Designer Skin, LLC v. S & L Vitamins, Inc.

Defendants' Memorandum of Law in Support of Motion for Summary Judgment

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S & L Vitamins, Inc. made this motion for summary judgment on plaintiff Designer Skin?s claims in this action, and for declaratory judgment on defendants? counterclaims. S&L buys tanning lotion from retail tanning salons, in quantity ? hence, at a favorable price. S&L then sells that merchandise on the Internet, truthfully describing it to consumers using the brand names and photographs of the bottles. No law regulates or prohibits the purchase and sale of tanning lotion, on the Internet or elsewhere, regardless of quantity or where the seller purchased it. Nonetheless, S&L was forced to defend this lawsuit after Designer Skin filed its baseless trademark, copyright and business tort claims in this Court.

Trademark law protects consumers by preventing customer confusion. Its purpose is not protecting manufacturers? inflated price structures and distribution networks. Designer Skin?s claim that S&L has somehow misled consumers merely because S&L truthfully advertises on its website that it sells Designer Skin products was preposterous and supported by no evidence of actual or likelihood of confusion. Moreover, S&L?s activities are protected under the first sale and nominative fair use doctrines, which permit the sale and advertisement of a trademark-protected product, without regard to the trademark owner?s approval. Similarly, Designer Skin?s dilution claims for trademarks that are not famous, as required under the law, were baseless.

Designer Skin also claims that S&L interfered with the contracts between Designer Skin and its distributors. Yet there was no proof that S&L ever purchased merchandise from a distributor; that S&L was even aware of specific distribution agreements with specific distributors as required by the law; or that S&L owned, controlled or otherwise connived with affiliated retailers to induce distributors to sell to S&L.

The court granted most of the relief sought in this motion by order dated 5/20/08 (to be uploaded).

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Published In: Business Torts Updates, Intellectual Property Updates

Reference Info:Legal Memoranda: Motions for Summary Judgment/Adjudication | Federal, 9th Circuit, Arizona | United States

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Ronald Coleman, Goetz Fitzpatrick LLP | Attorney Advertising

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