffs' attached blog, given that it appears the Volkswagen Court
considered similar blogs with similar attestations by counsel in that case.
Likewise, Plaintiffs request the Court reconsider its determination that
Ms. Hernandez's e-mail is not admissible evidence because it fails, inter alia, to provide
evidence regarding her role with JBTL. The letter specifically states that she is "the
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officer of Jumbo Bright Trading Limited." [See Ex. E to Dec. of A. Bates] Furthermore,
to address the Comi's concern regarding how she came to know what she wrote in the e-
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mail, she would have learned this information via her position as officer of company.
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serves the purpose of preventing irreparable harm before trial, Fidelity Nat. Title Ins. Co.
v. Castle, 2011 WL 5882878, at *3, Plaintiffs respectfully request the Court reconsider its
determination that Plaintiffs failed to provide sufficient evidence of irreparable harm.
D.
Plaintiffs Respectfully Request This Court Reconsider Its Determination
That Plaintiffs Are Not Entitled To A Preliminary Injunction Based On
The Instruction And The Record Of The Hon. Dean D. Pregerson Set
Forth On December 3, 2013.
Pursuant to Local Rule 7-18(c), "A motion for reconsideration of the decision on
any motion may be made only on the grounds of... (c) a manifest showing of a failure to
consider material facts presented to the comi before such decision." On December 3,
2013, the Hon. Dean D. Pregerson heard oral arguments on Plaintiffs' Motion for a
Preliminary Injunction. During the hearing, the Comi indicated the following:
THE COURT: Okay. First of all, on the- the Phillip name that appears in
some of the perhaps labeling of small print on some The Gap shoes --
MS. BATES: Yes, Sir.
THE COURT: -- to me, that would be something that I would likely grant an
injunction on, but Gap has indicated that they are no longer selling and don't
have any inventory of shoes, I believe that contain the Phillip name on them.
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MS. BATES: Your Honor, I brought these two days before I came here in
Orlando.
THE COURT: Oh, really?
MR. WEINBERGER: Your Honor, the product is no longer being
manufactured. Inventory is ve1y limited. I don't believe there is much left, but
there is some product left in the market.
THE COURT: Well, I regarded that as a likely violation. I can't understand of
any legitimate reason to have the name Phillip on those shoes particularly when
they are in many ways very, very similar ...
[See Ex. F to Dec. of A. Bates at 5:24, 6:1-18]
THE COURT: In theory it may, but I don't- I can't understand any reasonable
business justification for putting the name "Phillip" on your shoes.
[See Ex. F to Dec. of A. Bates at 16: 23-24]
THE COURT: I think you're better off trying to settle this aspect of the
claim, you know, because I don't think you're going to succeed on the merits
when the name is essentially the same and the styles ai'e essentially the same.
And, you know, I just don't see that happening. So then the question is what's
going to happen with the existing inventory and what should I do?
[See Ex. F to Dec. of A. Bates at20:17-23]
THE COURT: Okay. Well, probably what I would do would be to give your
client some period of time to dispose of the inventory and order that our client
maintain records.
23 [See Ex. F to Dec. of A. Bates at 23: 8-10]
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MS. BATES: Well, we would ask that the shoes- that they not be given a
significant amount of time to sell all the shoes, because it is damaging to my
client, and so we would request that this Comi at least asks them to be pulled
within a reasonable period of time.
----------- ----- -- ........ - --- --- . --- --- ----Jk ................ -......... .................. . . ------ -------------
PRELIMINARY INJUNCfiON
#:1553
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THE COURT: Well, that's what I'm going to do.
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THE COURT: The injunction would simply enjoin the Gap from selling
shoes where the name Phillip or some variation of it is stamped on the shoe or
present on the shoe.
[See Ex F to Dec. of A. Bates at 28: 12-15]
THE COURT: I'm still troubled by the fact that Gap puts it name on a - what
appears to be a fairly well known fashion shoe.
THE COURT: Well, but what you're suggesting is that you would file a
representation and a declaration under penalty of petjury by your client,
indicating it is no longer manufacturing any shoes that bear the name "Phillip"
or any name that is substantially similar to "Phillip" and that it will maintain all
records relating to the sale of any shoes that are substantially similar to the
plaintiff's shoes that have the name "Phillip" on them.
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THE COURT: Just through the clerk.
21 MR. WEINBERGER: Okay.
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THE COURT:
declaration.
You could do it in the form of- you could simply submit the
[See Ex. F to Dec. of A. Bates at 31: 9-14]
MS. BATES: And, Your Honor, we would just ask the Comi again to put
some soti of time limit on the sell-off period, just so we know that these shoes
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are not going to be lingering for years to come. At a minimum -I mean, Gap is
a huge, huge -
3 THE COURT: They'll sell them all within 90 days. Put that m your
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declaration, too. Okay. Thank You.
5 [See Ex. F to Dec. of A. Bates at 33: 1-8]
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Based on the transcript of the aforementioned hearing, Plaintiffs request that the
Court grant its request for Preliminary Injunction or, in the alternative, that this Court
require Gap to abide by the express instructions of this Court as set forth in the transcript.
III. CONCLUSION
Accordingly, Plaintiffs respectfully requests this Court grant their Motion for
Reconsideration of this Court's December 27, 2012 Order Denying Plaintiffs' Motion for
a Preliminary Injunction and it: (1) vacate its December 27, 2012 Order; (2) grant
Plaintiffs' Motion for Preliminary Injunction; or (3) require Gap to submit a declaration
that follows the Comi' directive in the December 3, 2012 hearing that: (a) it would not use
the term PHILIP, PHILI or any derivation of that mark on shoes that were similar to that
designated by Plaintiffs; and (b) it would cease manufacture AND sale of PHILIP/PHIL!
loafers in no less than 90 days .
28 -------------------- ------------- -------------- __________________________ _]_6 _______________ ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - -
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Respectfully submitted, this 4th day ofJanuary 2013.
BATES & BATES, LLC
/N

ANDREA E. BATES
Attorneys for PLAINTIFFS
JBTL and Charles Anthony Philip Pozzi
28 ------
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I hereby certify that a true and correct copy of the foregoing was furnished through
the Court's CMIECF System addressed to all parties:
31st Floor
New York, NY 10017
ndrea E. Bates
28 - - - - - ~ - - -- --------------------------- -------------- ---- . -.- ---- .. lL ____ ------ ----------------------------------------------- ---- ------------ ---
#:1557
1 ANDREA E. BATES, ESQ. SBN 192491
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BATES & BATES, LLC
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Phone (404) 228-7439
5 Fax (404) 963-6231
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JUMBO BRIGHT TRADING
LIMITED, A Hong Kong Corporation,
and CHARLES ANTHONY PHILIP
POZZI, an Individual,
Plaintiffs,
vs.
THE GAP, INC. and DOES 1-10,
Defendants.
) Case No. CV12-8932-DDP (MANX)
)
) DECLARATION OF
) ANDREA E. BATES IN SUPPORT
) OF PLAINTIFFS' MOTION FOR
) RECONSIDERATION OF THIS
) COURT'S DECEMBER 27, 2012
) ORDER DENYING PLAINTIFFS'
) MOTION FOR PRELIMINARY
) INJUNCTION
)
) Judge: Honorable Dean D. Pregerson
) Date: February 4, 2013
Time: 10:00 a.m.
Comiroom: 3
DECLARATION OF ANDREA E. BATES
23 I, Andrea E. Bates, declare as follows:
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1.
Unless otherwise stated as based upon information and belief, the facts set
fmih in this declaration are personally known to me and I have first knowledge of
-I-
DECLARATION OF ANDREA E. BATES IN SUPPORT OF PLAINTIFFS' MOTION FOR
RECONSIDERATION OF THIS COURT'S DECEMBER 27,2012 ORDER DENYING
PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
#:1558
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these facts. If called upon to testify during court of this action, I could, and I would
competently testify thereto under oath. I am over 18 and a party to this action.
2.
I am an attorney licensed to practice law before the courts in the State of
5 California and the federal Central District of California. I am a pminer in the law firm
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of Bates & Bates, LLC, which is counsel of record for Plaintiffs JUMBO BRIGHT
TRADING LIMITED, a Hong Kong corporation and CHARLES ANTHONY PHILIP
POZZI, and individual (collectively "Plaintiffs"). As one of the attorneys in this case,
I participate in the filing and retrieval of documents for this case. I also supervise
associate attorneys and staff in those activities.
3.
Attached as Exhibit A is a true and conect copy ofthis Court's December
27, 2012 Order Denying Plaintiffs' Motion of a Preliminary Injunction ("Order") as
found at Docket No. 40 in this case.
4. Attached as Exhibit B is a true and correct copy of the letter fiom Peter
Grueterich as I submitted as an attachment to the Declaration of Andrea Bates in
suppmi of Plaintiffs' Motion of a Preliminary Injunction and referenced in the Order.
5.
Attached as Exhibit Cis a true and correct copy of the Declaration of
Peter Grueterich as I submitted with the Reply Brieffor Plaintiffs' Motion of a
Preliminmy Injunction.
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6.
Attached as Exhibit Dis a true and correct copy of the blog site found on
the Internet by me, showing the substantial similarities between the Gap and Charles
Philip shoes as I provided as an Exhibit to the Declaration of Andrea Bates in support
of Plaintiffs' Motion of a Preliminary Injunction and referenced in the Order.
7.
Attached as Exhibit Eisa true and correct copy of the email from
Lizzette Hernandez, an officer of Plaintiffs Jumbo Bright Trading Limited, explaining
how the sale of Gap PHILIP shoes were harming Plaintiffs as I provided as an Exhibit
to the Declaration of Andrea Bates in support of Plaintiffs' Motion of a Preliminary
Injunction and referenced in the Order.
8.
Attached as Exhibit F is a true and correct copy ofthe Repmier's
Transcript of Proceedings for the Motion for Preliminary Injunction as heard on
December 3, 2012 and dated December 21,2012. This transcript was provided to us by
the Official Court Repmier, Maria R Bustillos.
9.
Attached as Exhibit G is a true and correct copy of the Director ofNorth
America Finance, Chris Hubbard as filed with this Comi by the Defendants in support
of Defendant's Opposition to Plaintiffs Motion for Preliminary Injunction and
referenced in the Order. This Exhibit was electronically served on the Plaintiffs on
December 7, 2012.
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#:1560
1 10. Attached as Exhibit His a true and correct copy of this Court's Order
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Denying Plaintiffs' initial request for an Ex Parte Temporary Restraining Order as
served on Plaintiffs.
5 11. On January 4, 2012, I logged onto www.pacer.gov and pulled up the case
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Volkswagen AG v. Verdier Microbus & Camper, Inc., No. C 09-00231 JSW, (N.D.
Cal. Apr. 3, 2009) (the "Volkswagen" case); the corresponding westlaw number for
this case is 2009 WL 928130.
12. I then clicked on Document Number 10 in the Volkswagen case, whic
contained the Declaration of Jason Eves in Support of VW's Motion for Preliminar
Injunction; I then clicked on Document Number 10-3, which contained Exhibit C to
Mr. Eves' Declaration. Attached collectively as Exhibit I is a true and correct of cop
of Mr. Eves' Declaration and Exhibit C to his Declaration ..
I declare under penalty of petjury under the laws of the United States o
19 America, the States of Georgia and California that the foregoing is true and correct.
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Executed on January 4, 2013 in Atlanta, Georgia.
~ : q
Declarant
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I hereby cetiifY that a true and correct copy of the foregoing was furnished
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through the Court's CM!ECF System addressed to all parties:
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31st Floor
New York, NY 10017
This 4th day ofJanumy 2013.
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#:1562
Case :12-cv-08932-DDP-MAN Document 40 Filed 12/27/12 Page 1 of 5 Page ID #:1529
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11 JUMBO BRIGHT TRADING )
LIMITED, a Hong Kong )
12 corporation; CHARLES ANTHONY )
PHILIP POZZI, )
case No. CV 12-08932 DDP (MANx)
ORDER DENYING PLAINTIFFS' MOTION
FOR A PRELIMINARY INJUNCTION
13 )
Plaintiff, ) [Docket No. 25]
14 )
v. )
15 )
THE GAP I INC. I )
16 )
Defendants. )
17 )
18 I. Background
19 Plaintiffs Jumbo Bright Trading Limited ("JBTL") and Charles
20 Anthony Philip Pozzi ("Pozzi") (collectively "Plaintiffs") have
21 sued The GAP, Inc. ("Defendant") for various claims including
22 trademark infringement, patent infringement, and the right of
23 publicity.
(See generally Compl., Docket No. 1.) The dispute
'
24 arises from Defendant's new loafers, which are allegedly
25 confusingly similar to Plaintiffs' CP Charles Philip loafers-both
26 in design and in Defendant's use of a stamp containing the word
27 "Phillip" or "Philli" on the inside of its loafers.
28 Hubbard Decl. ("Second Hubbard Decl.") '1!'1! 4-5, Docket No. 36.) On
EXHIBIT
JA
#:1563 Case :12-cv-08932-DDP-MAN Document 40 Filed 12/27/12 Page 2 of 5 Page ID #:1530
1 October 23, 2012, Defendant ceased manufacturing loafers that bear
2 a "Phillip" and "Philli" stamp, and will no longer use the stamps
3 on its loafers once the remaining loafers are sold, which Defendant
4 estimates will occur by March 4, 2013.
(Id. ~ ~ 6-7.) Defendant
5 states that "a customer cannot locate [Defendant's loafers] by
6 searching the term 'Phillip' on Gap's website." ( Id. ~ 5. )
7 Defendant will keep sales records of its slippers bearing the
8 challenged stamp, "throughout the duration of this litigation,
9 including any appeals." (Id. ~ 9.)
10 On October 25, 2012, this Court issued an Order Denying
11 Plaintiffs' Application for a Temporary Restraining Order and an
12 Order to Show Cause Re: Preliminary Injunction ("Order"). (Docket
13 No. 21.) Presently before the court is Plaintiffs' Motion for a
14 Preliminary Injunction ("Motion"). (Docket No. 27.) Because
15 Plaintiffs have not shown they are likely to suffer irreparable
16 harm, their Motion is DENIED in its entirety.
17 II. Legal Standard
18 The Supreme Court set forth the standard for assessing a
19 motion for preliminary injunction in Winter v. Natural Resources
20 Defense Council, Inc., 555 U.S. 7, 29 (2008). "Under Winter,
21 plaintiffs seeking a preliminary injunction must establish that (1)
22 they are likely to succeed on the merits; (2) they are likely to
23 suffer irreparable harm in the absence of preliminary relief; (3)
24 the balance of equities tips in their favor; and (4) a preliminary
25 injunction is in the public interest." Sierra Forest Legacy v.
26 Rey, 577 F.3d 1015, 1021 (9th Cir. 2009). If a plaintiff fails to
27 show a single factor, such as irreparable harm here, a court need
28 only discuss that factor. Amylin Pharmaceuticals, Inc. v. Eli
2
1 Lilly & Co., 456 F.App'x 676, 679 (9th Cir. 2011) (unpublished);
2 ConocoPhillips Co. v. Gonzalez, No. 5:12-CV-00576-LHK, 2012 WL
3 538266, at *3 (N.D. Cal. Feb. 17, 2012).
4 III. Irreparable Harm Analysis
5 Plaintiffs have not shown a likelihood of suffering
6 irreparable harm. Plaintiffs were required to provide "admissible
7 evidence" showing "that the harm is real, imminent and
8 significant." Volkswagen AG v. Verdier Microbus & Camper, Inc.,
9 No. C 09-00231 JSW, 2009 WL 928130, at *6 (N.D. Cal. Apr. 3, 2009).
10 "Speculative injury does not constitute irreparable injury
11 sufficient to warrant granting a preliminary injunction. A
12 plaintiff must do more than merely allege imminent harm sufficient
13 to establish standing; a plaintiff must demonstrate immediate
14 threatened injury as a prerequisite to preliminary injunctive
15 relief." Caribbean Marine Servs. Co., Inc. v. Baldrige, 844 F.2d
16 668, 674 (9th Cir. 1988) (emphasis in original). In the context of
17 trademark infringement, which is the focus of Plaintiffs'
18 irreparable harm argument, irreparable harm is generally found if
19 there is a "loss of control of a business' reputation, a loss of
20 trade and loss of goodwill." CytoSport, Inc. v. Vital
21 Pharmaceuticals, Inc., 617 F. Supp. 2d 1051, 1080 (E.D. Cal. 2009),
22 aff'd, 348 F. App'x 288 (9th Cir. 2009). Evidence of actual
23 confusion is very persuasive in deciding whether irreparable harm
24 is likely. See Volkswagen, 2009 WL 928130, at *6 (N.D. Cal. Apr.
25 3, 2009) 0
26 Plaintiffs cite three pieces of evidence in their irreparable
27 harm argument. (Plaintiff's Amended Memorandum in Support of a
28 Preliminary Injunction at 14:5-16:26, Docket No. 27-2.) The first
3
#:1565
Case :12-cv-08932-DDP-MAN Document 40 Filed 12/27/12 Page 4 of 5 Page ID #:1532
1 is a letter written from Plaintiff's distributor to Defendant,
2 claiming that Defendant's loafers confused customers and diminished
3 Plaintiffs' sales.
(Bates Decl. Ex. C, Docket No. 27-9.)
Like the
4 Order, the Court finds that this letter provides information that
5 is too limited and general.' The second is a picture of
6 Defendant's loafers above Plaintiffs', with text below that reads:
7 "The Gap is on fire with their women's shoes lately! I am loving
8 their Tassel Loafers for the Fall, and found them strikingly
9 similar to that of Charles Philip, and only a fraction of his
10 prices!" (Bates Decl. Ex. D, Docket No. 27-10.)
Plaintiffs'
11 attorney's declaration states that this exhibit "is a true and
12 correct copy of a website blog discussing the 'substantial
13 similarities' between the GAP shoes and Charles Philip."
(Bates
14 Decl. 7, Docket No. 27-3.)
Plaintiffs do not explain what
15 website the exhibit comes from, who wrote it, or any other facts
16 that would lay a foundation.
Plaintiffs must provide "admissible
17 evidence" to show irreparable harm, so the Court cannot consider
18 the instant exhibit. See Volkswagen, 2009 WL 928130, at *6.
19
Plaintiffs' third and final piece of evidence is Exhibit E to
20 the Bates Declaration.
Plaintiffs' attorney states Exhibit E
21 contains "true and correct copies of correspondences from
22 Plaintiffs, showing actual irreparable harm incurred by
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The letter provides limited information. It does not explain hm1 its
author knml customers had been confused, nor does it specify any actual lost
revenues that have occurred since Defendant's product introduced. Id. The
letter's general statements are insufficient to that there is an
"immediate threatened injury." See Caribbean Marine, 844 F.2d at 674; see also
Overstreet ex rel. Nat
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1 Labor Relations Bd. v. W. Prof' 1 Hockey League. Inc 01
No. CV 09-0591 PHX ROS, 2009 I'lL 2905554, at *8 (D. Ariz. Sept. 4, 2009)
(explaining that "clear evidence, not speculation' is required to support
allegations of "irreparable harm"). Order at 5:4-17.
4
1 Plaintiffs." (Bates Decl. 'l! 8.) Exhibit E is a copy of a single
2 email from Lizette Hernandez, who states that she is affiliated
3 with JBTL. (Bates Decl. Ex. E., Docket No. 27-11.) The exhibit
4 itself does not indicate to whom the email was sent.
(See id.)
5 There is no evidence about what role Lizette Hernandez has at JBTL.
6 There is no information about how she came to know what she wrote
7 in the email.
8 The email states that some stores have threatened to stop
9 carrying Plaintiff's loafers, but does not explain which stores (or
10 how many) have made these threats. Since there is insufficient
11 reason to believe the author of the email has personal knowledge
12 about the subject of her email, and since the email is speculative
13 and conclusory, Plaintiffs fail to introduce "admissible evidence"
14 indicating that "harm is real, imminent and significant." See
15 Volkswagen, 2009 WL 928130, at *6.
16 Because Plaintiffs have insufficient evidence, they have not
17 shown a likelihood of irreparable harm. Additionally, Defendant
18 has minimized any harm that Plaintiffs might suffer, because it
19 ceased producing loafers with a "Phillip" or "Philli" stamp.
20 (Second Hubbard Decl. 'l! 6-7.)
21 IV. Conclusion
22 For the reasons set forth above, Plaintiffs' Motion is DENIED.
23
24 IT IS SO ORDERED.
25
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27 Dated: December 27, 2012
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DEAN D. PREGERSON
United States District Judge
#:1567
PETER MARCUS GROUP
Dear Sir:
I am writing to express our deep concern regarding GAP, Inc's release, marketing
and sale of the PHILIP loafer. As the GAP shoes are:(i) nearly identical to the
CHARLES PHILIP shoes, (ii) sold under the name PHILIP and (iii) sold at a price
point more than 70% lower than the genuine CHARLES PHILIP shoes; our
customer stores, such as Bloomingdale's, Saks and Neiman Marcus as well as
many others are concerned that this blatant copy of a unique design or The
CHARLES PHILIP loafer will infringe on their sales of the original Charles Philp
loafer . The GAP PHILIP loafers are causing confusion in the marketplace as
customers are buying a cheaper and lower quality near identical copy of the
CHARLES .PHILIP loafer as a PHILIP branded shoe, thinking its endorsed and
created by CHARLES PHILIP. This confusion in the marketplace is reducing the
sale of the high end CHARLES PHILIP shoes within our customer stores and in
tum our company's sales.
Regards,
_ .... --/Ja" ..

