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Bieber’s Rhode wins first round of trademark lawsuit

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A federal court in New York has sided with model Hailey Bieber, refusing to issue a preliminary injunction that would have forced her newly launched skincare brand to stop using the Rhode name for the duration of a lawsuit in trademark matters filed against it by a fashion brand of the same name. The plaintiff argued that in addition to prohibiting the defendants from using the Rhode trade name or domain name and, therefore, flooding [Rhodes] presence in the market and confusing consumers, the injunction was necessary given that Bieber was planning to release a documentary about his brand called “The Making of Rhode”, which would further aggravate the risk of reverse confusion. The court disagreed with Rhode, with U.S. District of the Southern District of New York Judge Lorna G. Schofield saying in a brief order Friday that following the July 22 conference of the parties and after viewing the documentary, “Plaintiffs’ motion for a preliminary injunction is denied with prejudice.

Rhode first filed its lawsuit against Bieber and his companies RHODEDEODATO CORP. and HRBEAUTY, LLC d/b/a RHODE for trademark infringement and unfair competition under federal and New York state law in June, accusing the defendants of co-opting the name Rhode, which Rhode says it adopted first time eight years ago and has been using it regularly ever since. In his complaint, Rhodes claims she started selling luxury clothing under the Rhode name in 2014 and since then co-founders Purna Khatau and Phoebe Vickers and their brand have garnered attention from media outlets like Vogue; had their wares carried by retailers like Net-a-Porter, Neiman Marcus, Shopbop and Saks Fifth Avenue, among others; and garnered fans, such as Beyonc, Tracee Ellis Ross, and Lupita Nyongo, while building a business that is on track to generate sales of approximately $14.5 million for the year 2022 and $20 million in dollars in 2023.

All the while, New York-based Rhode said in the lawsuit she had racked up trademark rights and registrations for her name to be used on apparel and accessories, among other things, with plans to expand. into other goods/services categories in pursuit of its founders’ ambition to build a full-fledged lifestyle brand.

In this context, Rhode argued that on June 15, aspiring beauty entrepreneur Hailey Bieber launched a skincare brand of The same name. Although Rhode claims that it retains superior rights to the brand name and has achieved great success in the competitive and challenging fashion industry and has established a strong brand identity, it does not no doubt that Mrs. Bieber’s worldwide fame affords her a more substantial platform from which to [promote and] sell products. Specifically, Rhode claims that Biebers’ new trademark infringing mark will quickly overwhelm [its] presence in the market, confuse the market and ultimately destroy the goodwill and reputation of the RHODE brand.

In addition to potentially confusing consumers as to the source of Rhode-branded products, the potential for harm from the new Biebers brand is significant, according to Rhode’s lawsuit, which argues that such reverse confusion is likely to losing Rhode control over her goodwill and reputation, which she spent nearly a decade building, and over $1 million in brand advertising in 2021, in 2021 alone.

Reverse Confusion in Second Circuit District Courts

This isn’t the only confusion-centric reverse case to be filed in federal court in New York in recent times, the Rhode v. Rhode case was closely followed by the filing of a trademark lawsuit against Kim Kardashian, her company Kimsaprincess Inc. and Coty, Inc. In a complaint dated June 28, Brooklyn, New York-based Beauty Concepts, which does business as SKKN+, alleges that the mega-star and his collaborator in the manufacture of cosmetics are accused of trademark infringement and unfair competition, as well as civil lawsuits. conspiracy under New York common law, for launching the confusingly similar trademark SKKN by Kim, and using the trademark on goods and services identical to or closely related to the services offered by Beauty Concepts under [its own] SKKN+ brand.

And yet, after facing complaints from more than one company over its name change last year, Meta Platforms, Inc. has landed on the receptive side of a newly filed lawsuit in the Southern District of New York, with a small virtual reality-focused company accusing the social media giant formerly known as Facebook, Inc. of brazenly violating[ing] fundamental intellectual property rights enshrined in US law to wipe out a company that has been using the Meta name for more than a decade. In a lawsuit it filed in federal court in New York on July 19, experiential and immersive technology company Meta claims that in choosing to change its name to Meta last fall, Facebook, Inc. surprisingly ignored [its] federal registrations for the META trademark, and the company has since saturated[d] market with its infringing META mark, leaving Meta with little chance of survival.

Since Facebook, Inc.’s AR, VR, and XR offerings, its consumers, and its commerce channels are identical to those of Meta, albeit on a much larger scale, Meta argues that Facebook’s adoption of Meta, Inc. the mark is a classic case of reverse confusion.

Unlike traditional direct mix-up, which is the most common infringement scenario and in which the junior user is a small entity that misuses the established mark of a larger entity (the senior user) by misrepresenting its mark , reverse confusion results from a situation where consumers are likely to be confused by thinking that the goods/services of junior and senior users are made by or associated with the junior user. (In a reverse confusion scenario, the junior user is the largest and most established entity.) Due to its established market position and robust marketing efforts, the junior user is able to saturate the market with its goods/services, thus eclipsing the existence of the senior user.

To date, most reverse confusion cases have been litigated in district courts within the jurisdiction of the United States Court of Appeals for the Ninth Circuit, and through a range of Ninth Circuit opinions, plaintiffs have a relatively clear framework to litigate and establish a trademark infringement claim under a reverse confusion theory in this circuit. As part of its decision of July 2017 in Marketquest Group versus BICfor example, the Ninth Circuit exempted plaintiffs from having to specifically plead reverse confusion if it is consistent with the theory of infringement alleged in the complaint and supported a more malleable standard for proving intent in cases of confusion reverse, partner Fenwick Eric Ball wrote at the time. More recently, in its 2021 decision in Ironhawk Technologies, Inc. vs. Dropbox, Inc., the court after applying Selekcraft The factors declined to grant summary judgment for the defendant, a decision that Weintraub Tobin says James Kachmar is a reminder that the Selekcraft factors “may play a large and equal role in cases where a senior trademark holder brings a reverse confusing action against a more popular and commercially successful junior trademark holder”.

The growing number of reverse confusion-focused cases filed in New York’s federal district courts, including Rhode’s lawsuit, should provide guidance to plaintiffs and defendants alike if they seek to file or be compelled to defend similar cases. And as Metas lead attorney Dyan Finguerra-DuCharme said in that case, the facts provide the 2nd Circuit courts with an opportunity, for the first time this decade, to ensure that liability standards, injunctions and damages in cases of reverse confusion are proportionate. with the fundamental objective of the doctrine to protect the intellectual property rights of small businesses in a contemporary era of corporate consolidation and dominance.

A spokesperson for Rhode told TFL: “Friday’s court ruling is simply a judge’s decision not to bar skincare line Hailey Biebers from using our brand name during the trial, postponing decision until we have a chance to gather more evidence. It is extremely rare for a judge to issue the preliminary order that we requested, so we expected that result. We remain confident that we will win at trial. “Rhode” is our name and brand, we built it, and federal and state laws protect it. We’re asking Hailey to achieve her goals without using the brand name we’ve spent the past nine years building. Our team remains focused on continuing to grow our brand and thank you all again for your support.

The case is Rhode-NYC, LLC v. Rhodedeodato Corp. et al, 1:22-cv-05185 (SDNY).

Sources

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2/ https://www.thefashionlaw.com/hailey-biebers-rhode-wins-first-round-in-lawsuit-over-brand-name/

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