Summary Judgment Awarded to CLL Clients in "Love Potion" Case
08/13/2008
Arlana Cohen and Eric Shimanoff successfully defended our client, Dessert Beauty, Inc., and its customer, Sephora, Inc., against a lawsuit in which an individual named Mara Fox claimed that her registered trademark LOVE POTION for perfumed essential oils was infringed by our clients’ use on DESSERT fragrances of phrases like “deliciously kissable love potion fragrance.”
The Court awarded our clients a summary judgment on the grounds that this was a statutory fair use of the term “love potion.” The Court concluded, among other things, that it is fair use for a term like “love potion” to be used in its descriptive sense, even though it does not actually describe the product. In this case, the product was not, in actuality, a love potion but these words described the purpose for which consumers would use the product. The Court also found that the defendants’ failure to conduct a preliminary search and their refusal to cease sales after receiving cease and desist letters were insufficient to establish bad faith as a matter of law.
Dessert Beauty, Inc. v. Mara Fox, 5 Civ. 3872 (DC) (S.D.N.Y. July 31, 2008).