/r 1
/
Peter Grueterich
CEO & President
Peter Marcus Group LLC
Exclusive North American Distributor, Charles Philip Of Shanghai
EXHIBIT
i B
37 \YILLOWMERE CIRCLE, RIVERSIDE, CT 06870 T +1203 987 4432 F +1 212 918 9300 info@petermarcusgroup.com
#:1568
1 ANDREA E. BATES, ESQ. SBN 192491
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BATES & BATES, LLC
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Phone ( 404) 228-7439
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LIMITED, A Hong Kong Corporation,
and CHARLES ANTHONY PHILIP
Plaintiffs,
vs.
Defendants.
) Case No. CV12-8932-DDP (MANX)
)
) DECLARATION OF
) PETER GRUETERICH IN SUPPORT
) OF PLAINTIFFS' REPLY BRIEF IN
) SUPPORT OF IT'S MOTION FOR
) PRELIMINARY INJUNCTION
)
)
) Judge: Honorable Dean D. Pregerson
) Date: December 3, 2012
) Time: 10:00 a.m.
) Courtroom: 3
DECLARATION OF PETER GRUETERICH
I, Peter Grueterich, declare as follows:
1.
Unless otherwise stated as based upon infonnation and belief, the facts set
25 forth in this declaration are personally known to me and I have first knowledge of
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EXHIBIT
I C
- I -
DECLARATION OF PEfER GRUEfERICH IN SUPPORT OF PLAINTIFFS' REPLY BRIEF IN
SUPPORT OF IT'S MOTION FOR PRELIMINARY INJUNCTION
#:1569
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these facts. If called upon to testify during court of this action, I could, and I would
competently testify thereto under oath. I am over 18 and a party to this action.
2.
I work for the Peter Marcus Group, the US distributor for the CHARLES
5 PHILIP brand shoes which are owned by Plaintiffs JUMBO BRIGHT TRADING
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LIMITED, a Hong Kong corporation and CHARLES ANTHONY PHILIP POZZI, and
individual (collectively "Plaintiffs").
3.
As the US distributor, I am very familiar with the irreparable damage that
the GAP PHILLIP line has caused to Plaintiffs.
4.
Since the release of the Gap PHILLIP shoes, the CHARLES PHILIP sales
have been in a severe decline. By way of example, one of the high-end retailers has
asked to retum 800 pairs of shoes, which have not sold and are cancelling another
shipment of 800 pairs for next season. This NEVER occUlTed prior the Gap PHILIP
release; CHARLES PHILIP shoes were, since their launch, one ofthe BEST
19 SELLERS for our retailers and since the Gap launch the sales have been in severe
20 decline and there has been an increase in returns.
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5.
The devastating effects of the Gap PHILLIP shoes have also caused one
of our retailers to state that they only going to carry the CHARLES PHILIP shoes in
eight (8) stores, whereas prior to the GAP release of the Gap PHILLIP shoes the
CHARLES PHILLIP shoes were available in 22 stores.
-2-
DECLARATION OF PEI'ER GRUEI'ERICH IN SUPPORT OF PLAINTIFFS' REPLY BRIEF IN
#:1570
1 6.
The blatant copies and sales made by GAP are crippling the CHARLES
2
PHJLIP sales. The reputation of CHARLES PHJLIP shoes with high-end retailers and
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customers may never be repaired if the GAP PHJLLIP shoes are not immediately
5 pulled fiom the marketplace.
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7 I declare under penalty of petjury under the laws of the United States of
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America and the State of California that the foregoing is true and col1'ect.
Executed on November 16, 2012 in Greenwich, Connecticut.
-3-
DECLARATION OF PEI'ER GRUEI'ERICH IN SUPPORT OF PLAINTIFFS' REPLY BRIEF IN
#:1571
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I hereby certifY that a true and conect copy of the foregoing was furnished
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through the Comt's CMIECF System addressed to all pmties
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31'
1
Floor
Fross, Zelnick, Lehrman & Zissu, P .C.
New York, NY 10017
This 16th day ofNovember 2012.

ndrea E. Bates, Esq.
-4-
DECLARATION OF PEfER GRUEfERICH IN SUPPORT OF PLAINTIFFS' REPLY BRIEF IN
#:1572
Tho Gap Is on fire with their women's shoes lately! I am loving their Tassel Loafers for the Fall. and
found them strikingly similar to that of Charles Philip, and only a fraclion of his prices! See details of
these sleat vs. splurge finds below:
EXHIBIT
I D
#:1573
Lizzette
I of I
https://west.exch02I ...
lizzette
Lizzette Kattan [lizzette@charlesphilipshanghai.com]
Sent:Frlday, November 02, 2012 9:59AM
Dear Sir or Madam:
I am the officer of Jumbo Bright Trading Limited ("JBTL"). JBTL has been irreparably
damaged by GAP's release of the PHILLIP shoes. Charles Philip only creates and sells high
end loafers, available in stores like SAI<S FIFTH AVE, BERGDORF GOODMAN, NEIMAN
MARCUS and BLOOMINGDALE'S. Having the JBTL shoes affiliated with a low end store
such as the GAP has irreparably damaged this high end designers reputation and name.
Further, the presence of these cheap GAP PHILLIP loafers has harmed the goodwill
surrounding his brand. The GAP PHILLIP shoes have been a best seller in many of the
GAP stores worldwide, every sale of the counterfeit shoes by GAP is representative of a lost
sale by Jumbo Bright, this equates to hundreds of thousands of dollars in lost sales. To that
end, many of the distributors have stated that their stores have threatened to pull the
legitimate CHARLES PHILIP shoes as a result.
In faith,
Lizzette Hernandez
Jumbo Bright Trading Limited
Lizzette Kattan
Iizzette@charlesphilipshanghai.com
CHARLES PHILIP SHANGHAI
Loft 96, Pu Jiang Yi Cheng, No.399 Pu Quan Rd, Min Hang District, 201112 Shanghai

