37 - Motion to Seal

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PLAINTIFF’S ADMIN. MOTION TO SEALCV 12-05072 MMC

JOHN W. SPIEGEL (SBN: 78935) [email protected] MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, Thirty-Fifth Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 JONATHAN H. BLAVIN (SBN: 230269) [email protected] JESSE M. CREED (SBN: 272595) [email protected] MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Attorneys for Plaintiff EMECO INDUSTRIES, INC.

UNITED STATES DISTRICT COURT

NORTHERN DISTRICT OF CALIFORNIA

SAN FRANCISCO DIVISION

EMECO INDUSTRIES, INC.,

Plaintiff,

v.

RESTORATION HARDWARE, INC., GARY FRIEDMAN, and DOES 1-10,

Defendants.

CASE NO. CV 12-05072 MMC

NOTICE OF MOTION AND MOTION FOR ADMINISTRATIVE RELIEF TO FILE DOCUMENTS UNDER SEAL (Local Rule 79 -5)

Judge: Hon. Maxine M. Chesney Date: December 14, 2012 Time: 9:00 a.m. Dept: Courtroom 7 - 19th Floor

Case3:12-cv-05072-MMC Document37 Filed11/30/12 Page1 of 2

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- 1 - PLAINTIFF’S ADMIN. MOTION TO SEALCV 12-05072 MMC

TO ALL PARTIES AND THEIR COUNSEL OF RECORD:

Pursuant to Civil Local Rules 79-5 and 7-11, Plaintiff Emeco Industries, Inc.

hereby gives notice to all counsel of record of its Motion for Administrative Relief to File Under

Seal portions of the following documents:

• Plaintiff’s Reply in Support of Motion for a Preliminary Injunction

• Supplemental Declaration of Jonathan H. Blavin in Support of Plaintiff’s

Motion for Preliminary Injunction (“Supp. Blavin Decl.”)

These documents contain information that Defendants have requested confidential

treatment of, and which Plaintiff is conditionally treating as “confidential” under the Northern

District of California’s Model Stipulated Protective Order for Standard Litigation pending the

Court’s entering of a protective order in the case.

Because Defendants have designated portions of these documents confidential,

Plaintiff does not need to file declaration establishing that the designated information is sealable

or a proposed sealing order, pursuant to Civil Local Rule 79-5(d). Plaintiff reserves its right to

challenge Defendants’ designation of these documents as confidential.

Attached to the Declaration of Jesse Max Creed in Support of Plaintiff’s

Administrative Motion to File Under Seal, Plaintiff has filed with the Court narrowly tailored,

public redacted versions of these documents.

Plaintiff hereby respectfully requests leave to file under seal the documents

Defendants designated as confidential set forth above.

DATED: November 30, 2012

MUNGER, TOLLES, & OLSON LLP

By:/s/ Jesse Max Creed JESSE MAX CREED Attorneys for Plaintiff Emeco Industries, Inc.

Case3:12-cv-05072-MMC Document37 Filed11/30/12 Page2 of 2

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CREED DECL. ACC. MOTION TO SEAL;CV 12-05072 MMC

JOHN W. SPIEGEL (SBN: 78935) [email protected] MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, Thirty-Fifth Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 JONATHAN H. BLAVIN (SBN: 230269) [email protected] JESSE MAX CREED (SBN: 272595) [email protected] MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 Telephone: (415) 512-4000 Facsimile: (415) 512-4077 Attorneys for Plaintiff EMECO INDUSTRIES, INC.




EMECO INDUSTRIES, INC.,

Plaintiff,

v.

RESTORATION HARDWARE, INC., GARY FRIEDMAN, and DOES 1-10,

Defendants.


DECLARATION OF JESSE MAX CREED ACCOMPANYING PLAINTIFF’S MOTION FOR ADMINISTRATIVE RELIEF TO FILE DOCUMENTS UNDER SEAL

Judge: Hon. Maxine M. Chesney Dept: Courtroom 7 - 19th Floor

Case3:12-cv-05072-MMC Document37-1 Filed11/30/12 Page1 of 2

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- 1 - CREED DECL. ACC. MOTION TO SEAL;CV 12-05072 MMC

I, Jesse Max Creed, hereby declare:

1. I am an attorney with the law firm Munger, Tolles & Olson LLP, counsel of record

for Plaintiff Emeco Industries, Inc. (“Emeco”) in the above-titled action. I am licensed in the

State of California and admitted to practice before this Court. I make this declaration based on

my personal knowledge, and, if called upon as a witness, I could and would testify competently as

to the matters set forth below.

2. Pursuant to the website of the Northern District of California, it is the

recommended practice to e-file a redacted version of confidential documents along with an

administrative motion to file documents under seal.

3. Attached hereto as Exhibit 1 is a true and correct copy of the public redacted

version of Plaintiff’s Reply in Support of Motion for a Preliminary Injunction.

4. Attached hereto as Exhibit 2 is a true and correct copy of the public redacted

version of the Supplemental Declaration of Jonathan H. Blavin in Support of Plaintiff’s Motion

for a Preliminary Injunction.

5. Emeco will lodge and serve in paper the administrative motion papers and

confidential documents pursuant to General Order 62(3) and Civil Local Rule 79-5(c)(3) & (4).

6. Emeco reserves the right to challenge Defendants’ designation of these documents

as confidential.

7. I declare under penalty of perjury under the laws of the United States of America

and the State of California that the foregoing is true and correct.

Executed on November 30, 2012 at San Francisco, California. DATED: November 30, 2012

MUNGER, TOLLES & OLSON LLP

By:/s/ Jesse Max Creed JESSE MAX CREED Attorneys for Plaintiff Emeco Industries, Inc.


EXHIBIT 1


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PL’S REPLY ISO PRE. INJ. MOT.; CASE NO. CV 12-05072 MMC

JOHN W. SPIEGEL (SBN: 78935) [email protected] MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, Thirty-Fifth Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 JONATHAN H. BLAVIN (SBN: 230269) [email protected] JESSE MAX CREED (SBN: 272595) [email protected] MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 Telephone: (415) 512-4000 Facsimile: (415) 512-4077

Attorneys for Plaintiff EMECO INDUSTRIES, INC.




EMECO INDUSTRIES, INC.

Plaintiff,

v.

RESTORATION HARDWARE, INC., GARY FRIEDMAN, and DOES 1-10.

Defendants.


PLAINTIFF’S REPLY IN SUPPORT OF MOTION FOR PRELIMINARY INJUNCTION

Date: December 14, 2012 Time: 9:00 a.m. Courtroom: 7 - 19th Floor Judge: Honorable Maxine M. Chesney

PUBLIC REDACTED VERSION


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TABLE OF CONTENTS

Page

- i -

I. INTRODUCTION .............................................................................................................. 1

II. EMECO HAS ESTABLISHED A LIKELIHOOD OF SUCCESS ON THE MERITS .............................................................................................................................. 2

A. Emeco’s Trade Dress and Trademarks Are Enforceable ........................................ 2

1. RH Has Not Proven “Genericness” ............................................................ 2

a. Emeco’s Trade Dress Is Not Generic .................................................... 2

b. Emeco’s Trademarks Are Not Generic ................................................. 6

2. RH Has Not Established Functionality ....................................................... 7

B. Emeco Has Established a Likelihood of Confusion................................................ 9

1. The Navy Chair® Marks Are Strong .......................................................... 9

2. Actual Confusion Exists............................................................................ 11

3. Remaining Key Sleekcraft Factors Favor Emeco ..................................... 12

III. EMECO HAS DEMONSTRATED IRREPARABLE HARM......................................... 13

IV. THE BALANCE OF HARDSHIPS TIPS SHARPLY IN EMECO’S FAVOR............... 15

V. THE PUBLIC INTEREST FAVORS AN INJUNCTION ............................................... 15

VI. CONCLUSION................................................................................................................. 15


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TABLE OF AUTHORITIES

Page

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FEDERAL CASES

Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6 (7th Cir. 1992)....................................................................................................... 15

Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619 (6th Cir. 2002)..................................................................................................... 2

adidas Am., Inc. v. Payless Shoesource, Inc., 529 F. Supp. 2d 1215 (D. Or. 2007) ..................................................................................... 1, 3

Anti-Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 684 F.2d 1316 (9th Cir. 1982)................................................................................................... 3

Au-Tomotive Gold, Inc. v. Volkswagen of Am, Inc., 457 F.3d 1062 (9th Cir. 2006)................................................................................................. 12

Aurora World, Inc. v. Ty Inc., 719 F. Supp. 2d 1115 (C.D. Cal. 2009) .................................................................................. 12

Australian Gold, Inc. v. Hatfield, 436 F.3d 1228 (10th Cir. 2006)............................................................................................... 12

Aztar Corp. v. NY Entm’t, LLC, 15 F. Supp. 2d 252 (E.D.N.Y. 1998)....................................................................................... 15

Banff, Ltd. v. Federated Dep’t Stores, Inc., 841 F.2d 486 (2d Cir. 1988).................................................................................................... 12

Berg v. Symons, 393 F. Supp. 2d 525 (S.D. Tex. 2005) ...................................................................................... 5

Blumenthal Distrib., Inc. v. Exec. Chair, Inc, 2010 WL 5980151 (E.D.N.Y. Nov. 9, 2010)............................................................................ 6

Boston Duck Tours, LP v. Super Duck Tours, LLC, 531 F.3d 1 (1st Cir. 2008) ......................................................................................................... 5

Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036 (9th Cir. 1999)......................................................................................... 1, 9, 12

Byrnes & Kiefer Co. v. Flavoripe Co., 1986 WL 15550 (W.D. Pa. Aug. 20, 1986) ............................................................................ 13

Cairns v. Franklin Mint Co., 292 F.3d 1139 (9th Cir. 2002)................................................................................................. 13

Cartier, Inc. v. Four Star Jewelry Creations, Inc., 2003 WL 21056809 (S.D.N.Y. May 8, 2003)......................................................................... 15


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TABLE OF AUTHORITIES (continued)

Page

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Centaur Commc’ns, Ltd. v. A/S/M Com., Inc., 830 F.2d 1217 (2d Cir. 1987).................................................................................................. 10

Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874 (Fed. Cir. 1992)................................................................................................. 12

Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175 (9th Cir. 1988)............................................................................................... 1, 3

Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.3d 1252 (9th Cir. 2001)................................................................................................... 7

Coach, Inc. v. Abner’s Fashion, 2009 WL 4810179 (C.D. Cal. Dec. 7, 2009) ............................................................................ 9

Conf. Archives, Inc. v. Sound Images, Inc., 2010 WL 1626072 (W.D. Pa. Mar. 31, 2010) .......................................................................... 5

Conopco, Inc. v. May Dep. Stores Co., 46 F.3d 1556 (Fed. Cir. 1994)................................................................................................. 11

Diamontiney v. Borg, 918 F.2d 793 (9th Cir. 1990)................................................................................................... 13

Disc Golf Ass’n, Inc. v. Champion Discs, Inc., 158 F.3d 1002 (9th Cir. 1998)............................................................................................... 7, 8

Dr. Rath Health Programs USA B.V. v. Juvenon, Inc., 2006 WL 2038037 (N.D. Cal. July 19, 2006)........................................................................... 2

E & J Gallo v. Proximo Spirits, Inc., 2012 WL 273076 (E.D. Cal. Jan. 30, 2012)............................................................................ 10

Engineered Mech. Servs., Inc. v. Applied Mech. Tech., Inc., 584 F. Supp. 1149 (M.D. La. 1984) .......................................................................................... 4

Entrepreneur Media, Inc. v. Smith, 279 F.3d 1135 (9th Cir. 2002)................................................................................................. 10

Fiji Water Co. v. Fiji Mineral Water USA, LLC, 741 F. Supp. 2d 1165 (C.D. Cal. 2010) .................................................................................... 6

Filipino Yellow Pages, Inc. v. Asian Journal Publications, Inc., 198 F.3d 1143 (9th Cir. 1999)............................................................................................... 4, 6

Firehouse Rest. Grp., Inc. v. Scurmont LLC, 2011 WL 3555704 (D.S.C. Aug. 11, 2011) .............................................................................. 5

Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025 (9th Cir. 2010)................................................................................................. 13


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Page

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Gasser Chair Co. v. Infanti Chair Mfg. Corp., 943 F. Supp. 201 (E.D.N.Y. 1996) ........................................................................................... 8

Genesee Brewing Co., Inc. v. Stroh Brewing Co., 124 F.3d 137 (2d Cir. 1997)...................................................................................................... 5

George & Co. v. Imagination Entm’t Ltd., 575 F.3d 383 (4th Cir. 2009)..................................................................................................... 6

Glover v. Ampak, Inc., 74 F.3d 57 (4th Cir. 1996)......................................................................................................... 5

Groupion, LLC v. Groupon, Inc., 859 F. Supp. 2d 1067 (N.D. Cal. 2012) .................................................................................. 13

Haritatos v. Hasbro, Inc., 2007 WL 3124626 (N.D.N.Y Oct. 23, 2007) ........................................................................... 5

Heptagon Creations, Ltd. v. Core Grp. Mktg. LLC, 2011 WL 6600267 (S.D.N.Y. Dec. 22, 2011) .......................................................................... 8

Herman Miller Inc. v. Alphaville Design Inc., 2009 WL 3429739 (N.D. Cal. Oct. 22, 2009)................................................................... 11, 13

Hermes Int’l v. Lederer de Paris Fifth Ave., Inc., 219 F.3d 104 (2d Cir. 2000).................................................................................................. 4, 5

Imagineering, Inc. v. Van Klassens, Inc., 53 F.3d 1260 (Fed. Cir. 1995)................................................................................................... 8

