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MANA PRODS. v. COLUMBIA COSMETICS MFG.

July 29, 1994

MANA PRODUCTS, INC. a/k/a YOUR NAME COSMETICS, INC., Plaintiff,
v.
COLUMBIA COSMETICS MFG., INC., Defendant.


Amon


The opinion of the court was delivered by: CAROL BAGLEY AMON

AMON, UNITED STATES DISTRICT JUDGE

 I. Introduction

 Plaintiff Mana Products, Inc. ("Mana") brought this action alleging that defendant sold and continues to sell cosmetics products confusingly similar to Mana's, in violation of the Lanham Act, 15 U.S.C. § 1125(a), and the New York state common law of unfair competition. Plaintiff also requests injunctive relief under the New York anti-dilution statute, N.Y. Gen. Bus. Law § 368-d (McKinney 1984). Currently before the Court is defendant's motion for summary judgment pursuant to Fed. R. Civ. P. 56(c). For the reasons that follow, the motion is granted.

 II. Background

 Mana develops and manufactures a line of "private label" cosmetics products known as "Your Name Cosmetics." The products are sold to beauty salons and other retailers, who affix their own labels to the products and resell them to consumers. According to the complaint, from 1979 to 1982 defendant Columbia Cosmetics Manufacturing, Inc. ("Columbia") was an authorized distributor of Mana's product line. See Compl. P 6. Since then defendant has marketed a competing line of cosmetics products to private label resellers in the retail market. See id.; Aff. of Eugene P. Devany P 4.

 Plaintiff's complaint contained broad allegations that defendant copied both the geometric shape and color of Mana's cosmetics products and the exotic names used to describe the various shades of color included in its cosmetics kits. See Compl. PP 10--11. In addition, the complaint alleged that defendant used catalogs, price lists, and "client procurement materials" confusingly similar to those used by Mana. See id. P 8. Beyond these generic accusations, however, the complaint did not detail any specific acts of copying or specific products that allegedly were infringed. Although plaintiff appended as exhibits several examples of sales materials and advertisements of Your Name products, their relevance remained unclear because none was directly referenced in the text of the complaint, and because the exhibits had no apparent correspondence with any of defendant's products. Plaintiff's briefing of the issues and efforts to supplement the record on this motion were even less informative.

 More importantly, in opposing defendant's motion for summary judgment, plaintiff has evidently abandoned its earlier expansive approach. At oral argument, counsel for Mana narrowed the factual basis of plaintiff's claims to include only the similar size, shape, and color of certain powder, blush, and eye shadow compacts that comprise a portion of both parties' product lines. See Transcript of Oral Argument, Sept. 25, 1992 [hereinafter "Tr."], at 3. Counsel for plaintiff did not dispute the assertion of defendant's counsel that Columbia had ceased using any of Mana's color names and catalog numbers and that any conceivable infringement was "inconsequential," other than the alleged copying of the makeup compacts. Tr. 12. Plaintiff's counsel indicated that the copying of the compacts was "the heart of [Mana's] contention here." Tr. 13. In light of these representations, the Court must treat the alleged infringement of Mana's makeup compacts as the sole remaining basis for plaintiff's claims. *fn1"

 The only evidence submitted by plaintiff as proof of the alleged infringement consists of four photographs of its own and Columbia's compacts. See Pl.'s Counter-Statement Under Rule 3(g), Ex. A, B. Columbia concedes that the compacts are virtually identical in appearance and design. See Devany Aff. P 9; Tr. 11. The photographs are in two pairs. Each photograph shows a group of eight rectangular or square plastic cosmetics cases in either open or closed position. The top of each case opens on a hinge and holds a round of

 [ILLEGIBLE WORDS] while the bottom contains one or more similarly shaped tins of powder or eye shadow and, in most cases, a small applicator wand. All of the compacts are black, with no decorative or other distinguishing features, except that two of Mana's cases, unlike the similar cases sold by Columbia, have white tops.

 III. Discussion

 Summary judgment is proper "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed. R. Civ. P. 56(c). The Court's function is not to resolve disputed issues of fact, but only to determine whether there is a genuine issue to be tried. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S. Ct. 2505, 2510, 91 L. Ed. 2d 202--11 (1986); Eastman Mach. Co. v. United States, 841 F.2d 469, 473 (2d Cir. 1988). In making this determination, the Court must view the evidence in the light most favorable to the nonmoving party. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S. Ct. 1598, 1608, 26 L. Ed. 2d 142 (1970).

 Under Rule 56, no genuine issue exists "unless there is sufficient evidence favoring the nonmoving party for a jury to return a verdict for that party. If the evidence is merely colorable, or is not significantly probative, summary judgment may be granted." Anderson, 477 U.S. at 249-50, 106 S. Ct. at 2511 (citations omitted). Moreover, one part,

 [ILLEGIBLE WORDS] judgment must initially "identify[] those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S. Ct. 2548, 2552, 91 L. Ed. 2d 265 (1986) (quoting Fed. R. Civ. P. 56(c)). Of particular relevance in the present case is the Supreme Court's holding in Celotex that summary judgment may be entered against a nonmovant who, after adequate time for discovery, fails to establish the existence of an essential element of his case on which he will ...


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