rh: +86 21 52217363
fax: +86 2152217361
www.charlesphili oshanghai .com
EXHIBIT
.l1
i l:: ..
1112112 I 0:00AM
#:1574
\ I .'
'
1 UNITED STATES DISTRICT COURT
2 CENTRAL DISTRICT OF CALIFORNIA
3 WESTERN DIVISION
4 - - -
5 HONORABLE DEAN D. PREGERSON, DISTRICT JUDGE PRESIDING
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JUMBO BRIGHT TRADING LIMITED,
Plaintiffs,
vs.
THE GAl? I INC . I
Defendants.
)
)
)
)
)
)
) No. CV 12-08932-DDP
)
)
)
)
)
)
__________________________ )
REPORTER'S TRANSCRIPT OF PROCEEDINGS
MOTION FOR PRELIMINARY INJUNCTION
LOS ANGELES, CALIFORNIA
MONDAY, DECEMBER 21, 2012
MARIA R. BUSTILLOS
OFFICIAL COURT REPORTER
C.S.R. 12254
UNITED STATES COURTHOUSE
312 NORTH SPRING STREET
ROOM 404
LOS ANGELES, CALIFORNIA 90012
(213) 894-2739
EXHIBIT
F
#:1575
'
....
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2
APPEARANCES
ON BEHALF OF THE PLAINTIFFS,
LIMITED:
ON BEHALF OF THE DEFENDANTS
1
THE GAP, INC.:
BATES & BATES, LLC
BY: ANDREA BATES
964 DEKALB AVENUE
SUITE 101
ATLANTA, GEORGIA 30307
(866)701-0404
FROSS, ZELNICK, LEHRMAN &
ZISSU PC
BY: JAMES D. WEINBERGER,
ESQ.
866 UNITED NATIONS PLAZA
6TH FLOOR
NEW YORK, NEW YORK 10017
(212)813-5900
CALDWELL, LESLIE & PROCTOR
BY: MICHAEL DIETZ ROTH,
ESQ.
725 SOUTH FIGUEORA STREET
31ST FLOOR
LOS ANGELES, CALIFORNIA 90017
(213)629-9040
#:1576
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I N D E X
MOTION FOR PRELIMINARY INJUNCTION:
3
PAGE
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#:1577
,,
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LOS ANGELES, CALIFORNIA; MONDAY, DEC8MBER 3
1
2012
-oOo-
(COURT IN SESSION AT 12:14 P.M.)
THE! CL8RK: Calling item four, CV 12-8932-DDP:
5 Jumbo Bright Limited vs, The Gap.
6 Counsel, may 1oe have appearances, please.
7 THE COURT: Go ahead.
8
MS. BATES: Andrea Bates for Bates & Bates for the
9 plaintiff Jumbo Bright and Charles Phillip.
10 THE COURT: Good morning.
11
12
MS. BATES: Good morning.
MR. 1'/EINBERGE!R: James Weinberger from Fross,
13 Zelnick, Lehram & Zissu in Nev1 York for defendant The Gap.
14 And I'm here \lith my colleague, Michael Roth from the
15 Caldwell, Leslie firm.
16 THE! C O U R ~ : Okay. I just noticed that one of my
17 former la10 clerks is listed on the --on this case,
4
18 Allison MacKenzie. I think I might have another lav1 clerk at
19 Caldwell too.
20 THE! CL8RK: Also David Zaft and Arwin Johnson.
21 THE COURT: I have three lm1 clerks at that firm.
22 The last one vms there -- Allison ...
23 THE CLERK: Allison was six years ago --
24 THE COURT: It seems like it's been more than that.
25 And then Anlin was --
#:1578
5
1
THE CLERK: Seven or eight. An"l.in was about five.
2 THE COURT: Five or so years ago. Yeah, in 2006.
3 I just mnted to disclose that fact. If it
4 concerns you, then we should talk about it. I've been on the
5 bench 16 years. I have over 30 lm1 clerks, probably 150
6 externs around. But ...
7
8
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MS. BATES: I think we're okay, Your Honor.
THE COURT: Okay.
MS. BATES: As long as the law clerk is no longer
10 1orking for you, I think \m' re okay.
11 THE COURT: Okay. No longer working for me, but I
12 think it's important that you know.
13 MS. BATES: Absolutely.
14 THE COURT: Okay. Okay. That's fine.
15
16
MS. BATES: Thank you, Your Honor.
THE COURT: Okay. Thank you.
17 !Vhy don't I hear then from the plaintiff.
18 MS. BATES: Okay, Your Honor. I'm just going to
19 hit the highlights. We've already submitted our documents
20 for this case, but I lill go over just the basic premise of
21 why ~ 1 e 're here and 11hat 1e' re asking this Court to do.
22 THE COURT: Can I -- 110uld it be helpful if I just
23 reacted generally to what you've submitted?
24
25
MS. BATES: Sure, Your Honor.
THE COURT: Okay. First of all, on the -- the
#:1579
,,
1 Phillip name that appears in some of the perhaps labeling or
2 small print on some The Gap shoes
3
4
MS, BATES: Yes, sir.
'l'HE COURT: -- to me, that would be something that
5 I NOUld likely grant an injunction on, but Gap has indicated
6 that they are no longer selling and don't have any inventory
7 of shoes, I believe, that contain the Phillip name on them.
8 MS. BATES: Your Honor, I bought these two days
9 before I came here in Orlando.
10 THE COURT: Oh, really?
11 MR. WEINBERGER: Your Honor, the product is no
12 longer being manufactured. Inventory is very Limited. I
13 don't believe there is much left, but there is some product
14 left in the market,
THE COURT: Well, I regarded that as a likely
violation. I can't understand of any legitimate reason to
have the name Phillip on those shoes particularly when they
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are in many ways very, very similar. Having said that and
we can talk about that issue further, I 11as not inclined to
grant the preliminary injunction on any other issue. And the
reason for that ~ 1 a s that the law does not prohibit copying.
Your client has to have some acquired distinctiveness -- some
secondary meaning in their product that llould cause a
consumer to believe that they emanated from a single source,
So just -- your -- your client makes beautiful
#:1580
;I
7
1 shoes and they look like they've been copied or very
2 similarly -- similar ones are sold by the Gap. The Gap has
3 pretty prominent identifier of the Gap on those shoes on the
4 sole and on the. inside, as well in large letters. But I
5 didn't find or think that there was sufficient evidence that
6 your client had established a sufficient basis for acquired
7 distinctiveness on the basis of 11hat I smv. So companies
8 work very hard to develop some identifier for their
9 brand: the Nike s\'loosh or many of the other ones that you see
10 out there. The only similar identifier I saw with your
11 client was they -- some of the shoes it looked like they have
12 the sort of striped insert or striped inner lining.
13
14
MS, BATES: Yes, Your Honor.
THE COURT: And -- but the defendants provided
15 dozens of examples of other shoes that have similar striped
16 lining on the inside and sometimes on the outside, but at
17 least many on the inside. So I didn't think that
18 preliminarily for purposes of an injunction that you had met
19 your burden of likelihood of success on the merits based upon
20 the stripe blue design. So that's -- that's essentially
21 where I am. I mean, companies ~ 1 o r k very hard to develop a
22 brand and a brand identifier, and I just didn't think under
23 the circumstances that that \vas sufficient. So that's there
24 we -- that's where I'm thinking.
25
MS. BATES: Okay.
#:1581
'
8
1
THE COURT: Okay?
2 MS. BATES: Well, then I lill just address, you
3 very briefly the Phillip name -- obviously, the Phillip
4 name is on the substantially similar shoes 11hich are out
5 there, the entire line of Charles Phillip shoes. 'l'he shoes
6 are still available for sale. As I've stated to this Court,
7 that I did -- I ms actually able to buy shoes two days ago
8 in Orlando.
9
THE COURT: I recall a reference .tn the brief that
10 they quote, no longer being sold but --
11 MS. BATES: No, Your Honor, they're
12 THE COURT: I think it says that,
13 MR. WEINBERGER: It says "manufactured,"
14 Your Honor.
15
16
17 the U,S,
18
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THE COURT: Okay.
MS. BATES: So they are still being sold throughout
THE COURT: Okay.
MS. BATES: With regard -- I will just go straight
20 to the secondary meaning of the trademark.
21 The plaintiffs have obviously spent a significant
22 amount of time, energy and money in developing its brand, and
23 its brand are the blue and 11hite stripes which are on the
24 insole of their shoes.
25 The plaintiffs in this case have provided expert
#:1582
.)
9
1 commentary and letters which 11ill be provided to the USPTO
2 1hich will establish secondary meaning. These letters are
3 very similar to letters 1hich were provided to the USPTO by
4 Christian Louboutin Nhich are people \'/ho are experts in the
5 industry that are able to establish what, you know, is deemed
6 a source identifier and is not.
7 THE COURT: I'm sorry. You said your client is
8 going to submit --
9 MS. BATES: No, my client did. They're actually--
10 if you look --
11
THE COURT: But What the result of those
12 letters?
13
MS. BATES: Oh, no, He haven't -- oh, sorry. We
14 submitted them to the Court. We haven't submitted them to
15 the USPTO yet.
16 THE COURT: Yes, I understand. Okay. I was
17 confused.
18 MS. BATES: Oh, sorry. I apologize. Some of the
19 letters which provided, just as a reminder, Jeanette Chang
20 who is the publishing director for First International -- and
21 as a reminder First International is the publishing company
22 that publishes Harper's Bazaar, Elle, Marie Claire, Cosmo,
23 The publishing director for Hearst International provided a
24 letter saying -- I mean, Hearst International is basically
25 telling you, This is the fashionable dress to this year.
#:1583
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10
1 It identifies 11hat is fashion; 11hat are the colors, 11ho
2 should be Nearing 11hat, and basically sets the standard
3 11ithin the industry. The publishing director of Hearst
4 International provided a letter provided a letter 11hich
5 states that the pinstripe -- the blue and 1vhite stripe ~ o ~ h i c h
6 is used by Charles Phillip is identifiable solely and
7 exclusively to charles Phillip.
8 vie provided a letter from Brooke Shields who is an
9 actress and fashion model v1ho stated that the pinstripes
10 l'lhich are used 11ithin the Charles Phillip shoes have
11 secondary meaning and are a source identifier.
12 We provided a letter from Bryan Bantry 11ho has
13 over 40 years of experience in the fashion industry that says
14 that these clearly have secondary meaning and are associated
15 exclusively,
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THE COUR'l': 1\re your
--
do your blue stripes --
they al11ays the same number of stripes?
MS. BATES: umm ...
THE COURT: Are they ahmys
location?
MS. BATES: Yes.
THE COURT: The same size?
23 stripes; the same color?
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MS. BATES: Yes, Your Honor.
THE COURT: Are they?
in
'fhe
the same general
same number of
are
#:1584
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MR. \'lEINBERGER: No they're not, Your Honor, There
2 are a couple of varieties. The first, if I may, is some of
3 the shoes -- I don't have any of them here, the striping goes
4 all the Nay around the back. Some of it ends before the
5 heel. You can see here, there's kind of a line that s drawn,
6 but in others -- we have a light blue pinstripe here. We
7 have a thick darker pinstripe here. So I mean, there's
8 consistency in that they have stripes, but they're not the
9 same stripes, And I don't believe they're consistent from
10 product to product. We can get these
11 THE COURT: I can see them.
12 MS. BATES: And, Your Honor, 11e -- they may be a
13 little bit darker. I haven't -- I actually haven't seen
14 those. But they are basically the pinstripes 11ithin the
15 inside and in some of the shoes the stripes go all the Nay
16 around. In other shoes it doesn't. And there are two
17 there is tNO trademark applications pending within the USPTO
18 that evidence that there's tv1o ways in which the stripe
19 designs are used, but
20
THE COURT: Are there other shoes out there that
21 have striped designs?
22 MS. BATES: Your Honor, the defendants provided
23 many, many examples of stripes ~ 1 h i c h are used in the apparel
24 industry. However, they only really provided you two pairs
25 of shoes ~ 1 h i c h are substantially similar to that used by
#:1585
12
J. Charles Phillip, and both of those shoes are no longer
2 available because Vle
1
ve sent out cease and desist letters,
3 THE COUR'r: It seemed like there 11ere more than
two. 4
5
MS. BATES: The other shoes that they provided \'/ere
6 not substantially similar. And by using their logic, they've
7 said that basically because stripes have been in the industry
8 so long that '"e can't use it as a trademark. Well, if 11e
9 1mre to take that logic, then Christian Louboutin v10uld not
10 have been able to get a trademark on the red sole of the shoe
11 because red vms around a lot longer than he has been around.
12 THE COURT: Sure. But you still have to have
13 strength in -- in secondary meaning, and your client may very
14 '"ell have that identifier, The question is, are you going to
15 satisfy the requirements of likelihood of success on the
16 merits at the preliminary injunction stage, essentially based
17 upon some letters by people in the industry that are 11ell
18 respected people in the industry, but nevertheless vlhen I
19 start asking, Well, are the stripes consistent? Does it look
20 like the vlay that Adidas used to have their three stripes?
21 You knol'l, they 11ere suing people that v1ould put four stripes,
22 for example. And I just -- I didn't see any evidence that
23 there 11as a particular Nay that the stripes were on the
24 shoes; that it 11as ah1ays consistent. Then it just became
25 it came down to, okay. They're blue stripes. There appear
#:1586
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1 to be other shoes that use blue stripes as a some1vhat come
2 motif, whether they're the same type of shoe. You could say,
3 Well, they're not the same type of shoe, but again in the
4 minds of the consumer, \ve 're looking at association 1'1ith a
5 single source. To the extent there might be blurring because
6 there are other companies that don't make identical shoes or
7 maybe even a different class of shoe, but still use the same
8 striping, then you would say, Well, you kno11, that just
9 simply 1eakens the the likelihood of -- of there being a
10 distinct identifier.
11 MS. BATES: I hear you, Your Honor. However, it is
12 our proposition that the stripes had been used. I mean,
13 there may be some darker stripes, but they're pinstripes.
14 There are blue and Hhite pinstripes that have been used
15 11i thin the shoes. And they've been used consistently on the
16 inside of the shoes. When people see it, they identify it as
17
18
19
20
being a Charles Phillip.
And more importantly in this case, the Gap took the
entire line of Charles Phillip shoes the same they used --
they even used the same lvhite -- I don't even know Nhat it's
21 called -- soles inside of it. I've had a hard time just
22 differentiating the two 11hen I get them out of a bag because
23 they're the same the stitching is the same. The fabrics
24 are the same.
25 THE COURT: Sure.
#:1587
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MS. BATES: And they use blue and Nhite stripes.
THE COURT: Companies can copy.
14
MS. BATES: They can't copy if they use their
ttademark and it's our proposition that the blue and white
stripes are a trademark and that the -- the experts' letters
thich have been provided do state that they are a trademark;
that it is identified as a source identifier, and that it is
something that consumers
and as I said, Hearst magazine
agrees 11ith us that it is a source identifier tvhen people
tvould look at it, that they would naturally and immediately
assume that it is a Charles Phillip shoe.
THE COURT: Okay. Why don't I hear The Gap on this
then.
MS. BATES: Sure.
MR. WEINBERGER: Your Honor, I'll address the
16 secondary meaning point in a second. I just v1anted to make
17 sure I understand the basis for your I guess you said
18 you're leaning about the use of the Phillip. Is that on the
19 trademark claim or on the right of publicity claim because
20 there's -- there's kind of -- there are three different
21 claims asserted here. There's a trademark infringement claim
22 as to several marks; there's a design patent claim. And then
23 there's the right of publicity claim. so I Hanted to make
24 sure I understood
25
THE COURT: Well, let's go through all of them. I
#:1588
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1 haven't ruled definitively on that issue, but it seems to me
2 that if you -- if you have shoes that are substantially
3 similar, whether their shoe has acquired secondary meaning or
4 not, then you have the same one of the sort of key names
5 of the plaintiff in your shoe. Then to me, that's -- that's
6 a problem. And tle can talk about the various theories and --
7 and the different elements at this time, if you t1ish.
8 MR. WEINBERGER: Sure. Well, I guess the first
9 the first issue I 11anted to address before we get to the --
10 the specific issues on the merits is the question of
11 irreparable injury. The Court in denied the TRO for
12 failure to demonstrate irreparable injury. And I don't think
13 11e felt that the evidence that submitted in connection
14 t1ith this motion t/as meaningfully different -- was really any
15 different than the prior application. And so if the
16 plaintiff was unable to reparable injury at the TRO
17 stage, I'm not sure 11hy they VIOUld be able to now, simply
18 because they followed the regular notice motion schedule.
19 The only additional suggestion that 11as made in
20 really any of the papers substantively -- I kn011 there was
21 some different --
22 THE COURT: Part of the reason for that is I
23 get a TRO, I am interested in particularly -- or have open
24 questions making sure that I hear from the defendant. So it
25 doesn't necessarily reflect on the merits of their case.
#:1589
1
2
3
MR. \'lEINBERGER: I understand.
THE COURT: It's more of a due process issue.
MR. \'lEINBERGER: And I understand that, Judge.
4 The -- the concern we have particularly 11ith respect to the
5 Phillip name is that the plaintiff had its trademark and
6 publicity-related claims teed up in July when they 11rote
7 their demand letter. Ms. Bates and I had a back-and-forth
8 over several months, arguing about the substance of the
16
9 claims, making efforts to try and resolve the matter. It was
10 only when the design patents issued in October that they
11 filed suit. And we -- lle guessed l'lhen 1'/e put our TRO
12 response together that the decision to 11ait for the patents
13 to issue 1'/aS strategic because they believed to strengthen
14 their case. And, in fact, the plaintiff's counsel admitted
15 that. So they basically at the expense of the trademark
16 claim and of the right of publicity claims l'laited around.
17 That's Nell and good from a litigation perspective. If
18 that's the strategy you want to pursue, that's fine. But it
19 does undercut any argument that there is irreparable injury
20 on the tl'/o claim you waited around on. And 1'/e think the case
21 lal'l supports that.
22 THE COURT: In theory it may, but I don't -- I
23 can't understand any reasonable business justification for
24 putting the name "Phillip" on your shoes.
25 MR. \'lEINBERGER: Well, l'le'll address that, although
#:1590
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1 I'm not sure that my client's obligation is to prove a
2 reasonable justification. There are claims that can
3 involve the name, the trademark claim, and the right of
4 publicity claim. And I' 11 deal with them no11 specifically.
5 COURT: Well, I'm just well, your client
6 doesn't have do prove anything, but the name is on the shoe
7 and the shoes are --
8 MR. It is.
9 COURT: -- in many 11ays substantially similar.
10 And one of the Sleekcraft factors is intent. That would seem
11 to bear on that issue, even though intent is not always
12 regarded as a significant factor. It does say something.
13 And it raises questions.
14 MR. WEINBERGER: I understand, Your Honor. Let me
15 try to address them. In the first instance, 11ith respect to
16 the plaintiff's trademark claims, I'm not going to deal with
17 the striping yet. As to the names that are alleged to be
18 by the plaintiff Charles Phillip, CP Charles Phillip,
19 Charles Phillip Shanghai. Those are the names that are used
20 on their products. There was a threshold proof problem that
21 has been raised in our papers. The reply papers that 11ere
22 submitted kind of conflated the initial issue of market
23 penetration 11ith secondary meaning. Those are distinctive,
24 separate issues. The gist of it is this: Without a federal
25 trademark registration, it's the burden of the plaintiff to
#:1591
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1 sho11 that you're using the mark in commerce, And there is
2 laH that the market penetration law sets up basically hm1
3 you're supposed to go about doing that, because basically
4 what He're talking about is a claim to nationwide rights.
5 And all we have is an unsubstantiated claim of sales.
6 haven't
we don't Hhere the sales have allegedly
7 occurred; 11hen the sales allegedly occurred; whether they all
8 took place tHO years ago, whether they all took place this
9 year.
10
11
THE COURT: You mean their sales?
MR. WEINBERGER: Yes, yes.
12 THE COURT: We don
1
t know -- don't if they're
13 selling anything currently?
14 MR. WEINBERGER: No. I'm not saying that,
15 Your Honor. My suggestion is that the -- my point is, is
16 that the trademark la11s 11hen you don't have a federal
17 registration-- have no territorial presumption. So we don't
18 knoN v1here their sales have been, and they're only entitled
19 to rights and theoretically only entitled to injunction in
20 the jurisdictions they've established market
21 penetration -- sorry they're only entitled to rights and to
22 the possibility of injunctive relief in the jurisdictions
23 Nhere 11e 've -- where market penetration has been established.
24 And we simply don't have any information here. I'm not
25 suggesting that the products may or may not be available in
#:1592
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1 stores throughout the country. But Gap has stores in places
2 where Mr. Pozzi's shoes are not available. And there's been
3 no proof by the plaintiffs to say, Yeah, we've got sales in
4 Los Angeles. We've got sales in Nevi York, because without a
5 registration, they don't get that presumption.
6 And it's a leap to get to, Oh, they have trademark rights.
7 That's the burden of a plaintiff Hith a trademark
8 in a federal litigation.
9
THE COURT: Yeah, I'm not -- I'm not necessarily
10 buying that argument because people travel; people buy shoes
11 in different locations. You have markets that merge together
12 to some extent; you Many t.imes the Gap just
13 commonsensically is .in they're in department-- they're in
14 shopping centers vlhere there may be some higher-end stores,
15 You know, there .is nothing in the record that suggests -- I
16 don't want to speculate about it, but I'm not I'm having a
17 problem 1vi th the fact that the the name is on the shoe.
18
19
MR. WEINBERGER: No, I understand.
THE COUR'f: And, you the likelihood is, is
20 that they're going to get an injunction on that issue. So go
21 ahead,
22
MR. WEINBERGER: Well, I going to say v1as,
23 to the extent that that injunction 1-/ould issue from a
24 trademark basis, 1-1e don't believe that there's adequate proof
25 that the mark is used in commerce in the territories that
#:1593
20
1 they are claiming l'lhich is nationwide without any evidence of
2 sales other than Mr. Pozzi's self-serving declaration. So
3 that's the first
4 THE COURT: Isn't there evidence that their
5 products are in magazines that are sold nationally.
6 MR. WEINBERGER: Sure. But that doesn't establish
7 sales that they've taken --
8 THE COURT: Okay. Well, sure. It does establish
9 sales, but the magazines --
10
MR. WEINBERGER: It certainly suggests that the
11 sales -- that the products are available.
12 THE COURT: Yeah, sure.
13
MR. WEINBERGER: The -- the -- a large number of
14 the magazines \'/ere not American publications. So the idea
15 that they are as vlidely available as the plaintiffs claim, v1e
16 question that,
17 THE COURT: I think you're better off trying to
18 settle this aspect of the claim, you knol'l, because I don't
19 think you're going to succeed on the merits when the name is
20 essentially the same and the styles are essentially the same.
21 And, you kno\'1, I just don't see that happening. So then the
22 question is v1hat 's going to happen with the existing
23 inventory and \'/hat should I do? But let's talk about the
24 various theories. You've talked about the trademark
25 theories.
#:1594
21
1 MR. WEINBERGER: Well, I've talked about the
2 threshold question of proving that they have a trademark to
3 protect. Then there's a question of likelihood of confusion.
4 And while I certainly understand the court's concern and
5 skepticism about the presence of the name on the shoe, that
6 does not a n s ~ 1 e r the question of l'lhether consumers v10uld be
7 confused by virtue of the placement of that style name on the
8 product, meaning that l'le've been talking --
9 THE COURT: Well, but it may very well be an
10 attempt by The Gap, --but I'm not saying it is to dilute the
11 plaintiff's mark. I don't knol'l. There are all sorts of not
12 necessarily very good business reasons 11hy a company may
13 decide to do that. And I can understand their concern about
14 it. So 11e v1ere talking about the different types of
15 theories.
16 MR. WEINBERGER: Yeah. On the trademark theory, so
17 again, that we don't believe that they've established
18
19
proper they have common lavl rights on a natiom'lide basis.
The question of confusion, there has been a
20 conflation in the plaintiff's papers about shoes versus
21 trademarks and lines versus 11hat' s protectable. And as
22 Your Honor pointed out, there is no protection for fashion
23 design in the u.s. There -- 11ell, there is limited
24 protection. Copyright la11 provides involves limited
25 protection to trademark when you can sh011 source
#:1595
22
1 identification as provided in designed patents, but the --
2 the question of whether the shoes are substantially similar
3 to us is beside the point.
4 The question is vlhether my client's use of the
5 Phillip style designation -- Philip spelled differently than
6 the plaintiff's name is in of itself likely to cause
7 consumers to believe that there's an affiliation or a
8 sponsorship or an agreement, Many apparel companies do
9 indeed develop relationships vlith designers, and they will do
10 a collection by a particular designer. My client has done
11 this. Ms. Bates put that in her papers, But v1hen you do
12 that, you do that prominently. You do that to call attention
13 to the relationship with the designer. rhis use simply <'las
14 not commercially significant enough to make any decision
15 about anything for anyone. There's certainly no proof of
16 that in the record.
17
18
19
THE COURT: Okay.
MR. WEINBERGER: So I'm-- I'm
THE COURT: But the other side of the coin, is
20 they're supposed to do nothing, and your client continues to
21 write Phillip, Phillip, Phillip in increasingly larger
22 letters on their shoes that look substantially similar.
23 So -- I think the -- any<my, but go ahead. We 11ere going
24 through the elements.
25 MR. WEINBERGER: But my client -- but my client
#:1596
23
1 hasn't done that.
2
THE COURT: I know. I'm just talking in the
3 abstract.
4 MR. WEINBERGER: No, I understand. And with
5 respect to irreparable injury, my client has indicated -- and
6 \te' ve put in our papers that the product is no longer being
7 made. There is limited inventory.
8 'fHE COURT: Okay, Well, probably what I \WUld do
9 would be to give your client some period of time to dispose
10 of the inventory and order that your client maintain records,
11
MR. WEINBERGER: I understand. We still dispute
12 that the use of this name in any 11ay could cause confusion,
13 particularly in shoes that aren't the same as the plaintiff's
14 that don't have stripes at all.
15
THE COURT: No, I'm not conjoining you -- inclined
16 to enjoin you from selling the rest of them off. Based upon
17 your representation, they're no longer being made. So we can
18 reserve the issue of liability and damages for the future.
19 But at this point, I'm troubled by the name.
20 MR. WEINBERGER: No, I understand, Judge.
21
THE COURT: Okay.
22 MR. WEINBERGER: So we've -- we've -- I've briefly
23 addressed it. It's addressed in our papers why ~ / e don
1
t
24 think likelihood of confusion fits here even thought the name
25 is there -- even if you assumed intent, because you can't
#:1597
24
1 intentionally create -- if you -- if there's no confusion,
2 your intent is irrelevant, meaning -- and we've cited case
3 law for that.
4 On the right of publicity angle Nhich is the other
5 Nay in which the name gets in there, there has been no proof
6 by the plaintiff as the trademarks, that he's known by
7 the name Phillip; that it's his likeness or his name or his
8 identity that's been misappropriated and that
1
s the
9 California statute on right of publicity requires. It also
10 requires a commercially use in endorsement basically. And
11 that's not 11hat
1
s going on here. These issues are separate
12 from the trademark issues, but they have some bearing,
13 meaning that my client's use -- it did, whether you
14 like it or not, it didn't necessarily have any commercial
15 impact that had any bearing on anything.
16 I don't think there's any-- any evidence,
17 suggestion from the testimony that's been-- the declarations
18 that have been submitted by the plaintiff that anyone bought
19 the Gap shoe because Nhen you pulled it off the shelf and
20 then looked on the inside of the heel, it said "Phillip
21 moccasin." So Ne believe that's something that they Nould
22 need to sh011, because it's not simply, They did this. That's
23 the problem. It's the same issue with the stripes --
24 THE COURT: It's hard to understand Nhy it 11as
25 done. It raises serious questions. And I think that we
#:1598
1 probably talked about that enough.
2 MR. WEINBERGER: I understand, Judge.
3
4
THE COURT: Okay.
MR. WEINBERGER: So the only other issue that I
25
5 don't think has been addressed, we contest -- the plaintiff's
6 contentions on secondary meaning, I think we've -- you've
7 expressed the same concerns that 11e have. On the design
8 patent claims, those haven't been addressed at all. We feel
9 we made very strong arguments on validity; that the trademark
10 applications covered the same subject matter as the design
11 patents. They 11eren't disclosed to the patent office.
12 They're effectively self-invalidating conduct. And 11e don't
13 think there's any basis for design patent infringement claim
14 on that basis.
15 THE COURT: Could I see the two shoes that 11ere.
16 just -- you said you just purchased some shoes 11i th name in
17 them?
18
19
20
MS. BATES: Yes.
THE COURT: Could I just see them.
Okay. Just looking at one of the exhibits. It's a
21 Gap shoe. On the inside right portion, it says "Phillip
22 slipper." Okay. I see that. Are these other --
23 MR. WEINBERGER: 'fhose are additional shoes, The
24 one there, actually doesn't say "Phillip." It says "Philli,"
25 11ithout a P at the end,
#:1599
1
2
THE COURT: Okay.
MR. WEINBERGER: But our -- our position,
3 regardless is
4 THE COURT: Okay. All right.
26
5 MR. WEINBERGER: Our position regardless is -- and
6 I understand the Court's concern about the presence of the
7 name on the product, but that doesn't make it actionable. I
8 think been -- our papers clearly indicate this. And
9 that combined with the delay on this specific claim v1hich --
10 which they chose to wait in the weeds on until their -- in
11 their belief their case was strengthened makes this
12 insufficient for justifying injunctive relief at a
13 preliminary stage.
14
15
16
THE COURT: Okay. Thank you.
Anything further?
MS. BATES: Your Honor, He didn't Hait too long on
17 this case regard to this. We didn't realize -- or at
18 least I didn't realize as counsel that "Phillip" was stamped
19 on -- and used v1ithin their shoe until long into
20 negotiations, I believe it a month into negotiations
21 before vie realized that it was stamped inside the shoe. The
22 initial letter that I sent you did not mention the Phillip
23 name and then \'le started talking more --
24 MR. WEINBERGER: That may be the case, but that
25 begs the question of what \'las such a big -- Hhat the
#:1600
27
1 problem? If it 11as sitting there --
2 THE COURT: Ho11 much time does your client need to
3 sell the inventory?
4 MR. I think at least two months, not
5 because there is two months 11orth of product sitting around,
6 but because --
7 THE COURT: I'm just asking,
8 MR. WEINBERGER: Yeah. I 11ould think t11o to
9 three months to make sure that things trickle. The problem
10 is this client 11ith the magnitude; the breath of the -- of
11 where the products are available and its ability to know
12 where they are as of now. I say two to three months.
13 THE COURT: Well, I would guess that it has pretty
14 good inventory control.
15 MS. BATES: Your Honor, 11e would ask that the shoes
16 actually be pulled as soon as possible, simply because
17 provided evidence that Charles Phillips distributors are
18 pulling out. They are pulling out. He's been
19 significantly -- in significant decline since Gap has been
20 selling the Phillip shoes.
21 THE COURT: Well, that may be for other reasons.
22 That may be for other reasons. It may be because your
23 clients designs are copied because these companies feel there
24 isn't sufficient secondary meaning.
25 MS. BATES: Well, would ask that the shoes --
#:1601
28
1 that they not be given a significant amount of time to sell
2 all the shoes, because it is damaging to my client, and so we
3 would request that this Court at least asks them to be pulled
4 1ithin a reasonable period of time,
5 THE COURT: Well, that's what I'm going to do.
6 MR. To the extent that there's any
7 any injunction issued, is that to extend to shoes that have
8 no stripes?
9 THE COURT: I'm only dealing v1ith the name issue.
10 MR. WEINBERGER: So it's to the extent to shoes
11 that don't have the internal --
12
THE COURT: The injunction v1ould simply enjoin the
13 Gap from selling shoes v1here the name Phillip or some
14 variation of it is stamped on the shoe or present on the
15 shoe.
16 MR. WEINBERGER: Well, any type of shoe or simply
17 these types of --
18 'fHE COURT: I don't knov1 of any other type of shoe.
19 MR. WEINBERGER: Nor do I. But my point is my
20 client makes a substantial amount of products that
21 THE COURT: Well, any type of shoe which is
22 substantially similar to the plaintiff's shoes.
23 MR. WEINBERGER: Well, Your Honor, 11e respectfully
24 disagree Hith that. I suspect --
25 THE COURT: Do you have other shoes Hith "Phillip"
#:1602
1
2
on it?
MR. WEINBERGER: I don't believe so, but I don't
3 know that any injunction obtained in this case affect
4 that one l<ay or the other, meaning if I
29
5 THB COUR'f: it that's why I'm trying
6 to be narrol<.
7
8
MR. WEINBERGER: No, I understand.
THB COURT: I'm trying to deal with the shoes that
9 are substantially similar.
10
MR. WBINBERGBR: Right, I understand. My question
11 was, "Does substantially similar" extend to shoes that don't
12 contain stripes, which Ms. Bates has indicated is their
13 client's primary source identifier?
14 THE COURT: l'lell
1
I -- I indicated that I wasn
1
t
15 particularly taken 1vith the argument that the stripes were a
16 sufficient identifier for purposes of a preliminary
17 injunction.
18
19
MR. WEINBERGER: Right. I understand.
THB COURT: I'm not considering the stripes issue.
20 I'm just looking at substantial similarity in saying that the
21 plaintiff appears to have some portion of the market for this
22 type of shoe, They sell at least in the hundreds of
23 thousands of pairs of shoes; right?
24 MR. \'IBINBERGER: They sold 37,000 pairs of shoes in
2 5 t1w years.
#:1603
1
2
3
4
THE COURT: I thought it was 115,000.
MR. WEINBERGER: $1.2 million in sales.
THE COURT: Let me ask. Do you recall?
MS. BATES: I don't recall, Your Honor. I don't
5 11ant to mislead the Court, It's in the papers , It v1as not
6 $37,000. It's much more than that.
7
MR. WEINBERGER: Mr. Pozzi's --and this is the
30
8 reason, Your Honor, 11hy we feel so strongly about the market
9 penetration theory. We're talking about an extremely low
10 amount of sales. Page six of Mr. Pozzi's declaration -- this
11 was the one submitted with the temporary restraining order,
12 paragraph nine, "In the tviO years that the Charles Phillip
13 loafers have been available in the united States, we have
14 experienced 1.2 million in sales -- sales of almost 37,000
15 shoes.
16
THE COURT: Okay.
17 MR. WEINBERGER: And we just don't think that
18 that's sufficient, particularly where we've gotten no
19 indication --
20
THE COURT: I'm still troubled by the fact that Gap
21 puts its name on a -- what appears to be a fairly 11ell knm-m
22 fashion shoe. We've already talked about it.
23 MR. WEINBERGER: We respectfully disagree,
24 Your Honor.
25
THE COURT: Well, then you're telling me that Gap
#:1604
31
1 is going to continue to put the name "Phillip" on these
2 shoes,
3 MR. WEINBERGER: No, absolutely not, Judge, ~ l e
4 the product -- the product -- the sales 1vith the -- sorry
5 excuse me. The manufacturer of shoes Nith the Phillip stamp
6 have stopped. And I can't say anything more than that. We
7 have stopped doing it. So I'm not even sure that there's a
8 basis for an argument that there's irreparable injury when
9 the product had stopped being made two months ago, I'm
10 1-1illing to represent that my client 1/ill agree to stop doing
11 it on these shoes. Under those circumstances, I'm not sure
12 that an injunction is justified,
13 THE COURT: Well, but 1-1hat you're suggesting is
14 that you 11ould file a representation and a declaration under
15 penalty of perjury by your client, indicating it is no longer
16 manufacturing any shoes that bear the name "Phillip" or any
17 name that is substantially similar to "Phillip" and that it
18 11ill maintain all records relating to the sale of any shoes
19 that are substantially similar to the plaintiff's shoes that
20 have the name "Phillip" on them.
21 MR. WEINBERGER: I can check 1-li th my client. I
22 imagine there would be no reason not to do that.
23 THE COURT: Okay. Well, \lhy don't you let me know
2 4 right m1ay.
25 MR. WEINBERGER: I \vill,
#:1605
32
1
THE COURT: And then I
1
ll consider \ ~ h e t h e r , given
2 the fact they're no longer being sold, that's sufficient in
3 lieu of
4
MS. BATES: They're being sold, Your Honor.
5 THE COURT: Manufactured in lieu of an injunction.
6 So v1hy don't you do that.
7 MR. WEINBERGER: Thank you.
8 THE COURT: Okay.
9 MR. !'lEINBERGER: How should we communicate that to
10 the Court?
11 THE COURT: Just through the clerk.
12 MR. WEINBERGER: Okay.
13 THE COURT: You could do it in the form of -- you
14 could simply submit the declaration.
15 THE WITNESS: I understand. If I'm going to do it
16 immediately, I'm not sure I'm able to -- I have to travel
17 back to Ne11 York.
18
THE COURT: Okay. Well, how about by Friday?
19 MR. WEINBERGER: That's fine, Judge.
20 THE CLERK: So procedurally, Counsel, if you could
21 file that declaration or contact me.
22 THE COURT: Well, you'll either file it or you
23 won't. If you don't, then I'll assume that you're not going
24
25
to.
MR. \'lEINBERGER: That's fine.
#:1606
33
1
MS. BATES: And, Your Honor, 11e 11ould just ask the
2 Court again to put some sort of time limit on the sell-off
3 period, just so we kno11 that these shoes are not going to be
4 lingering for years to come. At a minimum -- I mean, Gap is
5 a huge, huge --
6 THE COURT: They'll sell them all within 90 days.
7 Put that in your declaration too. Okay. Thank you.
8 MS. BATES: Thank you, Your Honor.
9 (Whereupon proceeding adjourned.)
10 - - -
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
#:1607
34
1 C E R T I F I C A T E
2
3
4
5 JUMBO BRIGHT TRADING LIMIT8D
6 vs. No. CV 12-08932-DDP
7 TH8 GAP, INC.
8
9
10 I, MARIA BUSTILLOS, OFFICIAL COURT REPORTER, IN AND FOR THE
11 UNITED STATES DISTRICT COURT FOR THE CENTRAL DISTRICT OF
12 CALIFORNIA, DO HER8BY CERTIFY THA'l' PURSUANT TO SECTION 753
1
13 TITL8 28, UNITED STATES CODE, THE FOREGOING IS A TRUE AND
14 CORRECT TRANSCRIPT OF TH8 STENOGRAPHICALLY REPORTED
15 PROCEEDINGS HELD IN THE ABOVE-ENTITLED MATTER AND THAT THE
16 TRANSCRIPT PAGE FORMAT IS IN CONFORMANCE WITH THE REGULATIONS
17 OF THE JUDICIAL CONF8RENC8 OF 'rHE UNITED STATES.
18 F8ES CHARGED FOR THIS TRANSCRIPT, LESS ANY CIRCUIT FEE
19 REDUCTION AND/OR DEPOSIT, ARE IN CONFORMANCE WITH TH8
20 REGULATIONS OF THE JUDICIAL CONFERENCE OF THE UNITED STATES.
21
22
23
24
25
MARIA R. BUSTILLOS
OFFICIAL REPORTER
12/06/2012
DATI':
#:1608
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companyt21 9:21,
24:15 14:11. 17:18. 17:10, 21:12
866(1) 2:11 answer(1J- 21:6
beaullful111- 5:25
866)701-0404(11 2:7 ANY(1J 34:18
27:17, 30:12
concern (41 -16:4,
became (tJ -12:24 check (11 31:21 21:4,21:13,26:6
#:1609
concornsf2J 6:4,
25:16,26:19, 28:1, design (ij 7:20, enjoin 121 23:16, flrm121 4:16,4:21
J
25:7
26:4, 26:14, 27:2, 14:22,16:10,21:23, 26:12 first rer. 5:25, 11:2,
conduct{1J- 25:12
27:7,27:13,27:21, 26:7, 25:10, 26:13 enUrOf2)- 8:5, 13:19 16:8, 15:9, 17:16.
CONFERENCE 121
28:5, 28:9, 28:12, deslgnaHonr11 22:5 ENTITLED 111 34:16 20:3
34:17, 34:20
28:18, 28:21, 28:26, doslgned rr 22:1 entllled 1'1 -18:18,
Flrst(2J 9:20, 9:21
conllaled 111 -17:22
29:6, 29:8, 29:14, deslgnert21 22:10. 18:19,18:21 fils rr 23:24
conflalfon 111- 21:20
29:19, 30:1, 30:3, 22:13 ESQ!21 2:11, 2:16 fiV0(2J 5:1, 5:2
CONFORMANCEJ2l
30:16, 30:20, 30:25, dosfgners(tJ- 22:9 essontlatry {41 - 7:20, FLOOR!>I 2:12,
34:16, 34:19
31:13,31:23,32:1,
deslgnsl3111:19, 12:16, 20:20 2:16
confused (2J- 9:17,
32:6,32:8,32:11,
11:21,27:23 eslabllsh 141 9:2, followed 11 15:18
21:7
32:13,32:18, 32:22,
doslstrl12:2 9:6, 20:6, 20:8 FOR (OJ 1:16, 3:4,
confusion (6J 21:3,
33:6, 34:10, 34:11
davelor> 131 7:8,
established [41- 7:6, 34:10,34:11,34:18
21:19, 23:12, 23:24,
Court{aJ- 5:21, 8:6.
7:21,22:9 18:20, 18:23, 21:17 FOREGOING ill
24:1
9:14, 15:11,28:3,
davaloplngr1J 8:22 evfdance raJ- 7:5, 34:13
conJoining 111- 23:15
30:5, 32:10, 33:2
DIETZ 111 2:15
11:18,12:22,16:13, form 111 32:13
connecUonJ1J- 16;13
Court's(21 21:4, 28:6
dlfforont rer -13:7.
20:1,20:4,24:16, FDRMAT!1J34:16
conslder(tJ- 32:1
COURTHOUSE!!(
14:20, 16:7, 15:14,
27:17 former{IJ 4:17
conslderlng(tl
1:22
15:16, 15:21, 19:11, examplo 111- 12:22 forth (1)16:7
29:19
covered UJ- 25:10
21:14 examp!OS(2J-7:15, foUI(21 4:4, 12:21
conslstency(1)-11:8
CP 111 17:18 dlfferantlatfng(1J- 11:23 Frldayj!J 32:18
consls!ent(SJ-11:9,
create 111- 24:1
13:?.2
excluslvely(2J 10:7, Fross{11- 4:12
12:19, 12:24
CVJ3J 1:10, 4:4, 34:6
22;5 10:15 FROSS 111 2:9
conslstantly(11-
dlh!I0(11 21:10 excuse(1J- 31:6 future til 23:16
13:15 D dfrecfort3J. 9:20, exhlllliS!IJ- 25:20
consumert2J 6:24,
9:23,10:3 exlsllng 111 20:22
G
13:4
damages{fJ- 23:18
disagrea[2J- 28:24, expenso{1J-16:15
consumerstSJ -14:8,
damaging 111 28:2
30:23 experlencatu -10:13
21:6,22:7
darkei(3J11:7,
disclose 111 5:3 experlencod{1J-
GAP!3J 1:12, 2:9,
contacfttl- 32:21
ctlsclosed{ll 25:11 30:14
34:7
11:13,13:13
contain (21- 6:7,
DATE 111 34:23
d(S(l0Sa(1J 23:9 export !1l 8:25
GapJ19J 4:5, 4:13,
29:12
David 111 4:20
dlspulo rr 23:11 experts 111- 9:4
6:2,6:5, 7:2, 7:3,
contenUons(H- 25:6 dlsllnct{!J 13:10 exports' 111 14:5
13:18, 14:12, 19:1,
contest (1]- 25:5
daysJ31- 6:8, 8:7,
dlstlncllveJJ 17:23
exprossed 111- 25:7
19:12, 21:10, 24:19,
contlnue[tJ- 31:1
33:6
dlstfncttvenesst2J- extend 121- 28:7,
25:21, 27:19. ?.8:13,
conthmes {1J - 22:20
doal!3!17:4,17:16,
6:22,7:7 29:11
30:20, 30:25, 33:4
controlrH- 27:14
29:8
distributors 111 extant 11 13:5,
generalt1!10:19
copied J>J. 7:1, 27:23
dealing (11 28:9
27:17
19:12, 19:23, 28:6,
generally 111 5:23
-14:2, 14:3
DEANt111:5
DISTRICT(5!1:1, 28:10
GEORGIA111 2:6
copying Ill 6:21
DECEMBERt2!1:18,
1:2,1:5,34:11 exteros ttl- 6:6
gist 111 17:24
copyright111. 21:24
4:1
DIVISION [11 -1:3 exlremely111 30:9
given 121- 28:1, 32:1
CORRECT[!! 34:14
declda(!J 21:13
0011! 34:12
gran1121 6:5,6:20
Cosmo [1J - 9:22
decision 121- 16:12,
documents f11- 5:19 F
guOS${3(14:17,
22:14 16:8,27:13
counsel (3J- 4:6,
declarauon lOJ - 20:2,
donet3J- 22:10, 23:1,
guessod(tl-16:11
16:14, 26:18
30:10, 31:14.32:14,
24:26
fabrics (11-13:23
Counsel!!. 32:20
32:21,33:7
dOWI1(1(12:26
raclt51 5:3, 16:14.
H
country(tJ-19:1
dec!aratlons{tl-
dozens ttl- 7:15
19:17, 30;20, 32:2
coupler! 11:2
24:17
drawnrtJ-11:5
faclor{1J17:12