In re Trade-Mark Cases, 100 U.S. 82 (1879) .................................................................................................................... 5

Int’l Jensen, Inc. v. Metrosound U.S.A., Inc., 4 F.3d 819 (9th Cir. 1993)......................................................................................................... 2

Int’l Kennel Club. v. Mighty Star, Inc., 846 F.2d 1079 (7th Cir. 1988)................................................................................................. 14

Inwood Labs., Inc. v. Ives Labs., Inc., 456 U.S. 844 (1982) .............................................................................................................. 7, 8

KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc., 408 F.3d 596 (9th Cir. 2005)................................................................................................. 4, 5

Leatherman Tool Group, Inc. v. Coast Cutlery Co., 823 F. Supp. 2d 1150 (D. Or. 2011) ....................................................................................... 14

LeSportsac, Inc. v. K–Mart Corp., 754 F.2d 71 (2d Cir. 1985)........................................................................................................ 8


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Page

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Levi Strauss & Co. v. Abercrombie & Fitch Trading Co., 2008 WL 4614660 (N.D. Cal. Oct. 16, 2008)........................................................................... 4

Levi Strauss & Co. v. Shilon, 121 F.3d 1309 (9th Cir. 1997)............................................................................................. 2, 14

Lewis Mgmt. Co. v. Corel Corp., 1995 WL 724835 (S.D. Cal. June 28, 1995)........................................................................... 13

LGS Architects, Inc. v. Concordia Homes of Nev., 434 F.3d 1150 (9th Cir. 2006)................................................................................................. 15

Linotype Co. v. Varityper, Inc., 1989 WL 94338 (S.D.N.Y. Aug. 4, 1989) .............................................................................. 15

Lorillard Tobaco Co. v. S&M Brands, Inc., 616 F. Supp. 2d 581 (E.D. Va. 2009)...................................................................................... 15

Lumber Liquidators, Inc. v. Stone Mountain Carpet Mills, Inc., 2009 WL 2013599 (E.D. Va. July 10, 2009) .......................................................................... 10

Magic Wand, Inc. v. RDB, Inc., 940 F.2d 638 (Fed. Cir. 1991)................................................................................................... 3

Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881 (9th Cir. 1996)..................................................................................................... 10

Malletier v. Burlington Coat Factory Warehouse, 426 F.3d 532 (2d Cir. 2005).................................................................................................... 13

Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558 (S.D.N.Y. 2007)..................................................................................... 12

Marks Org., Inc. v. Joles, 784 F. Supp. 2d 322 (S.D.N.Y. 2011)..................................................................................... 14

Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp. 2d 1197 (C.D. Cal. 2007) .................................................................................. 14

Neighborhood Assistance Corp. of Am. v. First One Lending Corp., 2012 WL 1698368 (C.D. Cal. May 15, 2012) ........................................................................ 10

Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137 (9th Cir. 2011)................................................................................................... 7

P3 Int’l v. Weitech Inc., 1999 WL 1020249 (S.D.N.Y. Oct. 6, 1999) ............................................................................. 7

Polo Fashions, Inc. v. Dick Bruhn, Inc., 793 F.2d 1132 (9th Cir. 1986)................................................................................................. 14


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Page

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Power Balance LLC v. Power Force LLC, 2010 WL 5174957 (C.D. Cal. Dec. 14, 2010) .............................................................. 9

Quality Inns Int’l, Inc. v. McDonald’s Corp., 695 F. Supp. 198 (D. Md. 1988) ............................................................................................... 4

Rebel Debutante LLC v. Forsythe Cosmetic Grp., Ltd., 799 F. Supp. 2d 558 (M.D.N.C. 2011).................................................................................... 14

Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126 (9th Cir. 2006)................................................................................................... 7

Schutz Cont., Inc. v. Mauser Corp., 2012 WL 1073153 (N.D. Ga. Mar. 28, 2012)........................................................................... 4

Secalt S.A. v. Wuxi Shenxi Constr. Mach. Co., 668 F.3d 677 (9th Cir. 2012)..................................................................................................... 8

Shuffle Master Inc. v. Awada, 2006 WL 2547091 (D. Nev. Aug. 31, 2006) .......................................................................... 11

STX, Inc. v. Bauer USA, Inc., 1997 WL 337578 (N.D. Cal. June 5, 1997) .............................................................................. 3

SunEarth, Inc. v. Sun Earth Solar Power Co., 846 F. Supp. 2d 1063 (N.D. Cal. 2012) .................................................................................. 13

Tools USA & Equip. Co. v. Champ Frame Straightening Equip. Inc., 87 F.3d 654 (4th Cir. 1996)....................................................................................................... 7

Uni. Furniture Int’l, Inc. v. Collezione Europa USA, Inc., 2005 WL 2427898 (M.D.N.C. 2005)...................................................................................... 14

United States v. Guerra, 293 F.3d 1279 (11th Cir. 2002)........................................................................................... 9, 13

United States v. Lam, 677 F.3d 190 (4th Cir. 2012)..................................................................................................... 9

Vision Sports, Inc. v. Melville Corp., 888 F.2d 609 (9th Cir. 1989)................................................................................................... 10

Volkswagen AG v. Verdier Microbus & Camper, Inc., 2009 WL 928130 (N.D. Cal. Apr. 3, 2009) .............................................................................. 8

Walker & Zanger, Inc. v. Paragon Ind., Inc., 465 F. Supp. 2d 956 (N.D. Cal. 2006) ...................................................................................... 6

WE Media Inc. v. Gen. Elec. Co., 218 F. Supp. 2d 463 (S.D.N.Y. 2002)............................................................................... 11, 12


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Page

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Yellow Cab Co. of Sacramento v. Yellow Cab of Elk Grove, Inc., 419 F.3d 925 (9th Cir. 2005)..................................................................................................... 5

Zino Davidoff SA v. CVS Corp., 571 F.3d 238 (2d Cir. 2009).................................................................................................... 14

Zobmondo Entm’t, LLC v. Falls Media, LLC, 602 F.3d 1108 (9th Cir. 2010)................................................................................................... 2

STATUTES AND RULES

15 U.S.C. § 1064(3) ........................................................................................................................ 4

15 U.S.C. § 1127............................................................................................................................. 9

OTHER AUTHORITIES

2 McCarthy § 11:76 .................................................................................................................. 9, 10

2 McCarthy § 12:14 ........................................................................................................................ 5

3 McCarthy § 17:12 ........................................................................................................................ 4


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- 1 - PL’S REPLY ISO PRE. INJ. MOT.; CASE NO. CV 12-05072 MMC

I. INTRODUCTION

As Restoration Hardware’s (RH) Opposition confirms, it is asking this Court for a license

to sell cheap Chinese counterfeits of a federally-registered and protected product design made in

the United States. Not surprisingly, the law does not allow this result. RH is engaging in blatant

acts of infringement, and its defenses are foreclosed by controlling Ninth Circuit law.

Emeco’s likely success on the merits is clear. RH’s “genericness” defense is as cynical as

it is meritless, and does nothing to undermine the validity of Emeco’s marks. At base, RH argues

that because others are selling infringing products, it deserves a free pass. But evidence of “other

potential infringers” is “irrelevant under the law of this circuit.” Century 21 Real Estate Corp. v.

Sandlin, 846 F.2d 1175, 1181 (9th Cir. 1988). RH’s “‘argument is no more persuasive than that

of a drunken driver who pleads to be let off because there are ‘lots of other drunk drivers on the

road—why pick on me?’ This is not a ‘defense,’ nor should it be.’” adidas Am., Inc. v. Payless

Shoesource, Inc., 529 F. Supp. 2d 1215, 1258, 1260 (D. Or. 2007) (quoting McCarthy § 17:17).

As to the likelihood of confusion, the Ninth Circuit has made clear that where, as is the

case here, there is a “virtual identity of marks” with “identical products,” the “likelihood of

confusion would follow as a matter of course.” Brookfield Commc’ns, Inc. v. W. Coast Entm’t

Corp., 174 F.3d 1036, 1056 (9th Cir. 1999). RH ignores such law, and instead relies on an

irrelevant, and deeply flawed, survey as to whether consumers specifically identify Emeco as the

source of the Navy Chair® design. Not only does this survey at best go solely to secondary

meaning—which RH is foreclosed from challenging given Emeco’s incontestable marks—but it

fails to meet the very standards its designer has criticized other surveys as lacking.

Moreover, RH’s intent to infringe is obvious. Beyond being the subject of repeated

infringement actions and touting to potential investors its established practice of misappropriating

others’ designs (none of which RH denies),


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The equities cry out for an injunction. Emeco has submitted substantial, unrebutted

evidence of the massive harm it already has suffered as a result of RH’s flooding of the market

with millions of catalogs and website displays featuring its infringing products, and the enormous

harm it would plainly suffer if RH resumes selling its chairs. Emeco’s need for corrective notice

is manifest, and RH admittedly will suffer no burden from an injunction precluding sales which it

already has purportedly ceased. Under established Ninth Circuit law, Emeco’s entitlement to an

injunction is clear. See Levi Strauss & Co. v. Shilon, 121 F.3d 1309, 1314 (9th Cir. 1997).

II. EMECO HAS ESTABLISHED A LIKELIHOOD OF SUCCESS ON THE MERITS

A. Emeco’s Trade Dress and Trademarks Are Enforceable

RH does not dispute that Emeco’s marks are subject to incontestable registrations, have a

“strong presumption of validity,” and that it must prove genericness and functionality by a

“preponderance of the evidence.” Zobmondo Entm’t, LLC v. Falls Media, LLC, 602 F.3d 1108,

1113-14 (9th Cir. 2010). Despite RH’s attempt to borrow a “substantial questions” standard from

the patent context (Opp. at 6), the law is clear that a party must establish “great doubt as to the

validity of the trademark” to avoid an injunction. Int’l Jensen, Inc. v. Metrosound U.S.A., Inc., 4

F.3d 819, 822 (9th Cir. 1993) (emphasis added); Dr. Rath Health Programs USA B.V. v. Juvenon,

Inc., 2006 WL 2038037, at *1 (N.D. Cal. July 19, 2006). RH has not met that burden here.

1. RH Has Not Proven “Genericness”

a. Emeco’s Trade Dress Is Not Generic

RH has not come close to establishing that Emeco’s trade dress in the design of the Navy

Chair® is “generic,” i.e., that the “design” is “regarded by the public as the basic form of a

particular item”— which courts consider a “severe condemnation.” Abercrombie & Fitch Stores,

Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 639 (6th Cir. 2002).

Beyond the distorted interpretation of an Emeco employee’s statement, infra p. 5, RH’s

evidence consists entirely of scattered instances of third parties selling chairs similar to the Navy


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Chair®. These cherry-picked examples from the Internet are not, as RH misleadingly suggests

(Opp. at 10), competitors innocently using a “basic form” of a chair, but rather are imitations and

likely infringements of the Navy Chair® itself. Indeed, one of the very chairs RH highlights (The

Lexmod Sailor Chair, Dkt. 27, Ex. 14), is described on other sites as an “emeco navy chair,”

Blavin Suppl. Decl. (“Suppl. Decl.”), Ex. 1. This same design, cited throughout RH’s papers

(Dkt. 27, Exs. 9, 14-15), is marketed elsewhere as “Replica Emeco” and “Emeco Repro,” Supp.

Decl., Exs. 2-3. If anything, the “industry” use RH points to is composed of other knockoffs that

frequently refer back to Emeco. And as RH’s “lineup” shows (Opp. at 11), RH’s chair by far

most closely resembles the Emeco original (chairs #2 and #5 in lineup order).1

The existence of other third-party infringers does not give RH a license to engage in

illegal conduct. Indeed, evidence of “other potential infringers” is “irrelevant under the law of

this circuit.” Century 21 Real Estate Corp. v. Sandlin, 846 F.2d 1175, 1181 (9th Cir. 1988).2 As

the court held in adidas in rejecting the defendant’s similar argument that adidas’s sneaker trade

dress was generic given that “numerous third parties” sold similar “two- and four-stripe designs”:

[T]he Ninth Circuit has held that the mere existence of third-party infringers is irrelevant. . . . ‘[Defendant’s] argument is no more persuasive than that of a drunken driver who pleads to be let off because there are ‘lots of other drunk drivers on the road—why pick on me?’ This is not a ‘defense,’ nor should it be. . . .

529 F. Supp. 2d at 1258, 1260 (quoting McCarthy § 17:17). At best, this “‘genericness’ defense”

premised on similar third-party use “relates solely to the strength” of the marks under the

1 The other design RH highlights, a chair with 4 wavy lines without a curved bar on the back (Dkt. 27, Exs. 8, 12-13), is readily distinguishable from the Navy Chair® (Mot. at 15, 17 n.6). RH also points to a handful of military contractors who historically have made similar (though not identical) chairs solely for the Navy, see Dkt. 27, Exs. 4-7. As RH’s own documents state, “most” of these kinds of chairs were “commissioned from Emeco.” Id., Ex. 5. RH offers no evidence that such companies have ever sold such chairs to the public, as Emeco does and which is the basis of its trade dress rights, or even what their sales were to the Navy. Putting aside the question of whether these products also may infringe Emeco’s rights, RH cannot rely on negligible third-party sales to the Navy from half a century ago (or today) to establish use within the entire consumer market such that the public views the chair as generic. As the Ninth Circuit has held, where a “small number of people use a particular” mark in a limited market, the mark does “not become generic” and a party may “register it” for “nationwide” use, as Emeco has done here. Anti-Monopoly, Inc. v. Gen. Mills Fun Grp., Inc., 684 F.2d 1316, 1321 (9th Cir. 1982); see also Magic Wand, Inc. v. RDB, Inc., 940 F.2d 638, 641 (Fed. Cir. 1991) (use by “small part of the relevant purchasing public has limited probative value” and is “not enough to show generic use”). 2 See also STX, Inc. v. Bauer USA, Inc., 1997 WL 337578, at *13 (N.D. Cal. June 5, 1997) (“[E]vidence of other potential infringers is ‘irrelevant’ to a suit against a particular infringer.”).


