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Sillage LLC v. Kenrose Perfumes Inc.

United States District Court, C.D. California

June 9, 2015

SILLAGE LLC,
v.
KENROSE PERFUMES INC. ET AL

CIVIL MINUTES - GENERAL

CHRISTINA A. SNYDER, District Judge.

Proceedings: (In Chambers) DEFENDANT LA PEER BEAUTY L.P.'S MOTION TO SEVER AND STAY CASE (Dkt. No. 32, filed March 30, 2015)

DEFENDANT FRAGRANCENET.COM INC.'S MOTION TO SEVER AND STAY CASE (Dkt. No. 36, filed April 23, 2015)

I. INTRODUCTION

On December 23, 2014, plaintiff Sillage LLC filed this lawsuit against Kenrose Perfumes, Inc. D/B/A/Europerfumes ("Europerfumes"); FragranceNet.com, Inc. ("FragranceNet"); and La Peer Beauty, L.P. ("La Peer"). The gravamen of the complaint is that defendants have infringed plaintiff's intellectual property rights by marketing and selling knock-off versions of plaintiff's distinctive perfume bottles. Plaintiff alleges claims for (1) patent infringement, (2) federal trademark infringement, (3) federal trade dress infringement and (4) unfair competition in violation of California Business and Professions Code § 17200. Dkt. No. 1.

On March 30, 2015, La Peer filed a motion to sever and stay the claims against it pending resolution of the claims against Europerfumes. Dkt. No. 32. Plaintiff opposed that motion on April 20, 2015, Dkt. No. 35, and La Peer replied on May 4, 2015, Dkt. No. 37. On April 23, 2015, FragranceNet filed a motion to sever and stay the claims against it pending resolution of the claims against Europerfumes and Histoires de Parfums d/b/a Alice & Peter ("A&P"), at that time a defendant in the related action styled Sillage LLC v. Histoires de Parfums LLC, et al., No. 8:14-cv-00172-CAS-RNBx (C.D. Cal. filed Dec. 23, 2014).[1] Dkt. No. 36. Plaintiff filed an opposition on May 11, 2015, Dkt. No. 38, and FragranceNet replied on May 18, 2015, Dkt. No. 39. Because the motions seek similar relief for similar reasons, the Court analyzes them together, referring to La Peer and FragranceNet collectively as the "retail defendants."

On June 1, 2015, the Court held a hearing and distributed a tentative order granting the motions to sever but denying the motions to stay. At that hearing, counsel for Europerfumes and La Peer represented for the first time that the retail defendants would agree to be bound by the results of the litigation involving Europerfumes. In light of this new information, the Court grants the motions to sever and stay for the reasons that follow.

II. FACTUAL BACKGROUND

Plaintiff is in the business of creating and providing luxury artisanal fragrances, which it presents in distinctive stylized bottles. Compl. ¶ 1. Plaintiff alleges that it owns United States patents for bottle designs numbered D693, 224 and D658, 503. Id. ¶¶ 10-13 & Exs. A-D. Plaintiff also alleges ownership of a federal trademark (Registration Number 4, 429, 539) for the mark "Cherry Garden" in connection with perfumes and colognes, and trade dress rights in a series of cupcake-shaped perfume bottles featuring bottle caps adorned with jewelry, crystals, and other decorations. Id. ¶¶ 14-21 & Ex. E. Beginning in November 2011, plaintiff has marketed in the United States a series of perfumes, each presented in a "cupcake-inspired bottle" embodying the design claimed in the 224 patent, and incorporating the trade dress elements described above. Id. ¶¶ 22-32.

Plaintiff alleges that by March 2013, A&P and Europerfumes "introduced a line of perfumes which were, and continue to be, presented in a cheap knock-off version of Sillage's cupcake-inspired perfume bottles, " which plaintiff contends infringes its patent, trademark, and trade dress rights described above. Id. ¶¶ 33-34, 53-67. Plaintiff contends that Europerfumes is the North American distributor for the infringing perfume created by A&P. Id. ¶ 37. Plaintiff further alleges that Europerfumes sold a total of 306 units of the A&P perfume to FragranceNet between April and June 2014, and that FragranceNet continues to sell five variations of the infringing perfumes. Id. ¶¶ 39-42. Similarly, plaintiff alleges that Europerfumes sold a total of 729 units of the infringing perfume to La Peer between November 2013 and July 2014. Id. ¶¶ 43-46.

FragranceNet's CEO, Dennis M. Apfel ("Apfel"), declares that FragranceNet is an online purveyor of fragrance, skin care, hair care, aromatherapy, and scented candle products, which it buys wholesale and resells to customers. Dkt. No. 36-2 ¶¶ 1-2. According to Apfel, FragranceNet did not become aware of the instant dispute until receiving a copy of the complaint in this action in January 2015. Id. ¶ 3. Apfel acknowledges that FragranceNet purchased "a small quantity of A&P perfume from Europerfumes, " but avers that the company never purchased A&P perfume from any other party or altered the perfume after receiving it. Id. ¶ 6. Apfel declares that FragranceNet "did not design or develop the A&P perfume; does not import or manufacture the A&P perfume; has never purchased the A&P perfume from A&P; and does not have a distributor agreement with A&P in connection with the accused perfume." Id. ¶ 5. Apfel asserts that, before this litigation commenced, FragranceNet decided to discontinue selling the accused products. He further declares that FragranceNet has not sold the A&P perfume since December 6, 2014, and holds no A&P perfume in its inventory. Id. ¶ 7.

La Peer's General Manager, Alfred Hakim ("Hakim"), similarly declares that La Peer only purchased the accused perfumes from Europerfumes. Dkt. No. 32-2 ¶ 6. He asserts that La Peer does not import or manufacture the allegedly infringing products, and does not alter the functional attributes, technical specifications, or design elements of those products. Id. ¶ 8. Further, he declares that Europerfumes has agreed to defend and indemnify La Peer in this action with respect to its sale of the accused perfume products, and has promised to satisfy any judgment against La Peer in this action arising from the sale of such products. Id. ¶ 9.

At the hearing held on June 1, 2015, counsel for Europerfumes and La Peer represented that La Peer had agreed to be bound by the result of the litigation against Europerfumes, and that counsel anticipated that FragranceNet would enter into a similar agreement. In a telephonic status conference held on June 8, 2015, counsel indicated on ...


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