decllno(11 27:19
drOSS(1]9;25
faclorstl-17:10
hard I4J 7:8, 7:21,
1:21,4:3,4:7,4:10.
deemed(1) 9:5
dU0(1(16:2
failure (II -15:12
13:21,24:24
4:16,4:21,4:24,6:2,
dafendanlr>J 4:13, falrlyrr- 30:21
Harper's[tJ- 9:22
5:8, 5;11, 5:14,6:16,
15:24
E
fashion (5J -10:1,
hear{4J 5:17, 13:11,
5:22, 5:26, 6:4,6:10,
DEFENDANTS ill 10:9, 10:13, 21:22,
14:12, 16:24
6:15. 7:14,8:1. 8:9,
2:9
effacllvaly(IJ 25:12
30:22
Haars!t41 9:23, 9:24,
8:12,8:16,8:18,9:7,
defendants[2J- 7:14,
efforts 111 16.9
fashlonabla(11 9:26
10:3,14:8
9:11,9:16,10:16,
11:22
eight 111 5:1
federai(3J 17:24,
heal 121 11:5, 24:20
10:19, 10:22, 10:26,
Defendants ttl -1:13
HELD {11 34:16
11:11.11:20,12:3.
ollhenr 32:22
18:16, 19:8
12:12, 13:25, 14:2,
doflnlllvely(ll 16:1
elements 121. 15:7.
FEE(ll 34:18
halpfui(!J 5:22
14:12, 14:26, 15:22,
DEKALB!II 2:6
22:24
FEES (!J 34:18
HEREBY til. 34:12
16:2, 16:22,17:5,
delay (!J 26:9
Ello 111 9:22
felt[tJ -15:13
hl9h9r(1J -19:14
17:9, 18:10, 18:12,
demand 11116:7
emanated (IJ - 6:24
FIGUEORAt11 2:16
hlgher.endt11 19:14
19:9, 19:19, 20:4,
demonstrate {1J
endr>l-19:14, 25:25
llle{3J 31:14,32:21,
hlghllgh!S(1) 6:19
20:6.20:12,20:17,
15:12