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likelihood of confusion analysis—irrelevant here because of the identical copying at issue (infra

p. 10)—but does not establish invalidity. Id. at 1260 (emphasis added); see Levi Strauss & Co. v.

Abercrombie & Fitch Trading Co., 2008 WL 4614660, at *10 (N.D. Cal. Oct. 16, 2008) (rejecting

“generic” defense; “other jeans manufacturers using designs purportedly similar” only “impacted

[mark’s] strength”); Quality Inns Int’l, Inc. v. McDonald’s Corp., 695 F. Supp. 198, 214 (D. Md.

1988) (“evidence of third-party uses” is “probative only” of marks’ “strength” and “will not

preclude the[ir] enforcement”); Schutz Cont., Inc. v. Mauser Corp., 2012 WL 1073153, at *19

(N.D. Ga. Mar. 28, 2012) (“other possible infringers . . . falls woefully short” of “generic use”).

Indeed, the “owner of a mark is not required to constantly monitor every nook and cranny

of the entire nation” for “possible infringer[s].” Engineered Mech. Servs., Inc. v. Applied Mech.

Tech., Inc., 584 F. Supp. 1149, 1160 (M.D. La. 1984). Here, Emeco has submitted extensive

unrebutted evidence that it vigorously enforces its rights. Dkt. 10-1 ¶¶ 21-23 & Ex. C. It has

successfully taken action against some of the very designs RH repeatedly highlights (Dkt. 27,

Exs. 9, 14-15), including in a high-profile dispute with Target in 2005 covered by The New York

Times and Washington Post. Id. ¶ 22; Suppl. Decl., Exs. 4-6; Hermes Int’l v. Lederer de Paris

Fifth Ave., Inc., 219 F.3d 104, 110 (2d Cir. 2000) (“Far from establishing that Hermès’ designs

have become generic,” it “vigorously pursued manufacturers of knockoff goods”).3

Moreover, RH’s showing is fundamentally inadequate because it has not put forth any

evidence that the trade dress is viewed as generic by “the consuming public,” rendering the court

“without a sufficient evidentiary basis” to so hold. KP Permanent Make-Up, Inc. v. Lasting

Impression I, Inc., 408 F.3d 596, 606 (9th Cir. 2005) (emphasis added); Filipino Yellow Pages,

Inc. v. Asian Journal Publications, Inc., 198 F.3d 1143, 1148 (9th Cir. 1999) (“‘ultimate test’ for

genericness” is how mark “understood by the consuming public”). As the Lanham Act states:

“The primary significance of the registered mark to the relevant public . . . shall be the test for

determining whether” a “mark” is “generic.” 15 U.S.C. § 1064(3) (emphasis added). Thus,

“[c]onsumer surveys have become almost de rigeur in litigation over genericness” and a litigant 3 RH has not come close to establishing abandonment, which requires, by “clear and convincing” evidence, that “‘all rights of protection have been lost,” Levi Strauss, 2008 WL 4614660, at *10. Indeed, “courts are reluctant to find an abandonment.” 3 McCarthy § 17:12.


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“who does not introduce a survey to support a generic challenge may be viewed as less than

serious.” 2 McCarthy § 12:14; Hermes, 219 F.3d at 110 (genericness “require[s]” a “‘highly

factual analysis of consumer perception’”).4 Courts repeatedly have rejected genericness claims

where, as here, the defendant provides no evidence as to whether the public perceives the marks

as generic. See KP, 408 F.3d at 606; Boston Duck Tours, LP v. Super Duck Tours, LLC, 531 F.3d

1, 28 (1st Cir. 2008) (rejecting claim that logo generic where “[o]ther than industry use, there is

no evidence in the record establishing how the consumer population perceives the image”).5

RH’s other arguments are equally meritless. It entirely misconstrues a statement in a

video from an Emeco employee (Magnus Breitling) that the chair was based on a “generic wood

chair.” Opp. at 11. At the outset, the statement is irrelevant because “the word ‘generic’ has a

specific legal meaning . . . in trademark law [that] is not the proper subject matter for lay

testimony.” Firehouse Grp. v. Scurmont, 2011 WL 3555704, at *7 n.6 (D.S.C. Aug. 11, 2011).

Indeed, the Ninth Circuit has rejected similar attempts to contort a party’s statements to establish

genericness. KP, 408 F.3d at 605 (rejecting claim that founder’s statement “used [mark] as a

generic term”). And as Mr. Breitling testifies, this statement was simply meant to convey that the

design took inspiration from existing wooden farm-house style chairs. Breitling Decl. ¶¶ 2-8.6 4 RH’s survey did not ask respondents whether they viewed the Navy Chair® as the “basic” form of a chair. And neither RH nor Mr. Poret offer its results on genericness; rather, Mr. Poret describes its “purpose” as to determine which consumers “associate” the chair with Emeco, Dkt. 26-17, Ex. 1 at 3, which is relevant, at best, to secondary meaning (infra pp. 10-11). See Genesee Brewing Co., Inc. v. Stroh Brewing Co., 124 F.3d 137, 143 n.4 (2d Cir. 1997) (survey that asked whether “consumers associate ‘Honey Brown’ with beer from one source” relevant to “secondary meaning” but not genericness where failed to ask whether consumers viewed it as basic “category of beer,” an “important” omission “for determining whether ‘Honey Brown’ is generic”). 5 See also Glover v. Ampak, Inc., 74 F.3d 57, 60 (4th Cir. 1996) (genericness not established where evidence showed that “many knives” used plaintiff’s marks and trade dress but no “consumer surveys” or other evidence of “public’s understanding”); Haritatos v. Hasbro, Inc., 2007 WL 3124626, at *5 (N.D.N.Y Oct. 23, 2007) (“extensive third-party use” did not establish “generic” where “Defendants have not produced any consumer surveys or other such evidence showing that the purchasing public perceives the term ‘candyland’ as a generic term”). 6 Moreover, even if historically there were similar designs, “[o]riginality is not an element of trade dress protection.” Berg v. Symons, 393 F. Supp. 2d 525, 551 n.15 (S.D. Tex. 2005); see also Conf. Archives, Inc. v. Sound Images, Inc., 2010 WL 1626072, at *10 (W.D. Pa. Mar. 31, 2010) (“[T]rade dress protection appl[ies] . . . even if unoriginal”); In re Trade-Mark Cases, 100 U.S. 82, 94 (1879) (trademark “generally is, the adoption of something already in existence’”). The critical question for genericness is whether the consuming public regards the mark as generic today, the “crucial date,” Yellow Cab Co. of Sacramento v. Yellow Cab of Elk Grove, Inc., 419 F.3d 925, 928 (9th Cir. 2005), which RH’s examples of primarily infringing use do not establish.


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Finally, RH’s conclusory claim that the Navy Chair® trade dress is “generic” because it is

“merely the basic form of a type of a chair” (Opp. at 10) is meritless. Emeco’s trade dress seeks

to protect a specific, concrete expression of a particular design (demonstrated by the registration

drawings, numerous images, and a detailed list of claimed elements). As courts have held, a chair

is neither generic nor does it seek to protect a basic form of an article [where] [i]t does not seek trade dress protection in all chairs, or all office chairs, or even all mesh-backed office chairs. Plaintiff seeks trade dress protection in the specific, concrete expression of the particular chair design manifested by [the identified] configurations.

Blumenthal Distrib., Inc. v. Exec. Chair, Inc, 2010 WL 5980151, at *8 (E.D.N.Y. Nov. 9, 2010).7

And if the chair’s design was nothing more than the “basic” form of a chair, it would not be

celebrated today as an icon of modern design that is featured in museums around the world and

which has won numerous design awards (none of which RH disputes). See Mot. at 3-4; Fiji

Water Co. v. Fiji Mineral Water USA, LLC, 741 F. Supp. 2d 1165, 1176 (C.D. Cal. 2010) (that

plaintiff “won international awards” for “design innovation” “is strong evidence” that its trade

dress is “unique or unusual in the field and not simply a variation on existing . . . designs”).

b. Emeco’s Trademarks Are Not Generic

As with its trade dress arguments, RH’s failure to provide any survey or other evidence

establishing whether the public views “The Navy Chair®” trademark as generic—referring to a

general “type of product,” Filipino, 198 F.3d at 1147—renders its submission inadequate. Third-

party use alone is insufficient to prove genericness, particularly where such use is infringing.

Moreover, “The Navy Chair®” mark is at the very least descriptive, and because the mark

is incontestable, RH cannot challenge its validity. As RH agrees, the USPTO determined that the

mark was “descriptive,” not generic, because it describes a “particular style of chair commonly

used by the Navy,” not a general type of product, and awarded registration due to evidence it had

“acquired secondary meaning.” Opp. at 9; see also George & Co. v. Imagination Entm’t Ltd.,

575 F.3d 383, 395 (4th Cir. 2009) (court “obligated to defer” to USPTO determination that mark

is “descriptive”). RH itself describes its use of “naval” as a “descriptive word for something

designed and used by the U.S. Navy.” Opp. at 19. RH’s challenge is thus “foreclosed by

7 By contrast, in Walker & Zanger, Inc. v. Paragon Ind., Inc., 465 F. Supp. 2d 956, 964 (N.D. Cal. 2006) (Opp. at 10), the plaintiff sought to protect “abstract images or marketing themes.”


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hornbook trademark law. . . ‘[It] cannot assert that an incontestable mark is invalid because it is

descriptive. . . .” Reno Air Racing Ass’n, Inc. v. McCord, 452 F.3d 1126, 1135 (9th Cir. 2006).8

2. RH Has Not Established Functionality

RH has not established that Emeco’s trade dress in the design of the Navy Chair® is

functional, i.e., that it is “essential to the use or purpose” of the chair. Inwood Labs., Inc. v. Ives

Labs., Inc., 456 U.S. 844, 850 n.10 (1982) (emphasis added). RH’s entire defense is based on

nothing more than conclusory attorney argument, and on that basis alone should be rejected. See,

e.g., Tools USA & Equip. Co. v. Champ Frame Straightening Equip. Inc., 87 F.3d 654, 658 (4th

Cir. 1996) (rejecting functionality defense where defendant “cites no evidence, and offers no

argument beyond conclusory statements”). And at any rate, RH’s specific claims are meritless.

RH points to statements that the Navy Chair® is “utilitarian” and “suitable for use on

warships and submarines” (Opp. at 12) but overlooks the fact that these advantages stem solely

from Emeco’s manufacturing process, and that the inquiry must “not focus on the usefulness of

the article overall,” but rather the “exact feature or combination of features that is claimed as a

protectable trade dress or mark.” Disc Golf Ass’n, Inc. v. Champion Discs, Inc., 158 F.3d 1002,

1008 (9th Cir. 1998); Mot. at 14 & 16 n.4. And RH entirely ignores the substantial advertising

and marketing evidence touting the chair’s aesthetic beauty, independent of any utilitarian

advantages, which is an independent factor supporting nonfunctionality. Mot. at 15-16.

Further, RH’s focus on individual design elements disregards that the design “must be

examined as a whole, not by its individual constituent parts.” Clicks Billiards, Inc. v. Sixshooters,

Inc., 251 F.3d 1252, 1259 (9th Cir. 2001); Mot. at 13-14. Because RH “has presented no

evidence that the combination of qualities that constitutes plaintiff’s trade dress is essential to the

effective functioning” of the chair, it “has not sustained” its “burden” even if it could

“demonstrate[] that each aspect of plaintiff’s trade dress serves a functional purpose.” P3 Int’l v.

Weitech Inc., 1999 WL 1020249, at *4 (S.D.N.Y. Oct. 6, 1999) (emphasis added). Indeed, RH

has not even identified any specific elements that are “essential to the use or purpose” of the

8 Because the “111 Navy Chair®,” which refers to the 111 Coke bottles that are used to construct each chair, requires a “mental leap,” it is suggestive and thus inherently distinctive. See Network Automation, Inc. v. Advanced Sys. Concepts, Inc., 638 F.3d 1137, 1150 (9th Cir. 2011).


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chair. 456 U.S. at 850 n.10 (emphasis added). RH states, e.g., that the three bars and lower curve

on the seat back “offer a place to grip the chair” and the rounded and one-piece design “offer[s]

back support” and “avoids sharp corners.” Opp. at 12. But a “feature that merely accommodates

a useful function,” such as a place to grip the chair or avoid a sharp corner, which is all RH has

shown, is “not enough.” LeSportsac, Inc. v. K–Mart Corp., 754 F.2d 71, 76 (2d Cir. 1985).

These elements are “not essential to the functioning of the chair.” Gasser Chair Co. v. Infanti

Chair Mfg. Corp., 943 F. Supp. 201, 214 (E.D.N.Y. 1996); Imagineering, Inc. v. Van Klassens,

Inc., 53 F.3d 1260, 1262 (Fed. Cir. 1995) (trade dress protection for chair with “wide slats,

scooped seat boards and arms, rounded edges, notched and curved legs, and angled backrests”).9

RH argues that because some alternative aluminum chair designs may be similar, this

supports functionality. But even if alternative designs “look similar, but not identical,” “[t]his

does not” favor a “finding of functionality” because “none of them offer exactly the same

features” as the plaintiff’s product. Secalt S.A. v. Wuxi Shenxi Constr. Mach. Co., 668 F.3d 677,

686 (9th Cir. 2012). Further, there are a plethora of alternative aluminum chairs that look nothing

like the Navy Chair® (Suppl. Decl., Exs. 7-10):

Finally, RH argues that it is able to build its chair cheaply, but the question is whether the

“design results from a comparatively simple or inexpensive method of manufacture.” Disc Golf,

158 F.3d at 1006 (emphasis added). The evidence shows that the chair’s design is not dictated by

cost, as Emeco’s manufacturing process results in the same design at a higher cost. Mot. at 16.

