From: ""
Sent: Monday, November 07, 2005 12:24 PM
Subject: Re: false advertising by dm doos it all in violation of the lanham act

TEL: 212-244-0099 FAX: 212-244-0244

To: DM DOOS IT ALL 11-7-2005

Re: false advertising by dm doos it all in violation of the lanham act

Fabrique Innovations, Inc. ("Fabrique Innovations"), an official licensee of the National Collegiate Athletic Association ("NCAA") and the NCAA member schools. I have reviewed your correspondence with Jeff Ross concerning Dm doos it all practice of purchasing Fabrique Innovations merchandise at retail and reselling re-packaged Fabrique Innovations products in violation of Fabrique Innovations' license from the NCAA. I have also reviewed your e-Bay "store," through which you repeatedly make the false representation that the Fabrique Innovations goods on display are licensed by the NCAA, when, in fact, your products violate Fabrique Innovations' NCAA license. Your practices constitute false advertising in violation of Section 43(a) of the Lanham Act, 15 U.S.C. 1125(a).

Section 43(a) of the Lanham Act prohibits any:

false or misleading description of fact, or false or misleading representations of fact, which . . . in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of [the advertiser's] or another person's goods, services, or commercial activities. 15 U.S.C. 1125(a)(1)(B) (1999).

Pursuant to Section 43(a), an advertising claim is literally false claim if it is either explicitly stated in an advertisement or conveyed by the necessary implication of the advertising message. Clorox Co. Puerto Rico v. Procter & Gamble Commercial Co., 228 F.3d 24, 34-35 (1st Cir. 2000). "A claim is conveyed by necessary implication when, considering the advertisement in its entirety, the audience would recognize the claim as readily as if it had been explicitly stated." Id. "In considering a false advertising claim, fundamental to any task of interpretation is the principle that the text must yield to the context." S.C. Johnson & Son, Inc. v. Clorox Co., 241 F.3d 232, 238 (2d Cir. 2001) (quoting Avis Rent A Car Sys., Inc. v. Hertz Corp., 782 F.2d 381, 385 (2d Cir. 1986)). "[A] court must consider the advertisement in its entirety and not . . . engage in disputatious dissection. The entire mosaic should be viewed rather than each tile separately." Id. Furthermore, courts routinely reject disclaimers as insufficient to cure the false nature of the advertisements. See Tambrands, Inc. v. Warner-Lambert Co., 673 F.Supp. 1190, 1196 (S.D.N.Y. 1987).

Your e-Bay "store" falsely advertises your products as being licensed by the NCAA. Considered in context, the necessary implication of your representation that the merchandise is licensed is that you are an official licensee of those entities when you are not. Your false representation that you are a licensee is underscored and amplified by your unauthorized use of the logos of those leagues, including your unauthorized and false use of the NCAA logo and the logos of its member schools. Your false representations cannot be cured by a disclaimer, because the entire appearance and context of your "store" presents the false claim that you are a licensed seller of the merchandise displayed.

Furthermore, your misleading statement that the products are licensed is intended to falsely inform consumers that you are selling genuine licensed merchandise. However, you are not selling genuine Fabrique Innovations licensed NCAA merchandise. The license granted to Fabrique Innovations by the NCAA provides strict guidelines concerning the appearance of licensed products. In addition, the license provides for precise quality control measures. Our review of your "store" reveals that your marketing, repackaging and resale of Fabrique Innovations products violates the terms of Fabrique Innovations license agreement with the NCAA. In particular, it appears from our review that you have taken Fabarique Innovations merchandise and adulterated it by cutting, re-forming and repackaging it, thereby changing its appearance and design and the nature of use for which it was intended.

Your repeated reliance on the "first sale" doctrine of the Copyright Act is completely erroneous.

Whatever rights you may claim under the Copyright Act, your false statements concerning Fabrique Innovations merchandise and products derived there from clearly constitute a violation of the Lanham Act.

Accordingly, we hereby demand that you immediately:

1. cease and desist the use, promotion, distribution and sale of any Fabrique Innovations goods or products derived from Fabrique Innovations goods; and

2. provide us with the name and address of every entity to which you have promoted, distributed or sold any Fabrique Innovations goods or products derived from client goods; and

3. provide us with an accounting of all of your company's revenues from the sale of any Fabrique Innovations goods or products derived from Fabrique Innovations goods.

Unless we receive a written response before the close of business on Friday, June 10, 2005 indicating compliance with the above demands, we will take all necessary actions to protect our client's interests.

4. if these illegal blankets are not removed by 5:00 pm, we will have a summons issued against you.

Very truly yours,
Sy Garfinkel