32:22
h!f(ll 5:19
21:9, 22:17, 22:19,
danledt1!16:11
24:10
lllod{1!16:11
Honoq271 5:7, 5:15,
23:2, 23:8,23:16,
dopartmontt1!19:13
ends[tJ11:4
flnat4J. 5:14, 16:18,
5:18, 5:24,8:8,6:11.
23:21,24:24,26:3,
DEPOSIT(IJ 34:19
energy(tl- 8:22
32:19, 32:25
7:13, 8:11, 8:14,
#:1610
37
1 justifying 111- 26:12 location (1J- 10:20 30:14
10:24,11:1, 11:12, 15:12,15:16, 16:19.
locatfons 111 19:11 mlndslti-13:4
11:22,13:11, 14:15, 23:5,31:6
17:14,16:15,21:22, luner(tl- 7:12
K
12:9 minimum ttl- $3:4
26:16,27:15,28:23, h1sert111- 7:12
look(0(-7:1, 9:10, misapproprlatad11-
12:19, 14:10, 22:22 24:8 30:4, 30:8, 30:24, luslde(91- 7:4, 7:16,
keYIII-15:4
lookod 121- 7:11,
mlsload 111- 30:6
32:4, 33:1' 33:8 7:17,11:15, 13:16,
kind PI -11:5, 14:20,
24:20 moccasin 111- 24:21
HONORABLEJII-1:5 13:21,24:20,25:21,
17:22
lookitt913J -13:4, modei{H-10:9 huge 121 - 33:5 26:21
known 121- 24:6,
26:20, 29:20 MONOAYI2J -1:18,
hundreds (11- 29:22 lnsolaltl- 8:24
30:21
LOSI4i1:17, 1:24, 4:1
Instance 111 -17:16
2:17,4:1 money(1J- 8:22
I
htsufflcient 111- 26:12
L
Los(tJ-19:4 month 111 - 26:20 Jntent{4J -17:10,
Louboutltti2J- 9:4, months (DJ -16:8, 17:11,23:25,24:2
12:9 27:4, 27:5, 27:9,
ldoaJtJ- 20:14
hllontlonallyitl- 24:1
JabollngJIJ- 6:1
low 111 - 30:0
27:12,31:9
ldantlcai(IJ-13:6
Jnloresledlll-15:23
large(2J- 7:4,20:13
mornin{J[2J -4:10,
idenllflablo 111-10:6
inlernal(tJ- 28:11
1argor111- 22:21
M
4:11
fdentlficatlon(1)-
International 161-
lasi(IJ- 4:22
motlf(IJ-13:2
22:1
9:20,9:21,9:23,
lawlt3J- 4:17,4:18,
motlon{2J-15:14,
ldenllflod JIJ-14:7
9:24,10:4
4:21,5:5,5:9,6:21,
MacKenzle(tJ- 4:18
15:18
ldenllflori12J- 7:3,
Invalidating 111-
16:21, 18:2, 19:7,
magazine 111 -14:8
MOTION 12!1:16, 3:4
7:8, 7:10, 7:22, 9:6,
25:12
21:18, 21:24, 24:3
magazhws (3J- 20:5,
MR ISS!- 4:12, 6:11,
10:11,12:14,13:10,
Inventory (7] - 6:6,
laws IIJ-18:16
20:9,20:14
6:13, 11:1,14:15,
14:7, 14:9,29:13,
6:12, 20:23, 23:7,
leaning IIJ-14:18
magnlluda(tJ 27:10
15:8, 16:1. 16:3,
29:16
23:10, 27:3, 27:14
leap(IJ-19:6
maintain 121-23:10,
17:8, 17:14,18:11.
l<lenlllles 111-10:1
(1\VOIVB(IJ -17:3
leasi(OJ-7:17, 26:18,
31:18
18:14, 19:18, 19:22,
tdenllfy(IJ- 13:16
Involvest1J- 21:24
27:4, 28:3, 29:22
manufactured (3J-
20:6. 20:10, 20:13,
ldenllty 111- 24:8
frrafavant ttl- 24:2
tellt2J- 6:13, 6:14
6:12, 8:13,32:5
21:1,21:16,22:18.
Jmaslna(IJ- 31:22
lrreparabfeiOJ-15:11,
legtllmale 111- 6:16
manufacfurer(tl-
22:25,23:4,23:11,
1mmedlalely121-
15:12, 16:19,23:6,
Loft ram 111-4:13
31:5
23:20, 23:22, 25:2,
14:10, 32:16
31:6
LEHRMAN(IJ- 2:9
manuracturing(1J-
2&.4, 25:23, 26:2,
Jmpacl(ll- 24:15
IS 121-34:13, 34:16
Lesllelt)-4:15
31:16
26:5, 26:24, 27:4, lmportant(IJ- 5:12
Jssue(t5J- 6:19, 6:20,
LESLIE 111- 2:14
MARIAI3J- 1:21,
27:6, 26:6, 28:10, lmportaniiYIIJ-13:18
16:1,15:0,16:2,
LESS!IJ- 34:18
34:10, 34:23
28:16, 28:19, 28:23, IN 1s1- 4:3, 34:10,
16:13,17:11,17:22.
letler(IJ- 9:24, 10:4,
Marie 111- 9:22
29:2, 29:7, 29:10, 34:15, 34:16, 34:19
19:20, 19:23, 23:18,
10:8, 10:12, 16:7,
markiJ-18:1,19:25, 29:18, 29:24, 30:2, INCJ3J-1:12, 2:9,
24:23, 25:4, 26:0,
26:22
21:11
30:7. 30:17, 30:23, 34:7
29:19
letters (tOJ- 7:4, 9:1,
markel m- 6:14, 31:3,31:21,31:25, lncllnedi2J- 6:19,
lssued(2J-16:10,
9:2. 9:3, 9:12, 9:19,
17:22, 18:2,18:20,
32:7, 32:9, 32:12, 23:15
28:7
12:2,12:17,14:6,
18:23,29:21,30:8 32:19, 32:25 Increasingly 111 -
fssUOS(4)-16:10,
22:22
marko!SJIJ-19:11 MSIJn- 4:6,4:11, 22:21
17:24, 24:11.24:12
llaltllllyiiJ- 23:18
marks(IJ-14:22 5:7, 5:9, 6:13, 5:15, Indeed ltl- 22:9
llem 111- 4:4
llou f2J- 32:3, 32:5
MAITER(IJ- 34:15 6:18, 6:24, 6:3, 6:8,
lndlcalelll- 26:8
llself 111- 22:6
llgh(J1J-11:6
mallerJ2J-16:9, 7:13, 7:25,8:2,8:11,
indicated !41- 6:5,
likelihood I!- 7:19,
25:10 8:16, 6:19, 9:9, 9:13, 23:5, 29:12, 29:14
J
12:15. 13:9, 19:19,
7:21, 9:24, 9:16, 10:18,10:21,
lndfcallng 111- 31:15
21:3,23:24
11:7, 13:12,18:10, 10:24, 11:12,11:22,
lndlcallon 111- 30:19
llkolyi3J- 6:5,6:15,
33:4 12:5,13:11,14:1,
lnduslry m- 9:5,
JamesuJ- 4:12
22:6
meaning f16J- 6:23, 14:3, 14:14.25:18,
10:3,18:13,11:24, JAMES ill- 2:10
likeness ttl- 24:7
6:20,9:2,10:11, 26:16, 27:16, 27:25,
12:7,12:17,12:18 Jeanetle111- 9:19
llmlllll- 33:2
10:14, 12:13, 14:16, 30:4, 32:4, 33:1,
lnformaUon UJ- Joltnson ltl- 4:20
Llmlted111- 4:5
15:3,17:23,21:8, 33:8
18:24 Judge(SJ-16:3,
LIMITED(3J-1:7, 2:5,
24:2,24:13,25:6,
Infringement 121-
23:20,25:2, 31:3,
34:5
27:24,29:4
N 14:21, 5:13
32:19
llmlled i<J- 6:12,
meanlngfully11
lnlllali2J- 17:22,
JUOGE!IJ-1:5
21:23, 21:24, 23:7
15:14
namal>ll- 6:1,6:7,
26:22 JUDICIAL 121- 34:17,
Jlne(3J- 8:6, 11:5,
mention 111- 26:22
6:17, 8:3, 8:4, 16:5,
Injunction 1131-6:5,
34:20
13:19
mergeiiJ-19:11
16:24, 17:3,17:6,
6:20, 7:18, 12:16. JUIYIIJ-16:6
lh1es 111- 21:21
merllsiSJ- 7:19.
19:17, 20:19, 21:5,
18:19,19:20, 19:23, Jumbo121- 4:5,4:9
llngorlng 111- 33:4
12:16, 15:10, 16:25,
21:7,22:6,23:12,
28:7, 28:12, 20:3. JUMB0(3J-1:7, 2:4,
Jlnittg(2J-7:12, 7:16
20:19
23:19, 23:24, 24:5,
29:17, 31:12, 32:5 34:6
llsled(IJ- 4:17
met ill 7:18
24:7, 25:16, 26:7.
INJUNCTIONJ2J- jurisdlctlollSf:2J-
llllgatlont2J-16:17,
MICHAEL ill- 2:16
26:23, 28:9, 28:13,
1:16,3:4 18:20, 18:22
19:6
Mlchaei(IJ- 4:14
30:21,31:1.31:16,
lnjuncllve(2J- 18:22, Justification 121-
LLCitJ-2:4
mlghti2J- 4:18,13:5
31:17,31:20
26:12 16:23, 17:2
loafors (II- 30:13
million 121- 30:2, lnjurytoJ-15:11, )usllffediiJ- 31:12
#:1611
nameS{3J -15:4,
23:6, 23:23, 26:8, 28:19 pub!lcallons (IJ
4
regls!ralfoll[3J-
38
1
17:17,17:19 30:5 polnled!ll- 21:22 20:14
17:26, 18:17, 19:6
narrow 11J 29:6
paragraph {11- 30:12 portlont2J- 25:21, publlci!y(7] -14:19, rcgular(l! -15:18
nallonally(l!- 20:6
part(r(-16:22 29:21 14:23,16:6,16:16, REGULATIONS(2!
NATIONS(l(-2:11 partlcular(2!- 12:23, position 121 26:2,
17:4, 24:4, 24:9 34:16,34:20
natlonwlde(4J -18:4,
22:10 26:6
publlclly-relaled(lf relaled(1!16:6
19:5,20:1,21:18 partlculariYIGI- 6:17,
possibility (1(-18:22 16:6 rolallng 111-31:18
naturally(t) -14:10
16:23, 16:4, 23:13, possible 111- 27:16
publishes(1J - 9:22 rola!lonshlpf1J-

29:15, 30:18 Pozzi'S{4J -19:2, publishing (<J 9:20, 22:13
15:25,19:9,21:12,
)>alent(<) -14:22, 20:2,30:7,30:10
9:21, 9:23, 10:3 relatlonshlpsf1J-
24:14
25:8,25:11,25:13 PREGERSON 11- 1:5
pulled(3! 24:19, 22:9
need (21- 24:22, 27:2
palen(SI<J -16:10, prelfmlnarlly(tJ
4
7:16
27:16,28:3 relief2(.18:22,
nogollatlons{2J-
16:12, 22:1, 25:11 preliminary(<! 6:20,
pulling 121-27:16 26:12
26:20
PG(lf 2:10 12:16. 26:13, 29:16
purchased 111- 25:16 remlnder12J- 9:19,
nevertholoss 11 -
penallY Ill 31:15 PRELIMINARYI21 purposes(2J
4
7:18, 9:21
12:16 pendlngtl! -11:17 1:16,3:4 29:16 reparablefiJ- 15:16
NEW(2! 2:12
penetration [6J- promlse(tJ- 5:20
PURsUANT(!( reply(l{-17:21
NeW(3! 4:13, 19:4,
17:23,18:2,18:21. presancat2J- 21:6, 34:12 RePORTeD Ill
32:17
18:23,30:9 26:6 pursuettJ-16:18 34:14
NlkO(lJ-7:9
people(8! 9:4, presenl(l! 28:14
putm-12:21,16:11, REPORTER(3(1:21,
nine(!(- 30:12
12:17, 12:16, 12:21, PRESJDING(1(1:5
22:11,23:6,31:1, 31:10, 34:23
NORTH 111 1:23
13:18, 14:9,19:10 presumpttonf2l-
33:2,33:7 REPORTER'S 111-
nothing 121 -19:15,
perhaps(tJ- 6:1 18:17,19:5
puis 111- 30:21 1:15
22:20
period 131- 23:9. 26:4, prolty121- 7:3,27:13 pulling 111-16:24 ropresenl(ll 31:10
nollce(1(-15:18
33:3 prlmary111- 29:13
represonfatlon {2J
nollced111- 4:16
perjury(!]- 31:15 prlnltll 6:2 Q 23:17. 31:14
numbOt(3J 10:17,
perspective {lJ -
request[1J 28:3
10:22, 20:13
16:17 17:20,19:17,24:23,
questions (JJ -15:24,
requirements 111-
Pl>lllt>lll 22:5 27:1,27:9
12:15
0
Phlllltll 25:24 procedurallY Ill
17:13, 24:25
roquJrest2J 24:9,
4:9,6:1, 32:20
quo1e111- 8:10
24:10
6:7, 6:17, 8:3, 8:5, proceeding 111 33:9
R
reserv0111 23:18
ol>llgallon (1)-17:1
10:6, 10:7,10:10, PROGEEDINGS(2f
resolve)r(-16:9
obtained 111- 29:3
12:1, 13:17. 13:19, 1:15,34:15
respect {3(16:4,
obviously 121- 8:3,
14:11,14:18, 16:5,
process (lJ 16:2
raised ll!-17:21
17:15,23:5
8:21
16:24,17:18, 17:19,
PROGTORI11- 2:14
rtliSCS!2J-17:13,
respected ill 12:18
occurred (2J 18:7
22:6,22:21,24:7,
producf[12J- 6:11, 24:25
respeclfully(>(
October{tJ-16:10
24:20, 25:21, 25:24,
6:13,6:23,11:10.
reacted 111- 5:23
28:23, 30:23
OF 110)-1:2,1:15, 26:18, 26:22, 27:20,
21:8,23:6,26:7,
reaii<Wi 26:17,
responsort!-16:12
2:4,2:9,34:11, 28:13, 28:25, 30:12,
27:5,31:4,31:9
26:18
rost111- 23:16
34:14, 34:17, 34:20 31:1,31:6,31:16,
produciS(0!-17:20,
realized 111- 26:21
restrainlng(1J- 30;11
office Ill 25:11 31:17. 31:20
18:25, 20:5, 20:11.
really(<! 6:10, 11:24,
result ill 9:11
OFFICIALJ3!-1:21, Phillips 111- 27:17
27:11,28:20
15:14, 15:20
rlgh(S(SJ-18:4,
34:10, 34:23 plnstrlpo J3J 10:5,
prohlbll!tJ- 6:21
reason !5J- 6:16.
18:19, 18:21, 19:6,
ON (2J 2:4, 2:9 11:6,11:7
prominent{!)- 7:3
6:21,15:22,30:8,
21:18
0110(8(- 4:16, 4:22, plnslrlpes{4J- 10:9.
Jlromlnonffy (tJ- 31:22
ROOMI!J-1:23
15:4, 17:10, 25:20, 11:14, 13:13, 13:14
22:12
reasonablet3J-
Rolh 11 4:14
25:24, 29:4, 30:11 place(2!18:8
prooflij -17:20, 19:3,
16:23,17:2,28:4
ROTH ilJ-2:15
ones 121 7:2, 7:9 placomenf (1} 21:7
19:24, 22:15, 24:5
reasonspJ- 21:12,
rulod (1!-15:1
OJlGilfiJ 15:23 placesJll-19:1
proper(!! 21:18
27:21, 27:22
order[>! 23:10. plalntlfftl11- 4:9,
proposlllon 121-
record[2J -19:15, s
30:11 6:17, 15:5, 15:16,
13:12,14:4
22:16
Orlando 121- 6:9, 8:8 16:5,17:18,17:25,
protecl(lJ- 21:3
recordS2J- 23:10,
outslde(lJ7:16 19:7, 24:6, 24:18,
proleclable 111-21:21 31:18
sale(2! 6:6, 31:18
17:18 29:21
protection [3J 21:22,
red(2!12:10,12:11
sales(l6!16:5,18:5,
plalnilffs(e!-16:14,
21:24, 21:25
REDUCTION(r!
18:7,16:10,18:18,
p 17:16, 21:11, 21:20,
provel2!-17:1.17:6
34:19
19:3,19:4,20:2,
22:6, 23:13, 2M,
provided 7:14. roforenco (tJ- 6:9
20:7,20:9.20:11,
28:22, 31:19
6:25, 9:1, 9:3, 9:19,
reflect(!J-15:25
30:2, 30:19, 30:14,
P.M(r(-4:3
plalnllffs(<J- 8:21,
31:4
paga(lJ 30:10
6:25, 19:3, 20:15
9:23, 19:4, 10:6,
regard{2J 8:19,
sallsfy(tJ-12:16
PAGE PI 3:3,34:16
19:12,11:22,11:24,
26:17
Plalntlffs(!l-1:8
12:5,14:6,22:1,
sawm-7:7, 7:10
pairs 11:24,
regarded (2J- 6:15,
PLAINTIFFS (!J 2:4
27:17

29:23, 29:24
PLA2A111- 2:11
17:12
second (f) -14:16
papers(SJ-15:20,
provldos(lJ- 21:24
regardless 121 26:3,
secondary {11) 6:23,
17:21,21:20,22:11,
polnll6!-14:16,
proving 111- 21:2
26:5
18:15, 22:3, 23:19,
6:20,9:2, 10:11,
#:1612
'
10:14, 12:13, 14:16, significantly 111 - LYt11-34:14 SUillll 16:11 thOUSAndS(1J 29:23 J
16:3, 17:23, 25:6, 27:19 S1111 8:6, 8:16, SUITE{11 2:6
throo(61- 4:21, 12:20;3 9
27:24 slmllar(17] 6:18, 7:2, 12:12, 13:7,23:11, supports 111-16:21 14:20, 27:9, 27:12
SECTION 111- 34:12 7:16, 8:4,9:3, 30:20 supposed(2J18:3, threshold 1>1- 1"/:20,
600(91-7:9, 11:5, 11:25, 12:6, 15:3, sll!chlng 111- 13:23 22:20 21:2
11:11, 12:22, 13:16, 17:9, 22:2,22:22, Stopt1J31:10 sus poet fll- 28:24
throughoUt(>)- 8:16,
20:21,25:15,25:19, 28:22,29:9,29:11, stoppsd13l- 31:6, swoosh(1J -7:9
19:1
25:22 31:17, 31:19 31:7,31:9
TITLE 111-34:13
SOOIU{I] -17:10 similarity 111- 29:20 storos (31- 19:1,
T
TO (II 34:12
selft>l- 20:2,25:12 slmllarly(11-7:2 19:14 fogothsr I>J- 16:12,
selflnvalldatlng(1J- slmply(OJ -13:9, sfralghfitl- 8:19
toed 111- 16:6
19:11
25:12 15:17, 18:24, 22:13, stratoglctiJ-16:13
took t3J- 13:18, 18:8
seff.setvfng 111- 20:2 24:22,27:16,28:12, slratogy{tl -16:18
tamporary(Jl- 30:11
trademark [24) 8:20,
selli6J- 27:3.28:1, 28:16, 32:14 STREETt>l-1:23,
ferritorlai(1J-18:17
11:17,12:8,12:10,
29:22, 33:2, 33:6 single(>!- 6:24, 13:5 2:16
twllorlost11- 19:25
14:4, 14:5, 14:6,
soil-off fiJ - 33:2
silling 1>1- 27:1, 27:5 strength {1)-12:13
testimony ttl- 24:17
14:19, 14:21, 16:5,
soiling f6J- 6:6, 18:13, slxt>J- 4:23,30:10 strengthoi1(1J-16:13
THATt>J- 34:12,
16:16, 17:3, 17:16,
23:16, 27:20, 28:13 Sf<O{IJ-10:22 strengthened 111-
34:15
17:25, 18:16, 19:6,
senf(2J-12:2, 26:22 skep!lclslll(1J- 21:5 26:11
THE {116)-1:12, 2:4,
19:7, 19:24, 20:24,
separafe(2J -17:24, SleekcrafttlJ- 17:10 sfrlpof3J- 7:20, 10:5,
2:9, 2:9, 4:4, 4:7,
21:2, 21:16, 21:25,
24:11 sllpportiJ- 26:22 11:18
4:10, 4:16, 4:20,
24:12,25:9
serious (1J- 24:25 small 111 - 6:2 str!ped I<J- 7:12,
4:21,4:23,4:24,5:1,
tradomarkSf2J-
serving 111- 20:2 soldi7l- 7:2, 8:10, 7:15,11:21
6:2,5:8,6:11,5:14,
21:21,24:6
SESSION !II - 4:3 8:16, 20:5, 29:24, slrlpest>Sl- 8:23,
5:16, 5:22, 6:25, 6:4,
TRADING tO! -1:7,
selst>J-10:2, 18:2
32:2,32:4 10:16, 10:17, 10:23,
6:10,6:16, 7:14, 6:1,
2:4,34:5
seftlsl1J- 20:18 solet>J- 7:4, 12:10 11:8, 11:9, 11:16,
8:9, 8:12, 8:16, 8:18,
TRANSCRIPTt<J-
Seve11111- 5:1
solely111-10:6 11:23, 12:7, 12:19,
9:7,9:11,9:16,
1:15,34:14,34:16,
severai[2J- 14:22, sofeS{IJ-13:21 12:20, 12:21,12:23,
10:16, 10:19, 10:22,
34:18
16:8 somaUmes{1J
12:26, 13:1, 13:12,
10:25,11:11, 11:20,
travelt>J- 19:10,
Shanghal(1!17:19 somowhat(lJ -13:1
13:13, 14:1, 14:5,
12:3, 12:12, 13:25,
32:16
shoflt11- 24:19 SOOJI{1)- 27:16
23:14,24:23,28:8,
14:2, 14:12, 14:25,
frlcklo 111- 27:9
Shlofds 111- 10:8 sorry[aJ- 9:7, 9:13,
29:12,29:16,29:19
15:22, 16:2, 16:22,
TROt<J-15:11,