B. Emeco Has Established a Likelihood of Confusion

RH’s lengthy discussion of the likelihood of consumer confusion disregards the simple

9 Heptagon Creations, Ltd. v. Core Grp. Mktg. LLC, 2011 WL 6600267 (S.D.N.Y. Dec. 22, 2011) (Opp. at 13), is inapposite. There, the court stated that the chair’s trade dress was functional because it served “aesthetic” purposes, but in this Circuit, features with “aesthetic purposes” support non-functionality. Volkswagen AG v. Verdier Microbus & Camper, Inc., 2009 WL 928130, at *5 (N.D. Cal. Apr. 3, 2009); Mot. at 13-14.


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reality that it is selling identical counterfeit goods, and under settled law, confusion is presumed

as a matter of law. See Brookfield, 174 F.3d at 1056; Power Balance LLC v. Power Force LLC,

2010 WL 5174957, at *4 (C.D. Cal. Dec. 14, 2010) (given “identicality” of products, “Court

presumes the likelihood of confusion” for “trade dress claims”); Mot. at 19.

RH half-heartedly argues that while its “chairs look similar to Plaintiff’s chairs” (Opp. at

15)—indeed, they are identical—and while it is using the near-identical “Naval Chair” name, it is

not selling “counterfeit” items because it is “not us[ing] the Emeco name,” and it marketed the

chairs “in its own catalog and on its own website.” Opp. at 15. That is all irrelevant. The test for

a counterfeit good is simply whether it is “identical with, or substantially indistinguishable from,

a registered mark,” 15 U.S.C. § 1127, which is plainly the case here. The marks at issue are the

design of the Navy Chair® and “The Navy Chair®” and “111 Navy Chair®” marks, not

“Emeco.” Indeed, RH could have branded the chairs something else entirely, but they still would

have been counterfeits of the chair’s design. A party “cannot avoid liability simply by affixing a

single tag that says something other” than the brand name “to counterfeit merchandise.” Coach,

Inc. v. Abner’s Fashion, 2009 WL 4810179, at *3 (C.D. Cal. Dec. 7, 2009). Further, that RH sold

the chairs in its own catalog, stores, and website is immaterial; that fake Rolex watches are sold

on street corners rather than in Rolex stores does not make them any less counterfeit.

And in fact, RH’s products do “not have to be an exact replica of [the] registered” Navy

Chair® marks “to be deemed a counterfeit.” United States v. Lam, 677 F.3d 190, 199 (4th Cir.

2012). “Such an interpretation would allow counterfeiters to escape liability by modifying the

registered trademarks of their honest competitors in trivial ways.’” United States v. Guerra, 293

F.3d 1279, 1288 (11th Cir. 2002). The likelihood of confusion is presumed as a matter of law.

That begins and ends the inquiry. And in any event, RH’s arguments as to the specific Sleekcraft

factors are deeply flawed and in no way rebut the presumption.

1. The Navy Chair® Marks Are Strong

At the outset, even if Emeco’s marks were weak, which they are not, this is irrelevant

because where the products are “nearly identical,” the “strength of the mark is of diminished

importance.” Brookfield, 174 F.3d at 1058-59; 2 McCarthy § 11:76 (strength of mark “of little


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importance where the conflicting mark is identical”). In any event, because the marks are

incontestable, this provides “conclusive proof” of secondary meaning, Entrepreneur Media, Inc.

v. Smith, 279 F.3d 1135, 1142 n.3 (9th Cir. 2002), and a “mark is the strongest kind of mark”

where “it is a registered trademark that became incontestable.” Neighborhood Assistance Corp.

of Am. v. First One Lending Corp., 2012 WL 1698368, at *17 (C.D. Cal. May 15, 2012).10

Further, Emeco has submitted extensive evidence establishing secondary meaning, including

RH’s indisputable copying that “strongly supports an inference of secondary meaning,” Vision

Sports, Inc. v. Melville Corp., 888 F.2d 609, 615 (9th Cir. 1989), Emeco’s expenditure of

substantial sums promoting the chair, numerous articles and television shows featuring the chair,

its inclusion in modern art museums, and its winning of several design awards. Mot. at 17-18.

Ignoring all of this, RH improperly relies upon a survey by Hal Poret to purportedly

demonstrate that Emeco’s marks lack secondary meaning. See Opp. at 15-16. Because the marks

“are incontestable as a matter of law,” this “survey” cannot be used to establish that they “lack[]

secondary meaning.” Lumber Liquidators, Inc. v. Stone Mountain Carpet Mills, Inc., 2009 WL

2013599, at *9 (E.D. Va. July 10, 2009). But even if the survey were relevant, its results are

meaningless. Mr. Poret began with two questions: “Do you associate the overall look of this

chair with any particular company or brand of chair or do you not?,” and if yes to that question,

“With what company or brand of chair do you associate the overall look of this chair?” Dkt. 26-

17, Ex. 1 at 5. RH argues that because a small percentage of respondents to the second question

specifically identified Emeco as the source, there is no secondary meaning (Opp. at 16).

But that is not the proper inquiry. A showing of secondary meaning only requires “that

the public associate[]” the product “with a single source, even if that source is anonymous.”

Maljack Prods., Inc. v. GoodTimes Home Video Corp., 81 F.3d 881, 887 (9th Cir. 1996); Centaur

Commc’ns, Ltd. v. A/S/M Com., Inc., 830 F.2d 1217, 1221 (2d Cir. 1987) (public need “not know

the name of the producer”). Indeed, in prior reports, Mr. Poret himself has criticized surveys that

asked the respondents to identify a particular producer, stating that “it would not be appropriate

10 See also E & J Gallo v. Proximo Spirits, Inc., 2012 WL 273076, at *15 (E.D. Cal. Jan. 30, 2012) (“based on the incontestable status,” trade dress “is a strong mark”).


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to assume respondents know the name of the company that makes [the plaintiff’s product] and

would name [that company] if they believed they were looking at [the product].” Suppl. Decl.,

Ex. 11 at 9 n.9 (emphasis added). Mr. Poret’s first question went to the relevant inquiry of

whether the respondents identified the Navy Chair® design with a single though anonymous

source, and in response to that question, 94 respondents (31% of total respondents), answered

“yes.” Dkt. 26-21, Cell AZ (Q210). “Various courts have held that such a percentage of

recognition (approximately 30% or more) is probative of secondary meaning.” Shuffle Master

Inc. v. Awada, 2006 WL 2547091, at 3 n.1 (D. Nev. Aug. 31, 2006) (collecting cases).

2. Actual Confusion Exists

Where, as here, “counterfeit furniture is identical to, or substantially indistinguishable

from” a plaintiff’s, “actual confusion” is “presumed.” Herman Miller Inc. v. Alphaville Design

Inc., 2009 WL 3429739, at *7 (N.D. Cal. Oct. 22, 2009). As shown in Emeco’s Motion,

consumers already have demonstrated confusion between the products. Mot. at 9-10.

RH attempts to sidestep this reality through the Poret Survey. But as noted, the survey, at

best, goes to “a finding of secondary meaning,” as RH concedes, Opp. at 15, not likelihood of

confusion. As the Federal Circuit held in rejecting this very type of survey for purposes of

establishing confusion in a trade dress action regarding the design of two hand lotion containers,

[t]hat survey was a ‘secondary meaning’ survey, designed to test whether the overall shape and coloring of the Conopco container had acquired meaning as a source-indicator. The survey did not purport to address the question of whether consumers could successfully distinguish that container from the Venture container, and thus has no relevance to the actual confusion or likelihood of confusion issues.

Conopco, Inc. v. May Dep. Stores Co., 46 F.3d 1556, 1564 n.9 (Fed. Cir. 1994) (emphasis added).

In fact, Mr. Poret himself has criticized surveys that fail to have respondents compare the

plaintiff’s and defendant’s products, as would be the case under actual marketplace conditions:

Respondents did not have the opportunity to see both [the] products and to consider their similarities (or differences) as they would if encountering both in the marketplace. Accordingly, Klein’s [competing expert] survey failed to account for confusion under such actual marketplace circumstances. My survey, on the other hand, tested a scenario in which respondents encounter both products, and found that confusion was likely to occur under the marketplace conditions that Klein declined to simulate.

Suppl. Decl., Ex. 11 at 8.11 Under actual marketplace conditions here, consumers would compare

11 See also WE Media Inc. v. Gen. Elec. Co., 218 F. Supp. 2d 463, 474 (S.D.N.Y. 2002)


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the chairs directly, e.g., on the Internet. Because it is obvious that a comparison of the products

here would have yielded substantial evidence of confusion, Mr. Poret chose not to do in this case

what he has properly done in prior surveys and has expressly criticized others for failing to do.

But moreover, the Poret Survey, if anything, demonstrates that RH already has caused

substantial confusion by flooding the market with millions of catalogs featuring its products and

through its widely-visited website. In response to the second question of the survey—“With what

company or brand of chair do you associate the overall look of this chair?”—38 respondents

identified RH, more than any other source, and several did so on the basis of what they had

already seen in its catalogs and on its website. Dkt. 26-21, Cell BA (Q210); Cell BB (Q220)

(e.g., “have seen this in a catalog”; “seen it or something very similar on their website”; “Have

seen in their catalogue”; “seen it in email”; “have seen it in their catalog”). See, e.g., Australian

Gold, Inc. v. Hatfield, 436 F.3d 1228, 1238 (10th Cir. 2006) (actionable confusion where

consumers believe “defendant is the source of the plaintiff’s products or services”).

3. Remaining Key Sleekcraft Factors Favor Emeco

The remaining Sleekcraft factors all strongly militate in favor of Emeco:

• Trade Channels: Contrary to RH’s argument, this factor does “not limit channels of trade to identical stores . . . . Rather a channel of trade includes the same type of distribution channel,” which exists here. Century 21 Real Estate Corp. v. Century Life of Am., 970 F.2d 874, 877 (Fed. Cir. 1992); see Aurora World, Inc. v. Ty Inc., 719 F. Supp. 2d 1115 (C.D. Cal. 2009). Further, both parties sell products through the Internet, an overlapping channel. Brookfield, 174 F.3d at 1057.

• Due Care: Where, as here, “the products are identical and the marks are identical, the

sophistication of buyers cannot be relied on to prevent confusion.” Banff, Ltd. v. Federated Dep’t Stores, Inc., 841 F.2d 486, 492 (2d Cir. 1988). Indeed, “confusion may often be likely even in the case of expensive goods sold to discerning customers.” Brookfield, 174 F.3d at 1060. Moreover, RH ignores “post-purchase confusion,” i.e., someone other than the purchaser who “sees the item after it has been purchased.” Au-Tomotive Gold, Inc. v. Volkswagen of Am., Inc., 457 F.3d 1062, 1077-78 (9th Cir. 2006). The products’ price points will do nothing to preclude such confusion.12

• Intent: Emeco is not relying on “ad hominem” attacks to establish intent (Opp. at 20),

(“[g]ermane survey evidence should make some effort to compare the impressions the marks have on potential customers”); Malletier v. Dooney & Bourke, Inc., 525 F. Supp. 2d 558, 574 & n.120 (S.D.N.Y. 2007) (excluding survey for failing to employ a “sequential presentation or ‘line-up’” of products “which better approximates marketplace conditions”). 12 Further, RH ignores that the 111 Navy Chair®, which is sold in black and white versions identical to the Naval Chair products, sells for $260 (Dkt. 10-6, Ex. 1), and there is thus less than a $100 price differential between the 111 Navy Chair® and the Naval Chair products.


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but settled law. Where “counterfeit furniture is identical to, or substantially indistinguishable from” the plaintiff’s, that “is sufficient to show that [the defendant] intentionally copied plaintiff’s marks.” Herman Miller, 2009 WL 3429739, at *7. Further, RH’s willful intent may be inferred from the fact it has been sued in similar actions in the past and has made a practice of copying others’ designs, none of which RH denies. Mot. at 10, 21.

• Marks’ Similarity: RH does not argue that the designs of the products are dissimilar

because, of course, they are identical. Further, the “‘similarity of the marks’ test—especially when the comparison is between marks on identical product types . . . —does not require an identity of marks.” Malletier v. Burlington Coat Factory Warehouse, 426 F.3d 532, 538 n.3 (2d Cir. 2005). And as RH concedes, it is called the “Naval Chair collection.” Opp. at 18 (emphasis added). By changing Navy Chair® to Naval Chair, RH has merely turned a noun (“Navy”) of a two-word mark into its adjectival form (“Naval”). The term “Introducing” is a small-print, stock promotional clause. And the inconsistent use of the phrases “1940s” and “1940s Aluminum” as a preface is, at best, a trivial modification to the mark. See Guerra, 293 F.3d at 1288. Groupion, LLC v. Groupon, Inc., 859 F. Supp. 2d 1067, 1076 (N.D. Cal. 2012) (Opp. at 19) is inapposite. Unlike here, the products there were not closely related.13

III. EMECO HAS DEMONSTRATED IRREPARABLE HARM

RH’s irreparable harm arguments ignore significant record evidence and settled law.

First, Emeco has provided substantial evidence that RH’s conduct has caused and

threatens to cause lost sales, price erosion, loss market share, and damage to goodwill (Opp. at

22). Diamontiney v. Borg, 918 F.2d 793, 795 (9th Cir. 1990) (injury need not be “inflicted” as

“strong threat of irreparable injury . . . adequate”). As the unrebutted record demonstrates: • Emeco spends substantial sums advertising the Navy Chair®, attributing its source to

Emeco. Dkt. 10-1 ¶ 8. See SunEarth, Inc. v. Sun Earth Solar Power Co., 846 F. Supp. 2d 1063, 1083 (N.D. Cal. 2012) (irreparable harm where plaintiffs invested significantly in “building up a strong reputation over the course of several decades”).

13 RH raises a conclusory fair use defense solely as to its use of Emeco’s trademarks, not trade dress, rendering it largely irrelevant to the proposed injunction. In any event, the defense fails. First, courts repeatedly reject fair use defenses when the defendant uses the mark as part of its product name, which is clearly the case here. See Lewis Mgmt. Co. v. Corel Corp., 1995 WL 724835, at *6 n.6 (S.D. Cal. June 28, 1995) (“use as the name of a product, as opposed to use to describe the product, is not descriptive use entitled to the fair use exemption”); Byrnes & Kiefer Co. v. Flavoripe Co., 1986 WL 15550, at *6 (W.D. Pa. Aug. 20, 1986) (same). RH’s contention that it is using “Naval Chair” as part of a longer phrase clearly distorts the context in which the terms appear. Fortune Dynamic, Inc. v. Victoria’s Secret Stores Brand Mgmt., Inc., 618 F.3d 1025, 1040 (9th Cir. 2010) (non-fair use when mark used “as a ‘symbol to attract public attention’”). Moreover, as discussed, RH plainly has not used the mark “fairly and in good faith.” Cairns v. Franklin Mint Co., 292 F.3d 1139, 1151 (9th Cir. 2002).


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• The Naval Chair collection replicates the design and name of the Navy Chair®, causing

a strong likelihood of consumer confusion. Dkt. 10-1 ¶ 28. See Marks Org., Inc. v. Joles, 784 F. Supp. 2d 322, 334 (S.D.N.Y. 2011) (“particularly strong likelihood of confusion should weigh in favor of finding irreparable injury”).

• Emeco has no control over the quality of products made by RH’s Chinese source. See

Zino Davidoff SA v. CVS Corp., 571 F.3d 238, 243 (2d Cir. 2009) (interference with “holder’s legitimate steps to control quality” risks “injury to the reputation of” mark).

• The Naval Chair’s $129 price point is more than $300 less than an authentic Navy

Chair®, cheapening the brand and devaluing the genuine Navy Chair® to millions of Emeco’s prospective and existing customers who saw advertisements in RH’s catalogs and on its website or who see the Naval Chair in public spaces. Dkt. 10-1 ¶¶ 29-30; Dkt. 10-6 ¶¶ 2-3, Exs. 1-2; Uni. Furniture Int’l, Inc. v. Collezione Europa USA, Inc., 2005 WL 2427898, at *3 (M.D.N.C. 2005) (where infringer “can charge significantly lower prices for its furniture,” this damages reputation and goodwill).

Given this abundant evidence, RH’s reliance on Leatherman Tool Group, Inc. v. Coast

Cutlery Co., 823 F. Supp. 2d 1150, 1158-59 (D. Or. 2011), in which the court rejected statements

by an executive’s conclusory “vouch[ing] for [plaintiff’s] harm” is clearly misplaced.14

While RH’s lawyers casually tell the Court that it will cease sales pending this litigation,

Emeco remains entitled to an injunction under controlling Ninth Circuit precedent holding that

the voluntary cessation of infringing activities is not a ground for denial of a preliminary

injunction. See, e.g., Levi Strauss & Co. v. Shilon, 121 F.3d 1309, 1314 (9th Cir. 1997); Polo

Fashions, Inc. v. Dick Bruhn, Inc., 793 F.2d 1132, 1135-36 (9th Cir. 1986). The reason is simple:

“[i]f the defendants sincerely intend not to infringe, the injunction harms them little; if they do, it

gives [the plaintiff] substantial protection.” Polo Fashions, 793 F.2d at 1135-36. And indeed, it

“is entirely too easy for an adjudicated infringer to claim a reformation once the specter” of an

“injunction looms near,” which is of particular concern given RH’s past infringing conduct and

clear intent to infringe here. Metro-Goldwyn-Mayer Studios, Inc. v. Grokster, Ltd., 518 F. Supp.

2d 1197, 1221 (C.D. Cal. 2007). Further, even if RH “has ceased production,” it has not shown

“that it would be unable to resume production in the future.” Rebel Debutante LLC v. Forsythe

Cosmetic Grp., Ltd., 799 F. Supp. 2d 558, 568 (M.D.N.C. 2011). RH’s measures to secure its

inventory do not refute that it has full custody of the infringing products and at any time could

14 Furthermore, Leatherman was not even a trademark case; it involved a noncomparative false advertising claim. By contrast, “damages occasioned by trademark infringement are by their very nature irreparable.” Int’l Kennel Club. v. Mighty Star, Inc., 846 F.2d 1079, 1092 (7th Cir. 1988).


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return them to market. Further, its assurances do not render “injunctive relief moot” given that it

vigorously “continues to assert a right to engage in the complained-of conduct.” Aztar Corp. v.

NY Entm’t, LLC, 15 F. Supp. 2d 252, 256 n.4 (E.D.N.Y. 1998).15

And at any rate, Emeco requests not only an injunction on sales, but also corrective notice

to the millions of catalog recipients and website visitors who viewed the infringing Naval Chair

(Dkt. 10-43 at ¶ 4).16 Absent this relief, the irreparable injury to Emeco persists, as demonstrated

by the several respondents to the Poret Survey who affiliated the Navy Chair® design with RH

based on their viewing of its catalog and website. LGS Architects, Inc. v. Concordia Homes of

Nev., 434 F.3d 1150, 1154 (9th Cir. 2006) (cessation of sales “would not moot” plaintiff’s

“request for a mandatory injunction”); Cartier, Inc. v. Four Star Jewelry Creations, Inc., 2003

WL 21056809, at *5-7 (S.D.N.Y. May 8, 2003) (cessation does not moot injunction request

where plaintiff sought notice to “each recipient” of catalog of infringing items).

IV. THE BALANCE OF HARDSHIPS TIPS SHARPLY IN EMECO’S FAVOR

Conceding that it would not suffer any hardship from an injunction on future sales, RH

only takes issue with Emeco’s request for corrective notice. Its argument thus would only affect

the nature and scope of the notice. In any case, RH fails to cite any evidence demonstrating

hardship, and its bald assertions of financial cost and loss of goodwill do not outweigh the

unrebutted evidence of substantial hardship to Emeco caused by the confusion wrought by the

millions of distributed catalogs and website displays featuring its infringing products.

V. THE PUBLIC INTEREST FAVORS AN INJUNCTION

As RH concedes, “courts often define the public interest at stake as the right of the public

not to be deceived or confused.” Opp. at 25. While RH makes a short plea for competition, this

contention must fail given that confusion in the marketplace is highly likely.

VI. CONCLUSION

Emeco respectfully requests that the Court enter the proposed injunction.

15 Lorillard Tobaco Co. v. S&M Brands, Inc., 616 F. Supp. 2d 581, 586 (E.D. Va. 2009) (irreparable harm where party “still challenges” infringement); Rebel, 799 F. Supp. 2d at 568. 16 See Abbott Labs. v. Mead Johnson & Co., 971 F.2d 6, 19 (7th Cir. 1992) (corrective notice “at the heart of the Lanham Act”); Linotype Co. v. Varityper, Inc., 1989 WL 94338, at *3 (S.D.N.Y. Aug. 4, 1989) (notice in preliminary injunction “to counteract” “false impression” by ad).


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DATED: November 30, 2012

MUNGER, TOLLES & OLSON LLP

By: /s/ John W. Spiegel JOHN W. SPIEGEL

Attorneys for Plaintiff Emeco Industries, Inc.


EXHIBIT 2


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SUPPL. BLAVIN DECL. ISO PL’S MOT. FOR PRELIM. INJUNC. CASE NO. CV 12-05072 MMC

JOHN W. SPIEGEL (SBN: 78935) [email protected] MUNGER, TOLLES & OLSON LLP 355 South Grand Avenue, Thirty-Fifth Floor Los Angeles, CA 90071-1560 Telephone: (213) 683-9100 Facsimile: (213) 687-3702 JONATHAN H. BLAVIN (SBN: 230269) [email protected] MUNGER, TOLLES & OLSON LLP 560 Mission Street, 27th Floor San Francisco, CA 94105 Telephone: (415) 512-4000 Facsimile: (415) 512-4077

Attorneys for Plaintiff EMECO INDUSTRIES, INC.



EMECO INDUSTRIES, INC.

Plaintiff,

v.

RESTORATION HARDWARE, INC., GARY FRIEDMAN, and DOES 1-10.

Defendants.


SUPPLEMENTAL DECLARATION OF JONATHAN H. BLAVIN IN SUPPORT OF PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION

Date: December 14, 2012 Time: 9:00 a.m. Courtroom: 7 - 19th Floor Judge: Honorable Maxine M. Chesney

PUBLIC REDACTED VERSION


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-1- SUPPL. BLAVIN DECL. ISO PL’S

MOT. FOR PRELIM. INJUNC. CASE NO. CV 12-05072 MMC

I, Jonathan H. Blavin, hereby declare:

1. I am an attorney with the law firm Munger, Tolles & Olson LLP, counsel

of record for Emeco Industries, Inc. (“Emeco”) in the above-entitled action. I am licensed in the

State of California and admitted to practice before this Court. I make this declaration based on my

personal knowledge, and, if called upon as a witness, I could and would testify competently as to

the matters set forth below.

2. Attached hereto as Exhibit 1 is a true and correct copy of a printout from

the website lowpricewithbest.us selling a “LexMod Sailor Modern Cafe Side Chair,” which it

describes as an “emeco navy chair,” located at lowpricewithbest.us/buy -lexmod-sailor-modern-caf

e-side-chair-brushed-aluminum-best-prices-with-emeco-nav y -chair/ 1.


the website MattBlatt.COM featuring a “Matt Blatt Replica Emeco US Navy Chair,” located at

www.mattblatt.com.au/Replica-Dining-Chairs/Replica-Emeco-US-Nav y -Chair-Aluminium-

.aspx?p1487c13.


eBay.com featuring “Modern Aluminum Navy Café Chairs Emeco Repro,” located at

http://www.ebay.com/itm/BROWN-MODERN-PLASMA-LCD-LED-HD-TV-STAND-MEDIA-

CREDENZA-DRAWERS-GLASS-COMPARTMENT-/230871361015?_trksid=p2047675.–

m1985&_trkparms=aid%3D444000%26algo%3DSOI.CURRENT%26ao%3D1%26asc%3D13%2

6meid%3D3676989860440018526%26pid%3D100012%26prg%3D1014%26rk%3D4%26sd%3D

281003829395%26.

5. Attached hereto as Exhibit 4 is a true and correct copy of an article from

The Trademark Blog regarding Emeco’s Navy Chair® dispute with Target, located at

http://www.schwimmerlegal.com/2005/06/emeco-navy-chair-dispute.html.

6. Attached hereto as Exhibit 5 is a true and correct copy of a June 2, 2005

article entitled “Look-Alikes Draw Lawyers’ Stares” from the New York Times regarding Emeco’s

Navy Chair® dispute with Target, located at http://www.nytimes.com/2005/06/02/garden/02–

knock.html?_r=0.


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-2-


7. Attached hereto as Exhibit 6 is a true and correct copy of a July 9, 2005

article entitled “Not Exactly a Stand-Up Move” from the Washington Post regarding Emeco’s

Navy Chair® dispute with Target, located at http://www.washingtonpost.com/wp-

dyn/content/article/2005/07/08/AR2005070801970_pf .html.


the website Bistro Direct featuring an alternative aluminum chair design, located at

www.bistrodirect.co.uk/stackable-aluminium-chair-p-190.html.


the website Mity-Lite featuring an alternative aluminum chair design, located at

www.mitylite.com/stacking-chairs/chiavari/.


the Museum of Modern Art’s website featuring an alternative aluminum chair design, located at

http://www.moma.org/collection/object.php?object_id=4294.


the website Global Industrial featuring an alternative aluminum chair, located at

www.globalindustrial.com/g/office/outdoor-furniture/chairs-outdoor/aero-outdoor-aluminum-

chairs-standard-bar-height.

12. Attached hereto as Exhibit 11 is a true and correct copy of the “Expert

Rebuttal Report of Hal Poret Regarding Klein Survey and Reports,” submitted in CytoSport Inc. v.

Vital Pharmaceutical, Inc., No. 2:08-cv-02632-JAM-GGH (Dkt. No. 195-13) (E.D. Cal. July 11,

2012).

13. Attached hereto as Exhibit 12 is a true and correct copy of documents

produced in this matter by Defendants bearing the Bates stamp RESTO 1 to RESTO39.



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-3-


produced in this matter by Defendants bearing the Bates stamp RESTO 342 to RESTO 347.

Attached hereto as Exhibit 14 is a certified translation of Exhibit 13. Attached hereto as Exhibit 15

is a certification that the translations are verified to be an accurate and complete rendering of the

contents of the original document.


produced in this matter by Defendants bearing the Bates stamp RESTO 160 to RESTO 177 and

RESTO 179 to RESTO 185. Attached hereto as Exhibit 17 is a certified translation of Exhibit 16,

as demonstrated by the certification of translation in Exhibit 15.