9:18,18:21,31:4
striping {3!11:3,
17:6, 17:9, 18:10,
15:16, 15:23, 16:11
13:2, 13:3, 13:7, sort{3J-7:12, 16:4,
13:8, 17:17
18:12,19:9, 19:19,
troublod[2J- 23:19,
14:11' 15:3, 15:5, 33:2
strong[1J25:9
20:4, 20:8, 20:12,
30:20
17:6, 19:17, 21:5, sortstu-21:11
sfronglyJI)- 30:8
20:17,21:9,22:17,
TRUE 111-34:13
22:19. 23:2, 23:8.
24:19,25:21, 26:19, source [BJ- 6:24, 9:6,
style(2J- 21:7,22:5
23:15, 23:21, 24:24,
try 121 16:9, 17:16
26:21, 28:14, 28:15, 10:11, 13:5, 14:7,
styles 111- 20:20
25:3, 25:15, 25:19,
frying tW 20:17,
28:16,28:18,28:21, 14:9,21:25,29:13
sub)ecft1J- 25:10
26:1, 26:4, 26:14,
29:6,29:8
29:22, 30;22 SOUTH {If- 2:16
submlf[>J- 9:8, 32:14
27:2, 27:7, 27:13,
(\V0{19J. 6:8, 8:7,
shoes(59J 6:2, 6:7, specfflct>J -15:10,
subml!ted{Ol 6:19,
27:21,28:6,28:9,
11:16, 11:17, 11:18,
6:17,7:1,7:3,7:11, 26:9
5:23, 9:14, 16:13,
28:12,28:18,28:21,
11:24, 12:4,13:22,
7:16, 8:4, 8:5, 8:7. specfflcally[1J-17:4
17:22,24:18,30:11
28:25, 29:6, 29:8,
16:20, 17:2, 18:8,
8:24, 10:10, 11:3, spoculatot1f -19:16
substancoi1J 16:8
29:14, 29:19, 30:1,
25:15, 27:4, 27:5,
11:15, 11:16, 11:20,
spelled 111- 22:6
substanllalt2J-
30:3, 30:16, 30:20,
27:8, 27:12, 29:25,
11:25, 12:1, 12:5,
spenttJ- 8:21
28:20, 29:20
30:25,31:13,31:23,
30:12, 31:9
12:24, 13:1, 13:6,
sponsorship 111-
substantlally(12l-
32:1,32:5,32:8,
typefSJ-13:2, 13:3,
13:15, 13:16, 13:19,
22:8
8:4. 11:26, 12:6,
32:11,32:13.32:15,
28:16,28:16, 28:21,
15:2, 16:24, 17:7,
SPR!NGt1J1:23
15:2, 17:9, 22:2,
32:18,32:20,32:22,
29:22
19:2,19:10,21:20,
stagetlJ 12:16,
22:22, 28:22, 29:9,
33:6, 34:7, 34:10,
types{2J- 21:14,
22:2, 22:22, 23:13,
16:17, 26:13
29:11,31:17,31:19
34:11' 34:13, 34:14,
28:17
25:15, 25:16, 26:23,
sfalllflfll- 31:6
substantlvely[1J-
34:16,34:16,34:17,
27:15, 27:20, 27:25,
stampodt3l- 26:18,
15:20
34:19,34:20
u
28:2,26:7,28:10,
26:21, 28:14
succood (t)- 20:19
fheorotfcalfy{l!-
28:13, 28:22, 26:25,
standard 11 -10:2
success(2l 7:19,
16:19
U.St>J -8:17,21:23
29:8,29:11' 29:23,
start 111-12:19
12:15
theorles[4J-15:6,
Umm .. tJ -10:18
29:24, 30:15, 31:2,
start! tJ- 26:23
suff!cfentt7J- 7:5,
20:24,20:25,21:15
31:5,31:11,31:16,
stat&IIJ-14:6
7:6, 7:23. 27:24,
fheory(3J -16:22,
unable 111 -15:16
31:18,31:19,33:3
states [11 - 10:6
29:16, 30:18, 32:2
21:16,30:9
under t3J - 7:22,
shopping {If- 19:14
31:11,31:14

suggesting 121-
thoy'VO(IS)-7:1,12:6,
undercut{tJ-16:19
ShOW{4J -15:16, 18!1,
1:22,34:11,34:13,
18:25,31:13
13:15. 18:20, 20:7,
21:25, 24:22
34:17, 34:20
suggestlon[JJ-
21:17
understood[tJ-
sldotll- 22:19
14:24
SfatoS[IJ- 30:13
15:19, 18:15, 24:17
fhlok{1f -11:7
sfgnlflcant(5J- 8:21,
slatuto !II- 24:9
suggests 121 -19:16,
thlnkfngt1J- 7:24
UNITEDtn-1:1, 1:22,
17:12, 22:14, 27:19,
STENOGRAPHICAL
20:10
THIS 111- 34:16
2:11,34:11,34:13,
28:1 sulng{1f12:21
34:17, 34:20
#:1613
Unllod 111- 30:13 wrllo(IJ 22:21
unsubstanflatod (1J- wrote(tJ 16:6
40
18:5
Up(2)16:6,18:2
y
USPTO(<J 9:1, 9:3,
9:15, 11:17
yeaq>J 9:26, 18:9
v
years [SJ- 4:23, 5:2,
6:5, 10:13, 18:8,
29:25, 30:12, 33:4
vaii<JIIy 111- 25:9 YORKi>J 2:12
varlatlon(1J- 28:14 York(3J- 4:13, 19:4.
varieties (lJ -11:2 32:17
vartous12J 15:6,
20:24
z
versust2J- 21:20,
21:21
Zaft(IJ 4:20
vlolallon(IJ 6:16
V(riUO(I) 21:7
ZElNIGKil) 2:9
VS(3)-1:10, 4:5, 34:6
ZolnlckJII 4:13
111 2:10
w
Zlssu 111-4:13
walf(3J16:12, 26:10,
26:16
walted(>J-16:16,
16:20
ways(3J6:18,11:18,
17:9
weakensttJ13:9
wearr11- 9:25
woarlng 111-10:2
weeds ill 26:10

2:10,4:12,6:11,
8:13,11:1,14:16,
16:0,16:1.16:3,
16:25, 17:8, 17:14,
18:11.18:14, 19:18,
19:22, 20:6,20:10,
20:13,21:1, 21:16,
22:18, 22:25, 23:4,
23:11,23:20,23:22,
25:2, 26:4, 25:23,
26:2, 26:5, 26:24,
27:4, 27:8, 28:6,
28:10,28:16,28:19,
28:23,29:2, 29:7,
29:10. 29:18, 29:24,
30:2, 30:7, 30:17,
30:23, 31:3, 31:21,
31:25, 32:7, 32:9,
32:12, 32:19, 32:26
Walnberger}1)- 4:12
WESTERNJ1J1:3
whlloJ61 8:23, 10:6,
13:14, 13:20, 14:1,
14:4
wldely!IJ- 20:16
wllllng(l!31:10
wlsh 111 16:7
34:16,
34:19
WITNESS !11 32:16
worth 111- 27:5
#:1614
Case 2 2-cv-08932-DDP-MAN Document 36 Filed 12/07/12 Page 1 of 4 Page ID #:1508
1 CALDWELL LESLIE & PROCTOR, PC
MICHAEL D. ROTH, State Bar No. 217464
2 roth(cj)_caldwell-leslie.com .
3
ALISON. MACKENZIE State Bar No. 242280
mackenzie@caldwell-leslie.com
725 South Figueroa 3lst.Ploor
4 Los California 9u017-5524
Telephone: 213) 629-9040
5 Facsnnile: ( 13) 629-9022
6 FROSS ZELNICK LEHRMAN & ZISSU, P.C.
JAMES D. WEINBERGER (admitted pro hac vice)
7 _lweinberger{aJ_fZlz.com
GISELLE C.W:IIDRON (admitted pro hac vice)
ghuron{aJ_fZ/z. com 8
86o UniteaNations Plaza
9 NewYork,NewYork 10017
Telephone: (212) 813-5900
10 Facsimile: (212) 813-5901
11
Attorneys for Defendant The Gap, Inc.
12
13 UNITED STATES DISTRICT COURT
14 CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
15
16 JUMBO BRIGHT TRADING
LIMITED, A Hong_ Kong Coi]Joration,
17 and CHARLES ANTHONY PHILIP
18
19
20
Plaintiffs,
v.
21
Defendants.
22
Case No. (MANx)
DECLARATION OF CHRIS
HUBBARD PURSUANT TO THE
COURT'S DIRECTION AT THE
DECEMBER 3, 2012 HEARING
Hon Dean D. Pregerson
Date: December 3, 2012
Time: 10:00 am
Courtroom: 3
23 I, CHRIS HUBBARD, declare under penalty ofpe!jury:
24
I.
I am the Director ofNorth America Finance for defendant The Gap,
25 Inc. ("Gap") and have held this position and others at Gap since 2003. I make this
26 declaration in response to the Court's inquity at the December 3, 2012 preliminary
27 injunction hearing in this matter. I make this declaration on the basis of my own
28
{F1133240.2}
G
#:1615
Case 2 2-cv-08932-DDP-MAN Document 36 Filed 12/07/12 Page 2 of 4 Page ID #:1509
1 personal knowledge or upon information and belief and upon review of company
2 records and ifi were called as a witness, I could and would testifY competently to
3 the facts set forth below.
4 2.
As set forth in my November 9, 2012 declaration, in July 2012, Gap
5 began offering a seasonal series of English- style slippers in the following
6 representative styles:
7
8
9
10
11
12
13
(collectively, the "Gap Slippers.")
14
3. Certain Gap Slippers contain a blue and white vertically striped lining,
15
as shown in the product on the right, below. Other Gap Slippers have vetiical striped
16
lining which is not blue and white, such as the product on the left, below (the stripes
17
are blue and yellow):
18
19
20
21
22
23
24
25
I refer to these slippers collectively as the "Striped Gap Slippers."
26
4. Certain Gap Slippers, including the Gap Striped Slippers, but also Gap
27
Slippers with no striped lining, contain a small induslly-typical production stamp on
28
{FII33240_2}
#:1616
Case 2 2-cv-08932-DDP-MAN Document 36 Filed 12/07/12 Page 3 ol4 Page ID #:1510
1 the inside of the shoe identifYing the internal Gap style "Phillip Moccasin Slipper,"
2 "Phillip Slipper" or "Novelty Philli" along with a style number, origin of production
3 and season code for Gap's internal use, shown by way of example here:
4
5
6
7
8 5.
I am advised that Gap has never ever used the "Phillip" style
9 designation to promote, advertise or market its products. A customer cam10t locate
10 Gap Slippers by searching the term "Phillip" on Gap's website at Gap.com or by
11 asking a salesperson about "Phillip" in stores. Those Gap Slippers with a visible
12 "Phillip" or "Philli" production stamp are referred to herein as the "Stamped Gap
13 Slippers."
14 6. I am advised that Gap ceased manufacture of Stamped Gap Slippers
15 before October 23, 2012 and will not use a "Phillip" or "Philli" on Gap Slippers in
16 any manner once these previously manufactured products are sold through.
17 7. I am advised that with respectto Gap's future sales of Stamped Gap
18 Slippers which were manufactured prior to October 23,2012:
19 a. for Striped Gap Slippers, meaning those shoes with interior striped
20
21
22
23
24
25
26
27
28
{fi13324D_2}
linings, which are also stamped with a visible "Phillip" or "Philli"
production designation, Gap estimates, based on current sales
projections and plans, that remaining U.S. store and U.S. online
inventmy should be exhausted by approximately March 4, 2013;
and.
b. for Stamped Gap Slippers other than the Gap Striped Slippers,
meaning those shoes with no striped lining (I am advised that
Plaintiffs only offer shoes with striped linings), Gap estimates,
#:1617
Case 2: 2-cv-08932-DDP-MAN Document 36 Filed 12/07/12 Page 4 of 4 Page ID #:1511
1
2
3
4 8.
based on current sales projections and plans, that remaining U.S.
store and U.S. online inventory should also be exhausted by
approximately March 4, 2013.
The foregoing estimates are based on sales rates and plans currently
5 available and are subject to change based on actual sales. Gap has no ability to
6 precisely state the last date on which all units of products will be sold tlnough at all
7 Gap stores throughout the U.S. (nearly 700 stores across the country). In addition,
8 with Gap's return and exchange policies, quantities of previously sold product may
9 be returned to stores.
10 9. I certify that Gap has retained and will retain its corporate records
11 evidencing the sale of Stamped Gap Slippers throughout the duration of this
12 litigation, including any appeals.
13 I declare under penalty of pe1jury of the laws ofthe United States of America
14 that the foregoing is true and conect.
15 Dated this 7th day of December, 2012 at San Francisco, California.
16
17
18 CHRJS HUBBARD
19
20
21
22
23
24
25
26
27
28
lfJJ3)140.2}
#:1618
Cas 2:12-cv-08932-DDP-MAN Document 21 Filed 10/25/12 Page 1 of 6 Page ID #:794
1
2
3
4
5
6
0
7
8
9
10
11 JUMBO BRIGHT TRADING )
LIMITED, a Hong Kong )
12 corporation; CHARLES ANTHONY )
PHILIP POZZI, )
13 )
Plaintiffs, )
14 )
v 0 )
15 )
THE GAP, INC., )
16 )
Defendant. )
17 )
)
18 )
)
19
Case No. CV 12-08932 DDP (MANx)
APPLICATION FOR TEMPORARY
RESTRAINING ORDER AND AN ORDER TO
SHOW CAUSE RE: PRELIMINARY
INJUNCTION
[Docket No. 5)
20 Plaintiffs Jumbo Bright Trading Limited and Charles Anthony
21 Philip Pozzi (collectively "Plaintiffs") have sued The GAP, Inc.
22 ("Defendant") for various claims including trademark infringement,
23 patent infringement, and the right of publicity. See generally
24 Complaint. The dispute arises from Defendant's new Phillip
25 loafers, which are allegedly confusingly similar to Plaintiffs' CP
26 Charles Philip loafers. Id. Presently before the court is
27 Plaintiffs' Ex Parte Application for a Temporary Restraining Order
28 and an Order to Sh01v Cause Re: Preliminary Injunction ("Motion") .
EXHIBIT
I t
#:1619
Cas 2:12-cv-08932-DDP-MAN Document 21 Filed 10/25/12 Page 2 of 6 Page 10 #:795
1 Because Plaintiffs offer no evidence of irreparable harm, the court
2 DENIES their Motion in its entirety.'
3 I. Legal Standard
4 An ex parte Temporary restraining order ("TRO") may be granted
5 when it is shown "that immediate and irreparable injury, loss, or
6 damage will result to the movant before the adverse party can be
7 heard in opposition." Fed. R,_ Ci v. !:..,__ 65 (b) ( 1) (A) . Courts apply
8 the preliminary injunction factors in deciding whether to grant a
9 TRO. See Stuhlbarg Int'l Sales Co. v. John D. Brushy & Co., 240
10 F.3d 832, 839 n. 7 (9th Cir. 2001). A party requesting a TRO "must
11 establish that he is likely to succeed on the merits, that he is
12 likely to suffer irreparable harm in the absence of preliminary
13 relief, that the balance of equities tips in his favor, and that an
14 injunction is in the public interest." Network Automation, Inc. v.
15 Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1144 (9th Cir. 2011)
16 (citing Winter v. Natural Res. Def. Council, Inc., 555 U.S. 7, 20
17 (2008)). If a plaintiff fails to "clearly show that it is likely
18 to suffer immediate and irreparable harm absent a TRO," a court
19 need not consider the other three factors. ConocoPhillips Co. v.
20 Gonzalez, No. 5:12-CV-00576-LHK, 2012 WL 538266, at *3 (N.D. Cal.
21 Feb. 17, 2012) (quotation omitted). "A TROis an extraordinary
22 remedy that may only be awarded upon a clear showing that the
23 plaintiff is entitled to such relief." Niu v. United States, 821
24 F. Supp. 2d 1164, 1168 (C. D. Cal. 2011).
25 II. Irreparable Harm Analysis
26
27
28
1
The parties appear to dispute whether Defendant received proper service
of Plaintiffs' Motion. Because Plaintiffs' Motion is denied, hmrever, the court
need not determine Nhether proper service occurred.
2
#:1620
1 "Speculative injury does not constitute irreparable injury
2 sufficient to warrant granting a preliminary injunction. A
3 plaintiff must do more than merely allege imminent harm sufficient
4 to establish standing; a plaintiff must demonstrate immediate
5 threatened injury as a prerequisite to preliminary injunctive
6 relief." caribbean Marine Serv. Co., Inc. v. Baldrige, 844 F. 2d
7 668, 674 (9th Cir. 1988) (emphasis in original, citations omitted).
8 Demonstrating irreparable harm requires evidence. See WiBter, 555
9 u.s. at 21.
10 Previously, the Ninth Circuit presumed irreparable harm in
11 trademark infringement cases if a plaintiff showed a likelihood of
12 success on the merits. See Brookfield Commc'ns, Inc. v. W. Coast
13 Entm't Corp., 174 F.3d 1036, 1066 (9th Cir. 1999). However, in
14 Winter the Supreme Court held that, "(i]ssuing a preliminary
15 injunction based only on a possibility of irreparable harm is
16 inconsistent with our characterization of injunctive relief as an
17 extraordinary remedy that may only be awarded upon a clear showing
18 that the plaintiff is entitled to such relief." 555 U.S. at 22.
19 After Winter, the Ninth Circuit made clear that courts could no
20 longer presume irreparable harm after finding a likelihood of
21 success on the merits in copyright cases. Flexible Lifeline Sys.,
22 Inc. v. Precision Lift, Inc., 654 F.3d 989, 998 (9th Cir. 2011).
23 As far is this court is aware, every district court in the Ninth
24 Circuit that has examined the issue after Flexible Lifeline, along
25 with a number that analyzed the issue before that case, has either
26 found or at least suggested that irreparable harm cannot be
27 presumed in trademark cases as well. See ~ CvtoSport, Inc. v.
28 Vital Pharm .. Inc., 617 F. Supp. 2d 1051, 1065 (E.D. Cal. 2009)
3
#:1621
1 aff'd, Cytosport, Inc. v. Vital Pharm., Inc., 348 F. App'x 288 (9th
2 Cir. 2009); Herb Reed Enters., LLC v. Florida Entm't Mgmt., Inc.,
3 No. 2:12-CV-00560-MMD-GWF, 2012 WL 3020039, at *15 (D. Nev. July
4 24, 2012); Boomerangit, Inc. v. ID Armor, Inc., No. 5:12-CV-0920
5 EJD, 2012 WL 2368466, at *4 (N.D. Cal. June 21, 2012); Seed Servs.,
6 Inc. v. Winsor Grain, Inc., No. 1:10-CV-2185 AWI GSA, 2012 WL
7 1232320, at *4 (E.D. Cal. Apr. 12, 2012); ConocoPhillips, 2012 WL
8 538266, at *2-3; AFL Telecomms. LLC v. SurplusEO.com, Inc., No. CV
9 11-01086-PHX-FJM, 2011 WL 4102214, at *3 (D. Ariz. Sept. 14, 2011)
10 reconsideration denied, No. CV 11-1086-PHX-DGC, 2011 WL 5547855 (D.
11 Ariz. Nov. 15, 2011); Mortgage Elec. Registration Sys., Inc. v.
12 Brosnan, No. C 09-3600 SBA, 2009 WL 3647125, at *8 (N.D. Cal. Sept.
13 4, 2009); Volkswagen AG v. Verdier Microbus & Camper, Inc., No. C
14 09-00231 JSW, 2009 WL 928130, at *2 (N.D. Cal. Apr. 3, 2009).
15 Plaintiffs first argue that they are entitled to a presumption
16 of irreparable harm, because they have shown a likelihood of
17 success on the merits for their trademark claim. (Plaintiffs'
18 Memorandum of Points and Authorities in Support of Ex Parte
19 Application for a Temporary Restraining Order at 17:19-18:18,
20 Docket No. 10.)
2
For the reasons discussed, Plaintiffs rely on
21 former law. Plaintiffs, however, do offer some evidence of
22 irreparable harm. Plaintiffs claim that, "[e]very day consumers
23 are buying [Defendant's] loafers assuming they meet Plaintiffs'
24 quality standards and they do not." (Docket No. 10 at 19:1-2.)
25 Although the irreparable harm section of their brief does not cite
26
27
28
2
rn violation of local rules, Plaintiffs did not e-file their reply brief.
C.D. Cal. L.R. 5-4.1. In light of the time pressures of a TRO motion
1
the court
exercised its discretion and accepted the brief.
4
#:1622
1 it, Plaintiffs have provided a letter that their distributor wrote
2 to Defendant, which claims that Defendant's loafers were confusing
3 customers and diminishing Plaintiffs' sales.
(Bates Decl. Ex. 0.,
4 Docket No. 10-1.)
However, the letter provides no specifics to
5 support these assertions. Id. It does not explain how its author
6 knew customers had been confused, nor does it specify any actual
7 lost revenues that have occurred since Defendant's product was
8 introduced. Id. Indeed, the letter's language seems to express
9 only a speculative concern: "[O)ur customer stores.
. are
10 concerned that this blatant copy of a unique design.
. will
11 infringe on their sales." Id. These conclusory statements do not
12 "demonstrate" that there is an "immediate threatened injury." See
13 Caribbean Marine, 844 F.2d at 674; see also Overstreet ex rel.
14 Nat'l Labor Relations Bd. v. W. Prof'l Hockey League, Inc., No. CV
15 09-0591 PHX ROS, 2009 WL 2905554, at *8 (D. Ariz. Sept. 4, 2009)
16 (explaining that "clear evidence, not speculation" is required to
17 support allegations of "irreparable harm").
18 not met there burden.
3
Plaintiffs have, thus,
19 III. Conclusion
20
21
22
23
24
25
26
27
28
For the reasons
discussed, the court DENIES Plaintiffs' Motion
in its entirety.
Ill
Ill
Ill
Ill
3
Plaintiffs also cite a blog post from July 31, 2012, as proof that
Defendant's products Hill confuse customers. (Memo at 13:25.) Plaintiffs
purport to provide a copy of this post at Exhibit R to the Bates declaration.
No such exhibit, hmJever
1
could be found by the court.
5
#:1623
1 The court notes that this denial is without prejudice, and
2 finds that this matter is more suitable for resolution upon a
3 noticed motion for a preliminary injunction.
4
5 IT IS SO ORDERED.
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
Dated:October 25, 2012
6
/) ,-],{) /
/;. !J .7
1
.,
1
j'l/ ... /
/fIH/1/f/ '"
/ 'DEAtr D JPR GERSON
United States District Judge
#:1624
Case3:09-cv-00231-JSW Document10 FiledOl/23/09 Pagel of 3
1/S!IEF'PARD MULLIN RICHTER & HAMPTON LLP
2 Limited Liability Partnership
3
Professional Corporations
SMITH, Cal. Bar No. 63777
4
5
6
8
Cal. Bar No. 228118
Embarcadero Center, 17th Floor
Francisco, California 94111-4106
415-434-9100
415-434-3947
nsmith@sheppardmullin.com
nbruno@sheppardmullin.com
Counsel (Pro Hac Vice Applications To Be Filed):
9 IITH>'H PHILLIPS & ANDERSEN
10
D. PHILLIPS, Utah Bar No. 4645
\\Tl'IOIVIA.S R. LEE, Utah Bar No. 5991
11
12
R. RYTHER, Utah Bar No. 5540
East 200 South, Suite 300
Lake City, UT 84102
13
11Telephone: 801-366-7471
15
16
801-366-7706
gdp@ hpalaw .com
leet@law.byu.edu
sryther@hpalaw .com
17
18
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
19
20
21
22
23
VOLKSWAGEN AG, a German
corporation, and VOLKSWAGEN GROUP
OF AMERICA, INC., a New Jersey
corporation,
Plaintiffs,
v.
24 VERDIER MICROBUS & CAMPER,
25
26
27
INC., an entity of unknown origin, and
ALEXANDRE VERDIER, an Individual,
Defendants.
Civil Action No. C-09-0231-JSW
DECLARATION OF JASON EVES IN
SUPPORT OF VW'S MOTION FOR
Hearing Time: 9:00a.m.
Courtroom: 2, l7
1
h Floor
Honorable JeffreyS. White

lr IN
1 SUPPORT OFVW'S MOTION FOR
Action No. C-09-0231-JSW
PRELIMINARY INJUNCfiON
#:1625
Case3:09-cv-00231-JSW Document10 Filed01/23/09 Page2 of 3
1
DECLARATION OF .JASON PHILIP EVES
2
3
I, Jason Philip Eves, declare under penalty of petjury of the laws of the United States as
4
follows:
5
1.
I am an associate attorney at the offices of Howard, Phillips & Andersen, counsel
6 of record for Volkswagen AG and Volkswagen Group of America, Inc. (collectively "VW") in
7 this action.
8
2.
I have personal knowledge of the facts stated herein, and, if called to testify as a
witness, I could and would testify competently thereto.
9
3. On November 21,2008, at the request of Volkswagen Group of America, Inc., I
10
investigated the website located at verdier.ca. My investigation found that, in my view,
11
Defendants were using VW's trademarks and trade dress, and other marks that appeared
12
strikingly similar to VW's trademarks and trade dress in their automobile designs, model
13 names, and other merchandise. True and correct copies and "Screen Shots" depicting images of
14 Defendants' website and products as they appeared at verdier.ca on January 20,2009, that are
15
substantially similar to the images that I found on the website located at verdier.ca on
16
November 21,2008, are attached to this Declaration as Exhibit 1.
17
18
19
20
21
22
23
24
25
26
27
4.
After my investigation I drafted a cease and desist letter on behalf of VW and
sent it to Defendants. A true and correct copy of that cease and desist letter is attached as
Exhibit 2.
2 8 ~ ~ ~ = = ~ ~ ~ ~ ~ ~ - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ~ ~ ~ ~ ~ ~ ~ ~ ~ ~
W02-WEST,6NB 1\401312689 .I DECLARATION OF JASON EVES IN
2
Civil Action No. C-09-0231-JSW
SUPPORT OF V\V'S MOTION FOR
#:1626
Case3:09-cv-00231-JSW DocumentlO FiledOl/23/09 Page3 of 3
5. On November 24,2008, I fmther investigated Defendants and their products on
2
the Internet by conducting a simple google.com search using the words "VW" and "Verdier"
3
together. At that time I found several online articles and blogs that in my view indicate the
4
authors' actual confusion regarding the source of Defendants products, or the affiliation of
5 Defendants with VW. The mticles are supplied to the Court in support of VW's motion. True
6 and correct copies of the online articles and blogs are attached to this Declaration as Exhibit 3,
7 and two of these articles are attached to the Verified Complaint as Exhibit D.
8
9
DATED this 22nd day of January 2009.
10
AT: Salt Lake City, UT
11
Is/ Jason Eves
12
Jason Eves
13
14
E Filing Attestation
15
As the attorney e-filing this document, and pursuant to General Order No. 45, I hereby
16
attest that the person whose electronic signature appears above (Jason Eves) has concurred in
17
18
this filing.
19 Dated: January 23, 2009
20
21
22
23
24
25
26
27
28
W02-WEST:6NBl\40l3l2689.1
Civil Aclion No. C090231-JSW
Is/ Neil A. Smith
Neil A. Smith
3
DEClARATION OF JASON EVES IN
SUPPORT OF VW'S MOTION FOR
PRELL\1INARY INJUNCTION
#:1627
Case3:09-cv-00231-JSW Documentl0-3 FiledOl/23/09 Pagel of 19
EXHIBIT 3
#:1628

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May 1, 2008
Volkswagen Westfo!ln Verdier by Canadien designer Alexandre Verdier

Pea's on Vana'1l<1 PIO&.cl' 3,000f Vu
ProOJC\s
\'a'.J(\.Q\Ot.!l<'!

Fuel" Pop Top No.v lo ollw'ah
Warrartj.

Ba:ga1n P/.ces. Sm<Jt Oeals.. Sa'ii! e-n \'WWes'fala
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W/Va>M!Pfl We!eeme WI Vi!ngon Roao:l

......
1.%?] Ms Goosfe
mhtml:file:/N:\VW\Verdier 2008-11-21\2008-05-01 evidence of confusion- Eco-Friendly... 1/16/2009
#:1629
If you are looking fOl' eco-friendly vehicles around, check out this one by Volkswagen. We all love the outdoors and roughing it. So if you want to add a piece of green to
your edra gudcular ru;tivities, check out this creation by Canadian Alexandre Verdier.
'The frankly beautiful Volkawagen Wes!fa!!o Verdier was designed by Canadian designer Alexandre Verdier, and comes equipped with its own solar panels, n lclhllil
!:.0&-iM and "a swivel cooking range". So you can drive to your festival feeling stylish, eat stuff that didn't come In box ... and feel smug as hell. I don't know
how much this thing costs, but you can't put a price on that.
Chemical Toilet
Filed by Brian Yalung at May 1st, 2008 on 8:23pm under Al.ltQ, Cnrs, li)1lrlds.l No comments
Tags: e;s!Ut currlculnr !H:;Iivjtias, hybrid engine, vo!kswaoen westfalja
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mhtml:file:/IV:\VW\ Verdier 2008-11-21\2008-05-01 evidence of confusion - Eco-Friendly ... 1/16/2009
r
#:1630

The Filed01/23/09 Page4 of ilJage 1 of 8
; .
;:
Bornrich.Ol'g : i
''
I
Advartln With Us
We have earlier told you about some desirable, ultra-luxurious camper vans that are fitted with every, Juxury, you can't afford to live without. But, if you are a VW-Westfalia
campers fan than nothing could appeal you like a new much-improved model from the company. The company is working-upon Its new modem version, which wil! inherit all
the channs of the original along with the added luxuries and functionality.
Tile van's top panel will be intact but now if rises straight up instead oftilting and Is CO\'ered in solar panels. The other updated features will Include a kitchenette that swings
completely out of the van and a storage drawer in the back for a set of folding chairs and LED lighting. The company is working with Alexandre Verdier, a French-Canadian
designer group on lts new model. Checkout e\'en more pies at the
via Al!..Uilllog
mhtml:file:/N :\ VW\ Verdier 2008-11-21\2006-09-01 evidence of confusion All-New VW ... 1/16/2009
#:1631
The FiledOl/23/09 PageS of 2 of 8
Nm:!:nru.
Comments
Anton
This is NOT the new Wruty .. merely an award-winning design concept by Ve1'11ier(ht!p:flwww.verdier.ca/) that will not be built by VW.
Ever.
VW is curnmtly negotiating with DCX (Daim1er/Chrysler) to bulld a new VW van at the plant in St. Louis, Thus far, no design sheets have been shown for it.
Much as I'd like to see it bullf, sin<:e VW has not expressed an interest in the cQncept, it will not be a Volkswagen IF it ever gets past the design phase.
rp tbk oomment

Martha
I wondu if these vans has hftrer res mi1enrre than the usual vans we commonly see on the roads. I like the second one though.
Reply to this comment
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40 othM Wattan.'y.

Add Your Comment
200g VW Roulan
WI
low tnt()' Ill Sf a Qvow
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mhtml:file:/N:\VW\Verdier 2008-11-21\2006-09-01 evidence of confusion All-New VW ... 1/16/2009
#:1632
The :@meiliffi!htl0-3 FiledOl/23/09 Page6 of 3 of 8
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rnhtml:file:/N:\VW\Verdier 2008-11-21\2006-09-01 evidence of confusion All-New VW ... 1/16/2009
#:1633
Page7 of 1gage 1 of 9
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Browse> Home I Green Gear I Awesomely Green Westfalia Verdier Solar Power VW Van
Awesomely Green Westfalia Verdier Solar Power
VWVan
October 30, 2008 Print This Article
mhtml:file:/IV:\VW\Verdier 2008-11-21\2008-10-30 evidence of confusion- Awesomely... 1120/2009
#:1634
If you've ever looked at VW vans in longing for that seemingly carefree life, but cringe at the thought of how
much you'd spend on gas, you're really going to covet this. Eco Chick called our attention to the sweet new
Westfalia Verdier Solar Power VW Van, which is way more hip and well-appointed than those Westfalias from
the '60s. The sleek new design of this hybrid camper features solar panels that provide electricity for the on-
board accessories while the vehicle is stationary, an on-board computer and a GPS system that calculates the best
position for the solar panels.
From Eco Chick:
Some other improvements from the 1960's version include, a pneumatic suspension, which lowers
the vehicle and sets its structure on the tires for improved comfort and a better stabilization in the
stationary position. The sliding half-door on the passenger side has an.integrated folding staircase
which makes the second stage area accessible from outside the vehicle. The passenger seat is
transformed mechanically into stairs so that the second stage area (top level) can be easily reached
from inside. A swivel cooking range makes it possible to cook outside as well as inside. And of
course, there's a multi-media computer with a wireless Internet connection.
Official EarthFirst Drooltime Hour. That thing is amazing. Oh, how I'd love to hop in this thing and take a
driving tour of some of my favorite parts of the country, like New England and the Pacific Northwest. All those
windows! Solar power! Of course, if you're solidly in the middle class like me, buying this thing would mean
permanently moving into it- it costs a cool $129,000. It'll be available next year, and reservations are being
taken now.
Check out this YouTube clip to see all the features:
mhtml:file:/N:\VW\Verdier 2008-11-21\2008-10-30 evidence of confusion- Awesomely... 1/20/2009
I
i
I
I
I
!
I
I
I
I
#:1635
Link [Eco Chick]+ [YouTube]
Written by Stephanie Rogers Filed Under Green Gear
Tagged: Green Cars, Hybrid Cars, Volkswagen
Related Posts:
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VW' s Sleek 'One-Liter Car' Gets 235 Miles Per Gallon
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mhtml:file:/N:\VW\Verdier 2008-11-21\2008-10-30 evidence of confusion- Awesomely... 1/20/2009
I
r-
1
#:1636
bookofjoe: FiledOl/23/09 Page10 of 1 of7
bookofjoe search bookofjoe: _j g
RawenTokvo.com 1 1 - 'Watch live streamtng
news from the USA and the world' )>
September 01, 2008
World's crunchiest VW -Verdier Solar Power
It's a classic Volkswagen microbus tricked out with Montreal Industrial designer
Alexandre Verdier's Verdier Solar Power. a gas/diesel hybrid with
solar panels that track the sun via Integrated GPS.
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mhtml:file:/N:\VW\Verdier 2008-11-21\2008-09-01 confusion article- bookofjoe- World... 1/20/2009
#:1637
"As the original Westfalla was the symbol of the hlp pie culture, this new Verdier Solar
Power Is part of a new culture with its own tituals."
Jhomas Baekdal on bookofioe says

Rocketboy on J.nf.ktable
'Same taste.
>> Blogs that link here
Ui Teohnoratl
. I
#:1638
bookofjoe: Filed01/23/09 Page12 of fWge
3
of?
"It Is based on green energy and the pleasure to be n