Attached hereto as Exhibit 19 is a certified translation of Exhibit 18, as demonstrated by the

certification of translation in Exhibit 15.



Attached hereto as Exhibit 21 is a certified translation of Exhibit 20, as demonstrated by the

certification of translation in Exhibit 15.

I declare under penalty of perjury under the laws of the United States of

America and the State of California that the foregoing is true and correct.

Executed on November 30, 2012 at San Francisco, California.

/s/ Jonathan H. Blavin Jonathan H. Blavin


EXHIBIT 1


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The Matt Blatt Replica Emeco US Navy Chair - Aluminium

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Code: Navy Chair

This is a Matt Blatt replica of the original design.

Originally designed by Emeco for the US Navy in 1944, this chair has come to represent classic design and retro chic. Timeless, practical and stylish,this authentic replica will continue to delight for years to come.

Crafted entirely from aluminium, the clean, classic lines of this chair make it perfect for multiple uses. Whether as a dining chair in the home orcommercial space, an office chair or simply a stylish side chair, the Matt Blatt Replica US Navy Aluminium Chair will not disappoint.

Available in either red, white, black or silver, this metal chair can be adapted to any interior, and is as elegant as it is versatile.

The rest of the Replica Emeco range is available here.

Our price:$129

Colour

Silver

Quantity

1

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Available for immediate delivery to your home / office.

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Specifications

Delivery infoPick up locationsReturnsCustomer reviews

Dimensions39cm W x 86cm H x 35cm D

Seat height 46cm.

MaterialsAluminium.

General comments

Suitable for commercial use.

Height: 86.00

Width: 39.00Depth: Weight: 30.00

Weight:









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Sex:0

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EXHIBIT 3


11/23/12 2 MODERN ALUMINUM NAVY CAFE CHAIRS EMECO REPRO INSIDE/OUTSIDE RESTAURANT QUALITY | eBay

1/8ebay.com/itm/2-MODERN-ALUMINUM-NAVY-CAFE-CHAIRS-EMECO-REPRO-INSIDE-OUTSIDE-RESTAURANT-QUALITY-/281003829395?p…

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2 MODERN ALUMINUM NAVY CAFE CHAIRS EMECO REPRO INSIDE/OUTSIDE RESTAURANT QUALITY

Item condition: New

Ended: Nov 18, 2012 13:13:06 PST

Price: [ 6 sold ]

Item location: United States

Seller: everythinghome (2724 ) | Seller's other items

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281003829395Item number:

Description

Seller assumes all responsibility for this listing.

Item specifics

Condition: New: A brand-new, unused, unopened, undamaged item in its original packaging (wherepackaging is ... Read more

Room: Cafe

Style: Modern Contemporary Type: Dining ChairsUpholsteryFabric:

Aluminum Material: Aluminum

MainColor:

ALUMINUM Color: Aluminum

ProductType:

CHAIR

2 MODERN ALUMINUM NAVY CAFE CHAIRS EMECO REPRO INSIDE/OUTSIDE RESTAURANT QUALITY

SquareTrade © AP6.0

AS AN EBAY SELLER FOR OVER A DECADE, WE'VE EARNED YOUR TRUST.

IMPORTANT - PLEASE READ ENTIRE DESCRIPTIONIs using PayPal too much hassle? No problem. Complete the auction and pay over the phone using any major credit card! Best time to reach us at

888-731-3130 is M-F 10AM-5PM central time. If we can't answer, leave a message. We'll call back as soon as we can.

EVERYTHING YOU NEED AT EVERYTHINGHOME...BEST PRODUCTS...BEST SERVICE...GREAT PRICE. PURCHASE ITEMS WHERE THE SELLER HAS A PROVEN TRACKRECORD. PLEASE CHECK OUR FEEDBACK. THIS EBAY SELLER, EVERYTHINGHOME, HAS OVER 25 YEARS BUSINESS EXPERIENCE, OVER 10 YEARS EBAY

EXPERIENCE AND 100% POSITIVE CUSTOMER FEEDBACK. WE'RE NOT SAYING WE'RE PERFECT BUT WE SURE TRY HARD TO MAKE YOU HAPPY!

BRAND NEW FROM OUR WAREHOUSE TO YOU!YOU ARE GETTING TWO MODERN ALUMINUM RESTAURANT QUALITY CAFE/BAR CHAIRS INTHIS POSTING WHICH IS AN EMECO REPRODUCTION. WE ARE IN NO WAY AFFILIATED WITH

EMECO.


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(This posting is priced for 2 chairs with FREE shipping!)There is no reason to restrict contemporary furniture to the indoors - enjoy it al fresco on your deck, patio, or restaurant

with the Cafe Chair.




(This posting is priced for 2 chairs with FREE shipping!)Made of lightweight, versatile brushed aluminum, these chairs can be easily moved and will stand up to the elements of

the outdoors.

(This posting is priced for 2 chairs with FREE shipping!)

The simple design lends itself well to just about any type of setting. Plastic non-marking feet finish off the legs andprovide additional stabilization. The Cafe chair is fully assembled.




(This posting is priced for 2 chairs with FREE shipping!)All of our furniture must pass strict quality controls to ensure durability that will last.

Features:- Hollow brushed aluminum

- These chairs can be used outdoors, as well- Lightweight, yet sturdy construction

- Arrives fully assembled- Plastic-non marking feet to protect your floors from scratches

Dimensions:

Overall: 15.75"W x 18.5"D x 33"HSeat: 15.5"W x 14.75"D x 18"H

***IMPORTANT INVENTORY NOTICE***UNLESS STATED OTHERWISE AT THE VERY BEGINNING OF THIS DESCRIPTION, AT THE TIME OF THIS

POSTING, THIS ITEM WAS IN STOCK AND READY TO SHIP OUT TO PAID CUSTOMERS ABOUT 3 BUSINESSDAYS FROM RECEIPT OF PAYMENT. HOWEVER, EBAY IS NOT OUR ONLY SALES VENUE. EVERY DAY WE SELL

TO INTERIOR DESIGNERS, FURNITURE STORES, RESTAURANTS, BARS, CAFES, BISTROS AND HOTELS ALL


TO INTERIOR DESIGNERS, FURNITURE STORES, RESTAURANTS, BARS, CAFES, BISTROS AND HOTELS ALLOVER THE COUNTRY AND A SINGLE PURCHASE ORDER CAN DEPLETE ABOUT 25 ITEMS ALL AT ONCE. IF BY

CHANCE THIS HAPPENS AT THE TIME YOU COMPLETE THIS AUCTION, WE WILL OF COURSE, ASK IF YOUWOULD LIKE A 100% REFUND OR IF YOU WOULD LIKE TO HOLD OUT FOR OUR NEXT ARRIVING BATCH OF

STOCK FOR WHICH WE WILL PROVIDE AN ETA. EITHER WAY, IF YOU MAY ALWAYS CALL US TOLL FREE AT888-731-3130 AT ANYTIME WHILE YOUR ORDER IS PENDING, OR BEFORE COMPLETING THIS AUCTION IF YOU

HAVE ANY QUESTIONS. THANK YOU.

Important Note About our Pricing: We understand it never hurts to ask for a lower price and we can appreciate that. We would be inclined to dothe same thing. Because we know the marketplace, we have taken much time and effort to ensure we already have our lowest possible, legitimate

and authorized price. Our pricing already reflects high volume. The good news is you only have to purchase one item to be priv ileged to pricing as ifyou were purchasing 15 items all at once. Because our business model relies on volume we only make a tiny amount off each piece sold but we sella lot of stuff. Plus, we are an established dealer of this product. This means in the unlikely event of a factory defect or any shipping damage, we will

do whatever it takes to make it right. Buy something like this from someone else and well, who knows. We look forward to the chance of earningyour business while prov iding the serv ice and support you deserve.

LOVE IT OR LEAVE ITWe at everythinghome strive only for positive eBay feedback and 5 stars in EVERY rating category. Your

happiness is our happiness. And, we work hard to protect our reputation. Anything less than 5 stars in eachcategory we consider a failure on our part. If you don't absolutely love your item, contact us within 3 days of

receipt. We'll do what it takes to make it right or refund all your dough less PayPal (if applicable), eBay, originalshipping, return shipping and 30% restocking fees. Product must be returned in " like-new" condition and in itsoriginal packaging with our return authorization number marked clearly on return label only - not package. No

returns after 15 days. Damaged items upon your inspection must be exchanged for new shipment.

IMPORTANT SHIPPING INFORMATIONDelivery, including packaging, handling and insurance anywhere to the 48 Continental U.S. States for each item(or pair of items or multiple items if posting references an offer of more than one item) is FREE! Alaska, Hawaii,VI and Puerto Rico, you may email for shipping quote, however this extra cost can be very expensive (like in themultiple hundreds of dollars). Sorry but shipping is not available to to APO or FPO or International Addresses.

Thank you.

WE MUST HAVE 2 THINGS BEFORE WE CAN SHIP:

1.) A VERIFIED & CONFIRMED PAYPAL ADDRESSES IF USING PAYPAL.2.) AN ACCURATE PHONE NUMBER FOR OUR SHIPPING AGENT.




2.) AN ACCURATE PHONE NUMBER FOR OUR SHIPPING AGENT.

ACCEPTANCE GUIDELINES

1.) INSPECT FOR VISIBLE BOX/PACKAGING DAMAGE.

2.) REJECT ONLY DAMAGED MERCHANDISE. ACCEPT ANY MERCHANDISE THAT ISNOT DAMAGED.

PAYMENT METHODS

WE ACCEPT E-CHECKS, BANK TRANSFERS AND CREDIT CARDS THROUGH PAYPAL. WE ALSO ACCEPT ANYMAJOR CREDIT CARD OVER-THE-PHONE AT 888-731-3130. MN RESIDENTS MUST ADD 7.275% AND ILLINOIS

RESIDENTS MUST ADD 7.75% SALES TAX. CONTACT IS REQUIRED 3 DAYS FROM COMPLETION OF AUCTIONAND PAYMENT MUST BE RECEIVED WITHIN 7 DAYS.

QUESTIONS???

CALL 10AM-5PMCENTRAL TIME.

888-731-3130

CLICK HERE TO VIEW ALL OUR AVAILABLE HOME, GARDEN, FURNITURE & ELECTRONIC ITEMS!

PRIVACY NOTICEWe do not sell or rent our customer information to any outside party under any circumstances.

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EXHIBIT 4


2Jun/05

Emeco Navy Chair Dispute

This is Emeco’s $370 Navy chair (more info here):

About Me

Contact Martin Schwimmer

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11/23/12 Emeco Navy Chair Dispute « The Trademark Blog

2/8www.schwimmerlegal.com/2005/06/emeco-navy-chair-dispute.html

This is Target’s ‘Cafe Aluminum Side Chair’, 2 for $249 (more info here):

Emeco’s registration number for the configuration of its chair is 2511360 (view in TARR here).

NY Times article ‘Look-Alikes Draw Lawyers Stares’ (reg req) reports on Emeco’s protest to Target. Thesource of Target’s chair, Euro Style, indicates that it will change the design of the chair.

UPDATE: Here is the Sandra Dining Set, 6 for $750 (hat tip Teresa):

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EXHIBIT 5


11/23/12 Look-Alikes Draw Lawyers' Stares - New York Times

1/4www.nytimes.com/2005/06/02/garden/02knock.html?_r=0

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NYT Since 1981

Look-Alikes Draw Lawyers' Stares

Low-priced knockoffs of the Barcelona chair, left, is hard to tell from the original, right.

By ERNEST BECKPublished: June 2, 2005

AT $249.99 for two, the Cafe aluminum side chairs on Target's Web site

are attractively priced. Stylish, sturdy-looking and made of lightweight

lacquered aluminum, the chairs are described by Target as a "classic

design."

But in the eyes of many design-conscious shoppers, the Cafe chair is

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something else: a dead ringer for a widely acknowledged classic, the Navy

Chair 1006, which has been made since the 1940's by Emeco, a company in Hanover, Pa., that

holds a trademark for the design.

And for those who are budget-conscious it is an appealing alternative to the Navy chair, with its

$370 suggested retail price. "I was thinking about getting the original Emeco Navy chairs from a

different store, but they are expensive!" a shopper wrote in a review on the Target site.

At a time when awareness of good design is spreading, industry insiders suggest that the number of

lower-priced imitations, or knockoffs, of classic designs is also on the rise. As a result

manufacturers are renewing efforts to curb the practice.

Gregg Buchbinder, the chief executive of Emeco, for example, has complained to Target through his

lawyers. And Knoll, the licensed manufacturer of Mies van der Rohe's Barcelona collection,

received trademark protection last year for the designs and is pursuing those who make replicas.

The blame for the increase in knockoffs, said Eleanor McKay, president of the Foundation for

Design Integrity, an industry watchdog group, rests on the "mass with class" movement, fueled by

shelter magazines and television decorator makeover shows, as well as on globalization. "People

today have better taste," said Ms. McKay, the chief executive of Niermann Weeks, a high-end

furniture company in Millersville, Md. "They're not content with buying schlock, and you can get

good items at Target," thanks in part to low-cost production in countries like China.

That rankles Mr. Buchbinder, who wonders how a company like Target, which commissions

original designs from the likes of Michael Graves and Isaac Mizrahi, has the nerve to sell a Navy

chair knockoff. "They are trying to confuse the public," he said.

In a letter to Mr. Buchbinder's lawyers, a lawyer for Target said the company is not responsible for

any possible trademark infringement because it did not develop or manufacture the Cafe chair.