!C02emms!Qps; . l6!').o 1 km :.. c ::
.
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#:1639
bookofjoe: FiledOl/23/09 Page13 of 4 of 7
Get on the walt list for 2010 'cause the 2009 model Is already sold out,
i
'
L
#:1640
bookofjoe: FiledOl/23/09 Page14 of f?itge
5
of
7
Scroll down to the very bottom of for a two-minute long video about the
bus.
mhtml:file:/N:\VW\Verdier 2008-11-21\2008-09-01 confusion article- bookofjoe- World... 1120/2009
#:1641
bookofjoe: FiledOl/23/09 PagelS of ftge 6 of?
$69,000 (U.S.).
#:1642
Inquiries: lnfo@verdler.ca
September 1, 2008 at 11:01 /lM I Permalfnk
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Comments
To die for.
Posted by: M!lorn! I Sep 1, 2008 12:25:44 PM
I have a 73 VW c a m p e r ~ - now retired In my garage for overflow guests. Your solar
power VW Is fantastic! thanks js
Posted by: ioan smith J Nov 20, 2008 9:00:20 AM
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rnhtml:file:/N:\VW\Verdier 2008-11-21\2008-09-01 confusion article- bookofjoe- World... J/20/2009
#:1643
Volkswagen Westfalia Verdier Solar Powered Mobile Micro Home
rve nlways wru1ted a VolkS\'t'Ogen bus. Long before I was able to drive, I had a fantasy of living down-and-out in a VW camper, aimlessly meandering it
along isolated roads far from civilization and parking it along the beach or deep in the woods in order to catch some sleep and gather supplies.
My fantasy never came true and it never will. Turns out I'm not a down-and-out sort; my idea of roughing it is downgrading to a three-star hotel. But
luckily forme, there's nothing rough about the new Volkswagen Westfalia Verdier Solar Powered Mobile Micro Home.
Micro Homes are the way of the future. At least that's what the design team at Verdier Solar Power thinks, as well as the Jury at Germany's Caravan Salon
Dusseldorf, who awarded the company a Special Design Award for their inspired VW redesign.
The coming together of the Westfalia, long a symbol of the hippy culture, and the green energy technology of Verdier takes the camper experience and
turns lt on its head, transforming the simple VW bus into a modem, self-sufficient drivinglliving machine with a 5mooth design and the coolest features this
side of a high-end fifth wheel. Verdier set out to enhance the "light recreational vehicle" and make the Westfalia traveling experience more luxurious and
autonomous. And the result Is one of the tightest designs I've seen.
We.:;tfalia Hybrid Blo Diesel Vehicle/ Micro home Vitie(l
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a pneumatic suspension that.
;rovldes improved by actually lowering ground for stationary use. a second story {or "second
staging area", as they call it), easily accessible fr<1m the outside by the sliding half-door on the passenger side that pulls up into a ladder, or by the
inside via the passenger seat, which, like a transformer toy, mechanically converts itself into a set of stairs. There's also a swivel cooking range that allows
you to cook inside or out.
And what would a modem home be without a multi-media computer with WiFi?
Designer Alexandre Verdier has long had a fascination with VW caravans. Armed with degrees in philosophy and Industrial Design, he traveled across
Europe and the United States in VWs, redesigning the vehicle in his mind and writing not one but two handbooks on the perfect camper.
At prices ranging from $26,000 to S69,000, the Westfalia Verdier Solar Powered Mobile Micro Home is not for the hippy-at-heart. And it's not the
experience you've come to expect from the Volkswagen camper.
It's way cooler.
For more infomJation and a list of awards won by Verdier, check out
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BATES & BATES, LLC
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Phone ( 404) 228-7439
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II JUMBO BRIGHT TRADING LIMITED, )
A Hong Kong Corporation, and CHARLES )
12 ANTHONY PHILIP POZZI, an Individual, ) [PROPOSED] ORDER
GRANTING PLAINTIFF'S
MOTION FOR
COURT'S DECEMBER 27,
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Plaintiffs,
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15 v.
16 THE GAP, INC. and DOES 1-10,
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2012 ORDER DENYING
PLAINITFFS' MOTION FOR
PRELIMINARY INJUNCTION;
AND GRANTING PLAINTIFFS'
MOTION FOR PRELIMINARY
INJUNCTION
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Defendants.
Hearing Time: 10:00 a.m.
Courtroom 3
Before the Court is Plaintiffs Jumbo Bright Trading Limited and Anthony Philip
25 Pozzi's (collectively "Plaintiffs") Motion for Reconsideration of this Court's December
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27, 2012 Order Denying Plaintiffs' Motion for a Preliminary Injunction [Doc. No. 40]
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[PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR RECONSIDERATION OF THIS
COURT'S DECEMBER 27,2012 ORDER DENYING PLAINTIFFS' MOTION FOR PRELIMINARY
INJUNCTION; AND GRANTING PLAINTIFFS' MOTION FOR PRELIMINARY INJUNCTION
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("Plaintiffs' Motion for Reconsideration"). Having considered Plaintiffs' Motion for
Reconsideration, together will all supporting papers, it appears to the Court that Local
Rule 7 -18( c) allows the Court to grant a motion for reconsideration.
Accordingly, good cause appearing, pursuant to Local Rule 7-18(c), the Court
hereby grants Plaintiffs' Motion for Reconsideration and grants Plaintiffs' Motion for a
Preliminary Injunction.
I. Legal Standard
The Supreme Court set forth the standard for assessing a motion for preliminary
injunction in Winter v. Natural Resources Defense Council, Inc., 555 U.S. 7, 29 (2008).
"Under Winter, plaintiffs seeking a preliminary injunction must establish that (1) they are
likely to succeed on the merits; (2) they are likely to suffer irreparable harm in the absence
of preliminary relief; (3) the balance of equities tips in their favor; and ( 4) a preliminary
injunction is in the public interest." Sierra Forest Legacy v. Rey, 577 F.3d 1015, 1015,
1021 (9
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Cir. 2009).
On December 27, 2012, this Court entered an order denying Plaintiffs' Motion for
Preliminary Injunction [Doc. No. 40], finding that Plaintiffs have not shown they are likely
to suffer ineparable harm. In the context of trademark infringement, irreparable harm is
typically found in a plaintiffs loss of control over their business reputation, loss of trade
and loss of goodwill. Maxim Integrated Products, Inc. v. Quintana, 654 F. Supp.2d 1024,
1036 (N.D. Cal. 2009). Irreparable injury exists where a comi reasonably concludes that
!PROPOSED] ORDER GRANTING PLAINTIFFS' MOTION FOR RECONSIDERATION OF THIS
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continuing infringement will result in loss of control over the plaintiff's reputation and
good will. /d.
A. Reconsideration of Irreparable Harm Analysis
5 Pursuant to Local Rule 7 -18( c), Plaintiffs have asked this Court to reconsider its
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December 27, 2012 Order. Local Rule 7-lS(c) provides, in relevant pati, that "[a] motion
for reconsideration of the decision on any motion may be made only on the grounds of ...
(c) a manifest showing of a failure to consider material facts presented to the Comi before
such decision." C.D. Cal. L.R. 7-18(c). Local Rule 7-18 further provides that "[n]o
motion for reconsideration shall in any manner repeat any oral or written argument made
in support of or in opposition to the original motion." /d.
First, Plaintiffs request this Court reconsider its conclusion that Defendant Gap,
Inc.'s ("Gap") statement it will no longer manufacture shoes with the word "Phillip' or
"Philli" negates irreparable harm. Plaintiffs argue that it's the sale rather than the
manufacturing of the similar shoes that is alleging irreparably harming Plaintiffs' stmi-up
company. Upon reconsideration, the Comi agrees.
Gap initially represented to the Comi during the December 3, 2012 hearing on
Plaintiffs' Motion for a Preliminary Injunction that it would provide an affidavit, under
penalty of pe1jmy, stating that it would cease manufacturing and selling PHILIP/PHILI
loafers in no less than 90 days. [Doc. No. 35 at p. 33:6-7.] Gap failed to do this. Rather,
it provided a Declaration from its Director of North America Finance, Chris Hubbard that
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merely states Gap is planning on continuing to sell off,for an unlimited period of time, an
undisclosed large number of PHILIP shoes in over 700 stores across the country and that it
will only eventually stop using PHILIP and PHILI on shoes. Specifically, Mr. Hubbard
stated: "Gap has no ability to precisely state the last date on which all units of products
will be sold through at all Gap stores throughout the U.S. (nearly 700 stores across the
country)." [Doc. No. 36 at p. 4, 8.]
The fact that Gap will continue to sell the similar shoes for an undisclosed amount
of time does constitute admissible evidence demonstrating irreparable harm. For example,
in Maxim Integrated Products, Inc. v. Quintana, 654 F. Supp.2d 1024, 1036 (N.D. Cal.
2009), the Court found a likelihood of irreparable harm existed due to "Defendants' lack
of evidence with regard to whether their manufacture and use of [the infringing] product
will continue in the future." See CytoSport, Inc. v. Vital Pharmaceuticals, Inc., 617 F.
Supp.2d 1051, 1081 (E. D. Cal. 2009) (finding irreparable harm, based in part, on
evidence that Defendant "continues to flood the marketplace with its [infringing] products
... "]
Second, Plaintiffs request this Court consider a piece of evidence that it did not
consider it is Order but was before the Court prior to its ruling: the Declaration of Peter
Grueterich's that Plaintiffs submitted in their Reply Brief in Support of their Motion for
Preliminary Injunction. Plaintiffs argue that Mr. Grueterich's Declaration supplements his
letter that the Court found inadmissible in its December 27, 2012 Order, and, when the two
[PROPOSED! ORDER GRANTING PLAINTIFFS' MOTION FOR RECONSIDERATION OF THIS
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documents are read together, they constitute "admissible evidence" that demonstrates
irreparable harm.
As the Court did not consider Mr. Grueterich's Declaration in its December 27,
2012 Order, it will do so now. Upon consideration, the Court finds that Mr. Grueterich's
Declaration does constitute "admissible evidence" indicating that "harm is real, imminent,
and significant." See Volkswagen AG v. Verdier Microbus & Camper, Inc., No. C 09-
00231 JSW, 2009 WL 928130, at* 6 (N.D. Cal. Apr. 3, 2009). Notably, Mr. Grueterich's
Declaration proffers admissible testimony, under penalty of petjury, regarding actual lost
revenues that have occurred since Gap stmied selling its similar products.
Furthermore, the Comi finds, upon reconsideration, that Mr. Grueterich's
Declaration provides the proper foundation for his letter that the Comi originally found
inadmissible. The Court also finds that those two pieces of evidence read together provide
"clear evidence, not speculation," regarding actual lost revenues that have occurred since
Gap's infringing products hit the market.
Third, Plaintiffs request this Comi reconsider its detennination that three (3) pieces
of evidence -- a letter from Peter Grueterich mentioned above, a website blog discussing
the substantial similarities between the parties' shoes, and an e-mail from JBTL's Officer
Lizette Hernandez to Plaintiffs -- did not establish irreparable harm. In pati, Plaintiffs
request this Court reconsider its determination that neither the website blog nor the e-mail
from Ms. Hernandez constitutes admissible evidence. In the alternative, Plaintiffs argue
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that, even if the website blog and e-mail are not admissible, this Comi can still consider
even inadmissible evidence at the preliminary injunction stage.
The Comi agrees. At the preliminary injunction stage, "the district comi may rely
on otherwise inadmissible evidence, including hearsay evidence." See Sierra Club, Lone
Star Chapter v. F.D.I.C., 992 F.2d. 545, 551 (5th Cir. 1993); see also Flynt Distributing
Co., Inc. v. Harvey, 734 F.2d 1389, 1394 (9th Cir. 1984) ("The urgency of obtaining a
preliminary injunction necessitates a prompt determination ... The trial comi may give
even inadmissible evidence some weight, when to do so serves the purpose of preventing
irreparable harm before trial."); see also Fidelity Nat. Title Ins. Co. v. Castle, No. C 11-
00896 SI, 2011 WL 5882878, at *3 (N.D.Cal. Nov. 23, 2011) ("Plaintiffs argue that the
evidence is admissible, but even if it is not, the Court may consider inadmissible evidence
at this juncture, when 'to do so serves the purpose of preventing irreparable harm before
trial' .... The Comi agrees."') "Accordingly, evidence which would be inadmissible at
trial may be considered." Overstreet ex rei. Nat 'l Labor Relations Bd. v. W. Prof'! Hockey
League, Inc., No. CV 09-0591 PHX ROS, 2009 WL 2905554, at * 2 (D. Ariz. Sept. 4
2009).
Consequently, upon reconsideration, the Comi finds that both the e-mail and blog
are admissible for purposes of the preliminary injunction and that they demonstrate
irreparable harm. Having reconsidered the above evidence, the Comi finds that Plaintiffs
have provided a sufficient amount of evidence that establishes the "harm is real, imminent,
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and significant." See Volkswagen AG v. Verdier Microbus & Camper, Inc., 2009 WL
928130, at* 6.
The Court will now evaluate whether Plaintiffs have established the remaining three
elements necessary to receive a preliminary injunction.
B. Remaining Three Elements Analysis
The Court also finds Plaintiffs have established the remaining three elements
necessary to receive a preliminary injunction: (1) they are likely to succeed on the merits;
(2) the balance of equities tips in their favor, and (3) a preliminary injunction is in the
public interest. See Winters, 555 U.S. at 29. The Court finds that Plaintiffs are likely to
succeed on their trademark infringement. To succeed on this claim, Plaintiffs must
satisfY two basic elements: (1) a valid protectable mark; and (2) a likelihood of confusion,
mistake, or deception in Defendant's use of the trademark (15 U.S.C. 1114). The Court
finds that Gap has committed infringement and unfair competition by using the
substantially similar "Phillip" or "Philli" mark on the inside of its loafers which are
substantially similar to an entire line of Charles Philip shoes. The Court also finds the
equities and public interest elements are met because both equity and the public interest
are served by preventing a company from manufacturing and selling a substantially
similar products as a start-up company, using the start up company's name and likeness.
28 ,,,_,,,,,,,,,,, '' ' ---- - - - ~ - - - - ' '''"'''' ' ' ,,,,,,, ,,,, ,,,,,,,,,,,,, '''' '' ' "'''''''''"--'"''"''''''"'' . , , , , ~ - - - - - - - - - - - - " '
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1 Accordingly, IT IS SO ORDERED that:
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1. This Court's Order Denying Plaintiffs' Request for a Preliminaty Injunction
is VACATED.
2. Defendant Gap, Inc. will not use the term PHILIP, PHILI or any derivation of
that mark on shoes. Fmiher it will not use the tenn PHILIP, PHILI or any derivation of
that mark on shoe related marketing materials where those shoes are substantially similar
to those shoes that designed or sold by Plaintiffs; and
3. Defendant Gap, Inc. will cease manufacturing (or requesting the manufacture)
12 AND selling of its PHILIP and PHILI loafers on or before March 3, 2013.
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4. This Order applies to any patiies who aid or abet Defendants sale, marketing
or distribution of the GAP PHILIP and/or PHILI (or any derivation thereof) shoes.
16 Provided they receive actual notice of this Order.
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Bond is set at $. ______ U.S. Dollars.
Dated: January __ , 2013.
DEAN D. PREGERSON
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Abates@Bates-Bates.com
BATES & BATES, LLC
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Phone: (404) 228-7439
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7 Jumbo Bright Trading Limited and Charles Anthony Philip Pozzi,
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II
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JUMBO BRIGHT TRADING )
LIMITED, a Hong Kong corporation, )
and CHARLES ANTHONY PHILIP )
POZZI, an individual )
vs.
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Plaintiffs, )
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MOTION FOR
COURT'S DECEMBER 27,2012
INJUNCTION
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THE GAP, INC., and DOES 1 through
Date: February 4, 2013
Time: 10:00 am
Comiroom: 3
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20 Defendants,
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TO THE HONORABLE COURT AND TO ALL PARTIES:
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PLEASE TAKE NOTICE that on February 4, 2012 at 10:00 a.m., or as
25 soon as possible thereafter, this matter for Plaintiffs' Motion for Reconsideration Of
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This Court's December 27, 2012 Order Denying Plaintiffs' Motion For A Preliminmy
~ . . ~ . ~ . """"" . " .. " " - " " " - - - ~ ~ ~ -" ---- ~ " - - - ~ J . . . --- --" .. ~ - - - - . - - - - - - - - - - - - - - - - - - - - - ~ - - - - - - - - -
MOTION FOR RECONSIDERATION OF THIS COURT'S DECEMBER 27,2012
ORDER DENYING PLAINTIFFS' MOTION FOR A PRELIMINARY
INJUNCTION
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Injunction may be heard by the above entitled Court. This Motion is premised on the
accompanying Memorandum for Reconsideration, all papers and proceedings in this
action as well as any arguments occurring at the hearing and the following:
1. The Defendant's indication that it will stop manufacturing rather than
selling the infringing shoes does not negate irreparable harm. In the case, Maxim
Integrated Products, Inc. V. Quintana, 654 F. Supp.2d 1024, 1036 (N.D. Cal. 2009),
the Court found a likelihood of irreparable harm existed due to, "Defendants' lack of
evidence with regard to whether their manufacture and use of [the infringing] product
will continue in the future."
2. The Comi should consider the Declaration of Peter Grueterich to establish
irreparable harm. The Declaration of Peter Cruet erich in Support of Plaintiffi' Reply
Brief in Support of Its Motion for Preliminary Injunction, was attached in support of a
demonstration of an immediate threatened injury. [Exhibit C to the Dec. of A. Bates]
3. This Comi may consider evidence that may be inadmissible at trial in the
preliminary injunction stage. Pursuant to Flynt Distributing Co., Inc. V. Harvey, 734
F.2d 1389, 1394 (9
111
Cir. 1984), "The trial comi may give even inadmissible evidence
some weight, when to do so serves the purposes of preventing irreparable harm before
trial."
... - ----- ---- -- - --- - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - - ~ - . 2 ... - ---------------- ------------- .. - -- ........... ----- - .... ------.. -..
MOTION FOR RECONSIDERATION OF THIS COURT'S DECEMBER 27, 2012
INJUNCTION
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4.
The record set forth by this Court following oral arguments on the
Plaintiffs' Motion for a Preliminary Injunction constitutes material facts to be
considered prior to the Order dated December 27, 2012, denying the Plaintiffs' Motion
for a Preliminary injunction. [Exhibit F to the Dec. of A. Bates].
All premises having been duly considered, Plaintiffs' respectfully request this
Court grant their Motion for Reconsideration, vacate the Order Denying Plaintiffs'
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Motion for a Preliminary Injunction and Grant the Plaintiffs' Motion for a Preliminary
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Injunction and for such further relief that this Court deems equitable and just.
Respectfully submitted this 4th day of January 2013.
BATES & BATES, LLC
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ANDREA E. BATES
BATES & BATES, LLC
JUMBO BRIGHT TRADING LIMITED and
CHARLES ANTHONY PHILIP POZZI
MOTION FOR RECONSIDERATION OF THIS COURT'S DECEMBER 27, 2012
INJUNCTION
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3 I hereby cetiify that a true and correct copy of the foregoing was furnished
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through the Court's CMIECF System addressed to all parties:
31st Floor
New York, NY 10017
drea E. Bates
MOTION FOR RECONSIDERATION OF THIS COURT'S DECEMBER 27,2012
INJUNCTION

Jumbo Bright v. Gap

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Jumbo Bright v. Gap

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Case 2:12-cv-08932-DDP-MAN Document 41 Filed 01/04/13 Page 1 of 3 Page ID #:1534

I ANDREA E. BATES, ESQ. SBN 192491

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