Besides, the letter continued, the company that supplies the chair to Target, Euro Style of San

Rafael, Calif., gave assurance that the design did not infringe intellectual property rights. The

agreement indemnifies Target "with regard to any claim from any third party," the store's lawyer

wrote.

But the tale of the Cafe aluminum chair is more tangled. Trig Liljestrand, the president of Euro Style,

said he noticed the knockoff version, which was being made by a factory in China, at a trade fair in

Asia in 2000, and contracted with the factory to buy it. "I have many designs in my head," he said,

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"and when I saw it I thought, 'I've seen that or something like that before, and it looks good,' but I

didn't know the background."

He said he has since sold the chairs to many small and medium-size independent retailers. But this

week he said he had agreed to Mr. Buchbinder's demands that Euro Style change the design of the

chair. "We will cooperate, because it's better not to go into litigation," he said.

Such battles are commonplace in the furniture industry, as are tinkerings with size and alterations of

minor characteristics to circumvent trademark and patent restrictions. P. J. Casey, the chief

executive of Cite, a SoHo shop that sells knockoffs of designs including Frank Gehry cardboard

chairs and the Mies series, adjusted the dimensions of many pieces in her store after receiving a

"cease and desist" letter from Knoll last November.

Today Ms. Casey still sells a Barcelona-style chair - or, as she puts it, a "Mies inspired" one - with

a shorter, more arched back and a lower seat that is less slanted than the original but still closely

resembles what the designer created in 1929. The Cite version uses a cheaper Chinese leather that

is piped, in place of Knoll's supple, hand-welted and hand-stitched Spinneybeck leather. Cite's

resized knockoff is $1,000; the Knoll chair is $3,348.

Not every manufacturer responds to pressure as Ms. Casey did. Officials of Gordon International, a

New York company that has sold Barcelona collection designs for 20 years, said they received a

similar warning letter from Knoll but chose not to recognize the validity of Knoll's design

trademarks. "We challenge Knoll's legal claim to have an exclusive monopoly on an unpatented

design in the public domain for decades," said Samuel D. Littlepage, a lawyer at Dickinson Wright

in Washington who represents Gordon. Now, Knoll is suing Gordon International in federal district

court in Manhattan for trademark infringement.

Convincing a jury that one chair is a clone of another can be tricky, according to Mike Walsh, a

trademark litigator at Choate, Hall & Stewart, a Boston law firm. The legal argument, Mr. Walsh

said, is "not primarily about inches" but about the perception of ordinary consumers. And that "is a

very subjective standard."

Aside from the legal costs, the stakes in these knockoff struggles are high. Mr. Buchbinder sells

around 10,000 Navy chairs annually, a big part of Emeco's business. Target, meanwhile, "can sell

millions of them," he said. Moreover, he said he worries about a complaint that popped up on the

Target site - that weld spots on the cheaper Cafe aluminum chairs were sloppy - saying that it




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EXHIBIT 6


9/30/12 Not Exactly a Stand-Up Mov e

1/3www.washingtonpost.com/wp-dy n/content/article/2005/07/08/AR2005070801970_pf .html

Not Exactly a Stand-Up MoveKnockoff of Classic Chair Just Doesn't Sit Right

By Linda HalesWashington Post Staff WriterSaturday, July 9, 2005

Imitation may be the sincerest form of flattery, but what

Target has done to the venerable Navy chair shows

disrespect.

The Web store Target.com offers a "Cafe Aluminum side

chair" from Asia for $249.99 a pair. The online listing

describes the chair as a "classic design." That's true. The

image closely resembles a trademarked American classic:the Emeco 1006 Navy chair.

The 1006 is a bona fide wartime workhorse. It was developed in Hanover, Pa., in the 1940s for use on

submarines and aircraft carriers. Aluminum makes the chair lightweight and corrosion-resistant. An elaborate

manufacturing process makes it virtually indestructible. According to company lore, the 1006 is tough enough to

withstand a torpedo blast.

The military remains a customer, but today the 1006 is also a symbol of modern industrial chic. Navy chairs are

found in Armani and Tiffany boutiques, the architecture offices of Frank O. Gehry, in the movie "Mr. & Mrs.

Smith" and at home with Brad Pitt. The chair has starred in its own docudrama, "77 Steps," filmed by EamesDemetrios, grandson of designer Charles Eames. Television viewers can spot Navy chairs on "Law & Order"

and "CSI," as well as in Verizon and HBO ads. Design Within Reach sells them for $370 each on its Web site.

The American and Asian chairs have nearly identical slatted backs, curved seats and rounded shoulders. The

Navy chair has a durable brushed matte finish that is guaranteed for life. The import is painted and lacquered to

simulate the look.

The similarity generated correspondence between lawyers for Emeco and Target in May. The discounter pointed

the finger at the supplier, Euro Style of San Rafael, Calif., whose president, Trygve Liljestrand, said this week he

is hoping to avoid litigation by adding two slats to the back of his chair. He did not commission the look-alike but

was shown a prototype on a visit to the Far East. He says he had no idea the Emeco chair had legal protection.

Nor did he know of its role in World War II.

Target's response has been less satisfying. A champion of design might have whisked the knockoff from its

lineup. Target won a Smithsonian National Design Award for corporate excellence in 2003, but now thediscounter is behaving like a discounter: The knockoff is still online.

Why would a smart corporation like Target risk its hard-won reputation as a design store over a cheap imitation

chair? Target attorney Shayne L. Brown wrote to Emeco's attorney, saying that company policy is "to respect

the intellectual property rights of others." Five Target executives declined to comment for this column, including


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Brown.

The problem of knockoffs is not new or limited to Target. Nor is Euro Style the only source of Emeco look-

alikes, which are known in the business as counterfeit classics. The Foundation for Design Integrity has been

fighting them for a decade. Attorney Susan E. Farley, who represents the foundation and Emeco, was hoping to

settle this week with a company threatening to market imitations of another Emeco chair, the stylish Hudson,

designed in 2000 by Philippe Starck for the Hudson hotel in New York.

"They are both super-super-famous chairs," Farley says. "If they're made in China, how are you supposed to

compete with that? You don't have to be a Harvard business grad. That's a real threat to American jobs."

The Navy chair is pure Americana, which is why Target looks so bad. It comes from an era when Yankee

ingenuity, government research and a skilled labor force could work miracles, and small towns thrived on fullemployment. In Hanover, which is just up the road from Camp David, 60 skilled workers -- down from 600

during World War II -- produce 10,000 Navy chairs a year. The capacity is 30,000, according to Gregg

Buchbinder, who bought the factory in 1998. During the war, rail cars pulled right up to the door to load

government orders.

Emeco, which stands for Electric Machine and Equipment Co., was founded by tool-and-die maker Wilton C.

Dinges, who worked out the technology with the U.S. Navy and Alcoa. The designer's name is lost. The DesignEncyclopedia of the Museum of Modern Art notes that the chair took decades to perfect. During manufacture,the molecular structure of the metal is altered to make the material three times stronger than steel.

"We're risking everything," Buchbinder says. "For a little company, we put so much livelihood and development

into the tooling. If someone else is allowed to make it, it just kills us."

Like Target, Buchbinder has sought to raise the profile of his company by working with celebrity designers.Along with Starck's Hudson collection, Emeco makes a Superlight chair designed by Gehry. Buchbinder was

hard at work on a new chair by Norman Foster, the British architect, when he learned of the aluminum chair onTarget.com. He bought one and put it through a few tests before deciding to challenge it. He worried that legal

fees could prevent the launch of the Foster chair.

"I only have five collections," Buchbinder says. "Those jobs depend on making those chairs. My back is upagainst a wall. I don't have a choice. I have to fight for it."

Target's commitment to design began at the Washington Monument. The corporation organized sponsorship of

the famous Michael Graves blue wrap used during a lengthy renovation in 1998. Smart executives bought thenotion that design could differentiate Target from other big-box stores. Exclusive collections have been

commissioned from Graves, Starck, Isaac Mizrahi, Todd Oldham and others. Anonymous designers toil awayon staff. The corporation also has partnered with such brand-name companies as California Closets, Sony,

Eddie Bauer, Tupperware, Calphalon, Waverly and Woolrich to offer quality design at volume pricing.

Target.com includes comments from three shoppers who have purchased the Cafe Aluminum side chairs. Two ofthem complain about sloppy welds. One of them gives the chair four stars as a "great alternative to the Emco[sic] chair."

If Target's guests know the difference, surely those in the executive suite do, too.




Why not apologize, pull the imitation and maybe even work out a partnership to ensure that a great example of

American design not only survives but flourishes?

© 2005 The Washington Post Company

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EXHIBIT 7


11/25/12Stackable Aluminium Chair : Bistro Furniture, Cafe Furniture, Canteen Furniture, BistroDirect

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Designer Canteen Furniture | Aluminium Bistro Tables | Aluminium Bistro Chairs | Glass Bistro Tables | Glass Bistro Furniture |

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EXHIBIT 8


11/25/12 Chiavari Chair - Aluminum Chiavari Stacking Chair - Mity-Lite

1/3www.mitylite.com/stacking-chairs/chiavari/

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ALUMINUM CHIAVARI STACKING CHAIR

Mity-Lite's new Aluminum Chiavari stacking chair combines classic

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The 100% welded aluminum frame eliminates chair sway so common

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Benefits:

40% lighter & 2.5X more

durable* than leading

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Environmentally friendly –

100% recyclable

100% welded aluminumconstruction = greater

durability = reduced cost of

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Ships complete–no assembly

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Rust free–indoor or outdoor

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Features:

Durably constructed to hold1,000 lbs. (455kg)

7 welded leg support bars for

superior stability

UV treated paint prevents

fading & discoloration

Non-marring feet & stack

buttons–made from recycledplastic

Plush 2” cushion with

luxurious leather feel (optional)

Available in Gold, Silver, White,

& Mahogany

Five-year limited warranty

*Based on internal

BIFMA testing

Stacks up to 7 high for easy storage Optional seat cushions in

Ivory, White, and Black


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EXHIBIT 9


The Museum of Modern Art11 West 53 Street New York, NY 10019(212) 708-9400 | Contact Us | Hours

THE COLLECTION7,717 Artists and 44,891 Works Online

Search Results

Not on view

Landi Chair

Hans Coray (Swiss, 1906–1991)

1938. Bent and pressed aluminum, and rubber, 30 1/2 x 21 1/4 x 22 1/8" (77.5 x 54 x 56.2 cm). Manufactured by P. & W. Blattmann Metallwaren-Fabrik, Switzerland. Giftof Gabrielle and Michael Boyd

519.1998

If you are interested in reproducing images from The Museum of Modern Art web site, please visit the Image Permissions page (www.moma.org/permissions). Foradditional information about using content from MoMA.org, please visit About this Site (www.moma.org/site).

© Copyright 2009 The Museum of Modern Art

MoMA | The Collection | Hans Coray. Landi Chair. 1938 http://www.moma.org/collection/object.php?object_id=4294

1 of 1 11/30/2012 2:26 PM


EXHIBIT 10


11/28/12Outdoor Furniture & Equipment | Outdoor Chairs | Premier Hospitality Furniture - Aero Outdoor Aluminum Chairs - Standard /Bar Height - …

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Aero Outdoor Aluminum Chairs Outdoor Seating Uses.

Aero Outdoor Aluminum Chairs are made of Aluminum Frame Seating and commercialgrade construction for long lasting durability. Will not rust. Made to endure most weather

types. Chair heights are 31", 31-1/2", 41" and 41-1/2"H Available styles are Aero OutdoorAluminum Bar Height Chair With Arms, Aero Outdoor Aluminum Chair With Arms, AeroOutdoor Cast Aluminum Bar Height Chair With Arms and Aero Outdoor Cast Aluminum

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Aero Outdoor Aluminum Bar Height Chair With Arms 22 22 41 Aluminum WGB476661 $132.95

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Aero Outdoor Cast Aluminum Bar Height Chair With Arms 22 20-1/2 41-1/2 Cast Aluminum WGB476662 $146.95


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EXHIBIT 11


Case 2:08-cv-02632-JAM-GGH Document 195-13 Filed 07/11/12 Page 1 of 12Case3:12-cv-05072-MMC Document37-3 Filed11/30/12 Page62 of 93

Exhibit B

1

EXPERT REBUTTAL REPORT OF HAL PORET REGARDING

KLEIN SURVEY AND REPORTS

REPORT PREPARED FOR: Gibson, Dunn & Crutcher LLP 555 Mission Street, Suite 3000

San Francisco, CA 94105 Attorneys for CytoSport

PREPARED BY:

Hal Poret ORC International

625 Avenue of the Americas New York, NY 10011

February 17, 2012


2

BACKGROUND AND PURPOSE

In connection with CytoSport’s motion for a preliminary injunction, I previously

prepared and submitted an expert report concerning a survey measuring the

likelihood of confusion between CytoSport’s MUSCLE MILK protein drink and

Vital Pharmaceutical, Inc.’s (“VPX”) MUSCLE POWER protein drink and an

expert report responding to a Rebuttal Report of Robert Klein, which criticized

my survey. I resubmitted both reports in December 2011. I have recently been

provided with two additional reports from Robert Klein: (1) a Supplemental

Rebuttal Report containing additional comments on my survey; and (2) an

Expert Report concerning a new likelihood of confusion survey conducted by

Mr. Klein. This present Rebuttal Report contains my opinions regarding Klein’s

Supplemental Rebuttal Report and Klein’s confusion survey.


3

OPINIONS RELATING TO KLEIN CRITIQUE OF PORET SURVEY

In his original Rebuttal Report regarding my survey, Klein asserted that the

proper universe of consumers for products like Muscle Milk and Muscle Power

consists of 75% males and predominantly younger people (in the 18 to 34 age

range).1 Klein criticized my survey universe for including too many women and

respondents age 35 and older. In my Supplemental Report, I explained that the

confusion level in my survey would have been roughly the same (and well above

the threshold to support a finding that confusion is likely) even if the universe

had used the precise age and gender percentages Klein considers appropriate.2

To illustrate this, I re-weighted my survey data based on Klein’s demographics,

and found a net confusion level of 27.5%, similar to, and slightly higher than, my

original measurement of 25.4%. Accordingly, I observed that Klein’s criticism

regarding the age and gender breakdown of my survey universe was irrelevant –

even if his own demographics were used, the result would be equivalent.

Much of Klein’s Supplemental Rebuttal Report addresses my re-weighting of the

survey data. Klein argues that the result of re-weighting is not precisely accurate

because it relies on weighting the results among relatively small sub-groups,

each of which has a margin of error.3 This analysis misses the point and obscures

the clear meaning of the data from my survey. The only significant point is that

every age/gender group that Klein considers relevant exhibited a high net

confusion level in the survey:

1 Klein Rebuttal Report (00028696) pp. 5-6 2 Supplemental Poret Declaration pp. 2-4 3 Klein Supplemental Rebuttal Report (00028695) pp. 2-3


4

Age/Gender Net Confusion %

Males 18 – 34 22.4%

Males 35 – 49 40.6%

Females 18 - 34 27.1%

Females 35 – 49 15.2%

As this data makes apparent, confusion was high among males, females,

consumers between 18 and 34, consumers between 35 and 49, and each sub-

group. It is irrelevant that each sub-group’s confusion figure has a margin of

error and that a re-weighted figure will also have a margin of error. When

confusion is high among every demographic, it is clear that the overall confusion

level is high no matter how many males and females of each age group were

included in the survey.4

Even Klein’s own analysis demonstrates that any margin of error is too small to

call into question the reliability of the survey and its conclusions. Klein’s

calculations indicate that the net confusion level is in the range of 15.9% to

39.1%.5 A net confusion level anywhere in the range of 15.9% to 39.1% would

support the same conclusion I reached – that there is a likelihood of confusion.

Even the lowest end of this range (15.9%) is above the threshold typically used to

determine if confusion is likely.

Accordingly, it is my opinion that Klein’s supplemental analysis relating to age

and gender is irrelevant and merely seeks to obscure the fact that confusion was

high among all consumer segments. Likewise, Klein’s analysis of the margin of

error does not undermine the reliability of the survey, as the overall net

4 Klein’s additional criticism regarding the survey universe including consumers of the wrong type of “protein drink” is addressed below in connection with my opinions regarding Klein’s survey. 5 Klein Supplemental Rebuttal Report (00028695) p. 3


5

confusion level is high even after accounting for the margin of error he

calculates.

OPINIONS RELATING TO KLEIN CONFUSION SURVEY

I. The Survey Universe

Klein criticized my survey for screening for consumers of “protein drinks.”

Klein argued that “protein drink” is not clear enough and could be interpreted to

include drinks such as Atkins, Ensure, or Slim-Fast shakes. Accordingly, Klein

argued that the survey was overbroad in that it included consumers who do not

consume products in the Muscle Milk/Muscle Power category, but only these

other drinks.6

Remarkably, after insisting that “protein drink” is not sufficiently clear to limit

the universe to consumers of drinks like Muscle Milk and Muscle Power, Klein

conducted his own survey by screening for consumers of “high protein

nutritional shakes.”7 This term is equally subject to the criticism Klein levels

against “protein drink.” There is no evidence at all that a survey respondent

would interpret “protein drink” and “high protein nutritional shake” differently.

The substitution of “shake” for “drink” would not have distinguished between

the products at issue and Atkins-type products, which could be equally viewed

as shakes. Nor is there any reason to think that the use of “high protein” or

“nutritional” would clarify that the survey is limited to drinks like Muscle Power

and not drinks like Atkins or Ensure. These latter drinks are all marketed as

having high protein and being nutritional. If a consumer could believe an Atkins

shake or Ensure is a “protein drink,” they could also believe an Atkins shake or

6 Klein Rebuttal Report (00028696) p. 4 7 Klein Report re Survey (00028694) p. 3


6

Ensure is a “high protein nutritional shake.” Accordingly, if Klein is correct that

my survey universe contained some consumers of the wrong “protein drinks,”

then his survey universe is equally likely to contain consumers of the wrong

“high protein nutritional drinks.”

It is also important to note that overbroadness would be a far greater flaw for

Klein’s survey than it would be for mine. My survey was a Sequential Lineup

survey, meaning that all respondents were shown both the Muscle Milk and

Muscle Power products as part of the survey. Accordingly, even if they did not

previously have great familiarity with these products, asking respondents

whether the products are made by the same company was still a relevant test

that respondents could meaningfully participate in. They were able to view both

products and meaningfully consider them. On the other hand, as discussed

more fully below, Klein’s survey showed respondents only the Muscle Power

product. Accordingly, if respondents were not already aware of Muscle Milk,

the survey was predetermined to show no confusion, because a respondent who

has not heard of Muscle Milk obviously cannot mention Muscle Milk when

shown and asked about Muscle Power. Therefore, the inclusion of consumers of

the wrong protein drinks or shakes would completely invalidate Klein’s survey.


7

II. The Survey Format

A. Klein’s Use of an Eveready Survey

The survey I conducted was a Sequential Lineup survey, in which respondents

were first shown Muscle Milk and were then, one at a time, shown other protein

drinks, one of which was Muscle Power. When viewing Muscle Power,

respondents were asked whether it was made by the same company that made

the first product they were shown (Muscle Milk).

When first asked to consider and comment on my survey, Klein criticized the

survey for showing respondents the Muscle Milk and Muscle Power products

separately.8 Klein asserted that Muscle Milk and Muscle Power are commonly

found on the shelf together in stores and that consumers would have the

opportunity to see them together and compare them. Klein specifically described

how he believed the survey should have been conducted. He stated that the

survey should have shown respondents Muscle Milk and Muscle Power side-by-

side and permitted respondents to compare them, in order to mirror these

marketplace conditions. He asserted that less confusion would have been found

if respondents could have examined the products side-by-side.

However, when later asked to conduct his own survey, Klein chose not to design

a survey that showed respondents Muscle Milk and Muscle Power side-by-side,

as he previously stated they would be found in the marketplace. To the contrary,

Klein chose the survey format that is most unlike a side-by-side comparison – a

survey in which respondents are shown only the Muscle Power product.

Directly contradicting his original comments on my survey, Klein not only failed

to allow respondents to consider the Muscle Milk and Muscle Power products

8 Klein Rebuttal Report (00028696) p. 8


8

side-by-side, he did not allow them to consider the two products at all, as he did

not allow respondents to view Muscle Milk. Klein’s failure to test his earlier

claim that a side-by-side comparison would have shown less confusion evidently

reflects significant doubt about that proposition.

Because it never showed respondents the Muscle Milk product, Klein’s survey

did not simulate the marketplace conditions he emphasized in his previous

reports – that Muscle Milk and Muscle Power can be found side-by-side on store

shelves and can therefore be viewed in close proximity by consumers.

Respondents did not have the opportunity to see both the Muscle Milk and

Muscle Power products and to consider their similarities (or differences) as they

would if encountering both in the marketplace. Accordingly, Klein’s survey

failed to account for confusion under such actual marketplace circumstances.

My survey, on the other hand, tested a scenario in which respondents encounter

both products, and found that confusion was likely to occur under the

marketplace conditions that Klein declined to simulate.

B. Questions in Klein Survey

The Klein survey may also have understated confusion because it did not ask

about several forms of confusion recognized by the Lanham Act. The Lanham

Act covers not only confusion as to the direct source of goods, but also other

forms of confusion, such as confusion as to affiliation or approval. Accordingly,

it is standard in Eveready surveys to ask not only who makes the product or

what other products that company makes, but to also ask whether the company

that puts out the product is affiliated with or received approval from any other

company. The Klein survey omitted such questions. Accordingly, the survey

did not measure whether respondents who named VPX as the source of the

product (likely because they read it off the bottle after being asked the question)


9

believed that the product is affiliated with or approved by the maker of Muscle

Milk due to the similarities in name and trade dress.

III. Klein’s Classification of Results

The original “Eveready” survey involved plaintiff’s batteries and defendant’s

lamps. One of the reasons the survey functioned so well is that any respondent

who was confused about the source of the lamp could easily reveal their

confusion by mentioning ”batteries” when asked what other products are made

by the company that makes the lamp. Here, on the other hand, the parties’

products are the same type. Therefore, it can be difficult or impossible to tell if a

respondent is confused based on their answer to the question about what other

products are made by the company that makes the product shown (Muscle

Power.) If the respondent realizes that the product they are viewing is not

Muscle Milk but believes it is related to Muscle Milk, they could express

confusion by answering that the company that makes the product shown also

makes Muscle Milk. However, if the respondent mistakenly believes they are

looking at Muscle Milk (without realizing the name and trade dress are

somewhat different), they would not name Muscle Milk when asked what other

products are made by the company that makes the product they are shown.9

Mistakenly believing they recognize the product as Muscle Milk, they may

answer that the same company also makes other protein drinks or related

products, but such answers will not clarify whether or not the respondent is

confused. Accordingly, when products are of the same type and have similar

names, an Eveready survey may fail to reveal confusion unless proper questions 9 Respondents could reveal confusion by naming CytoSport, but the name “CytoSport” does not appear prominently on the Muscle Milk product, and it would not be appropriate to assume respondents know the name of the company that makes Muscle Milk and would name CytoSport if they believed they were looking at Muscle Milk. This is particularly so given that respondents could simply look at the bottle shown to them and read that it says VPX.


10

are asked to determine what respondents are thinking and a proper analysis of

their answers is performed.

Klein determined that roughly 4% of survey respondents in the Test Group

confused Muscle Power with Muscle Milk by counting as confused only

respondents who explicitly named Muscle Milk (or CytoSport.) However, there

were many respondents who did not mention Muscle Milk, but gave other

answers that are ambiguous as to whether the respondent is confused or not. For

instance, many respondents answered that the company that makes the product

shown to them (Muscle Power) also makes other protein shakes, protein

powders, and/or protein bars. The maker of Muscle Milk does make other

protein shakes, protein powders, and/or protein bars. These answers are,

therefore, ambiguous. One possibility is that the respondent is not confused and

is merely naming other related types of products. The other possibility,

however, is that the respondent mistakenly believes the product they are shown

is Muscle Milk and is naming other products that are made by the same

company that makes Muscle Milk.

As an example of such potential additional confusion, it is interesting to consider

answers mentioning protein “powder.” Muscle Milk is notable for also coming

in powder form, and a consumer who confuses Muscle Power for Muscle Milk

might mention powders when asked what else is made by the same company. In

the Klein Test Group, 18 respondents (8.1%) mentioned that the company that

makes the product shown also makes powders. Only 4 respondents (3.7%) did

so in the Control Group. This may indicate that some of the Test Group

respondents who mentioned protein powders were confusing Muscle Power

with Muscle Milk.


11

The Klein survey did nothing to clarify whether or not the many respondents

who gave ambiguous answers were confused. The Klein report simply treated

all such respondents as not confused when, in fact, it is possible that some of

them mistakenly believed they were looking at Muscle Milk and, therefore, did

not name Muscle Milk as an “other” product made by the same company. With

no analysis of these respondents’ answer patterns and no way in many cases to

determine what they were thinking, it is impossible to know the extent to which

the reported confusion level is understated.

Dated: February 17, 2012


EXHIBIT 12


FILED UNDER SEAL


EXHIBIT 13


FILED UNDER SEAL


EXHIBIT 14


FILED UNDER SEAL


EXHIBIT 15



DJ TRANSPERFECT CERTIFICATION OF TRANSLATION

I, Tabitha Ashura, hereby certify that the attached translations have been translated by a

qualified translator competent in both languages, and verified to be an accurate and

complete rendering of the content of the original document to the best of our ability. If a

translation below contains parallel English and Chinese text, the English has been verified

to be an accurate and complete rendering of the parallel Chinese text. The following

documents are included in this certification:

RESTOOOOO 160 REST00000162 REST00000163 REST00000164 REST00000166 REST00000167 REST00000168 REST00000169

REST00000176 REST00000177 REST00000178 REST00000179 REST00000180 REST00000181 REST00000183 REST00000336

REST00000170 REST00000337 REST00000171 REST00000338 REST00000172 REST00000345 REST00000173 REST00000347 REST0000017 4 REST00000361 RESTOOOO 175 REST00000362

/r~

Sworn to before me this November 29, 2012

Stamp, Notary Public

VINI SHI

NOTARY PUBUC -STA'TE OF NEW YORK No 0 SH62 53746

Qua l f ed n Ne ~Vo r l< County ,,, CommisJic n Expires Jan uary 03 , 2016

LANGUAGE AND TECHNOLOGY SOLUTIONS FOR GLOBAL BUSINESS

THREE PARK AVENUE, 39TH FLOOR, NEW YORK, NY 10016 l T 212.689.5555 l F 212.689.1059 l WWW.TRANSPERFECT.COM

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EXHIBIT 16


FILED UNDER SEAL


EXHIBIT 17


FILED UNDER SEAL


EXHIBIT 18


FILED UNDER SEAL


EXHIBIT 19


FILED UNDER SEAL


EXHIBIT 20


FILED UNDER SEAL


EXHIBIT 21


FILED UNDER SEAL


Documents

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