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TOMMY HILFIGER LICENSING, INC. v. TEE'S AVE.

April 29, 1996

TOMMY HILFIGER LICENSING, INC., NAUTICA APPAREL, INC., POLO RALPH LAUREN, L.P., THE TIMBERLAND CO., GUESS?, INC., NIKE, INC., ADIDAS AG, ADIDAS AM., INC., FILA USA, INC., and D.C. COMICS, Plaintiffs, against TEE'S AVE., INC., TOMMY TAM, KWONG MEI NAM, M&N CO., INC., SWEATSHIRTS & MORE, INC., SSM SPORTSWEAR, ABIO SPORT, INC., FREDERICK WEDIN, SAMMY ZAMIR, SID BLOCK and ABRAHAM SPITZER, Defendants.


The opinion of the court was delivered by: BATTS

 DEBORAH A. BATTS, United States District Judge.

 The Plaintiffs bring this action pursuant to the Trademark Act of 1946, 15 U.S.C. § 1114, for trademark infringement allegedly committed by the Defendants. Defendants M&N Co., Inc., Sweatshirts & More, Inc., SSM Sportswear, Abio Sport, Inc., Frederick Wedin, Sammy Zamir, Sid Block and Abraham Spitzer (collectively "M&N Defendants"), now move to dismiss the Complaint, Amended Complaint, Temporary Restraining Order and Preliminary Injunction. *fn1"

 I. BACKGROUND

 On November 3, 1995, based on Plaintiffs' submissions, including Plaintiffs' Memorandum in Support of Motion for Temporary Restraining Order, Seizure Order, Expedited Discovery and Preliminary Injunction; Declaration of Dumpster Leech; Declaration of Barbara Kolsun; Memorandum in Support of Ex Parte Motion to Seal File; a proposed Ex Parte Order Temporarily Sealing the File; and a proposed Order Granting Ex Parte Temporary Restraining Order and Seizure Order, Order Granting Expedited Discovery, Order to Show Cause for a Preliminary Injunction, and Order Setting Bond, the Court took the following action:

 The Court granted an ex parte Temporary Restraining Order, restraining Tee's Ave., Inc., M&N Co., Inc. and ten John Doe Defendants from, among other acts, continuing use of any of the Plaintiffs' trademarks.

 The Court issued a Seizure Order, ordering the United States Marshals to remove specific counterfeit property, detailed in the Order, from the Defendants' properties, also detailed in the Order.

 The Court issued an Order to Show Cause why a preliminary injunction should not be granted in the Plaintiffs' favor. A hearing was scheduled for November 16, 1995, and a briefing schedule set.

 In addition, the Court granted expedited discovery, ordered that a $ 25,000 bond be set, and ordered the records temporarily sealed.

 On November 7, 1995, the United States Marshal service executed the Seizure Order. The Order provided that property should be seized from "Tee's Avenue, Inc., 1205 Broadway, Room 304, New York, New York 10001 and M&N Company, 1205 Broadway, Room 203, New York, New York 10001 and 109 South 5th Street, 4th and 6th Floors, Brooklyn, New York 11211." The Marshals accompanied by John Malone, an investigator hired by the Plaintiffs, went first to 1205 Broadway. (Malone Aff. P 3.) The tenants occupying the space told the Marshals that M&N Co., Inc. no longer occupied the area. (Id.) The Marshals then proceeded to 109 South 5th Street. (Id.) Upon arrival, the freight elevator operator not being present, Malone and two Marshals walked to the 6th Floor of the building. (Id.) An employee of a futon manufacturer advised the Marshals that the company that used to be on the 6th Floor only occupied half of the floor and moved to the 2nd Floor. (Id.) Once on the second floor, Barbara Kolsun, the Plaintiffs' attorney, joined the Marshals and Malone. (Kolsun Aff. P 5.) Soon after her arrival, the building's landlord, Ken Stier, arrived and confirmed that the tenants who used to occupy the whole 6th Floor, now occupied only half of it and moved to the 2nd Floor. Those tenants no longer occupied the 4th Floor. (Id.) The Marshals then proceeded to seize items from the 6th and 2nd floors of the building.

 On November 16, 1995, counsel for the Plaintiffs and counsel for some of the Defendants appeared before the Court for a preliminary injunction hearing. Defendant M&N Co., Inc. was represented by counsel, who would possibly represent many of the John Does now named in the Amended Complaint. The Tee's Ave. Defendants (Tee's Ave., Inc., Tommy Tam, and Kwong Mei Nam) did not appear and were not represented, although they had been served prior to the hearing. *fn2" The parties present were directed to agree on a discovery schedule and the continuation of the Temporary Restraining Order. The Court entered a Preliminary Injunction against the Tee's Ave. Defendants, who did not appear at the hearing, and issued an order unsealing the court file.

 On December 12, 1995, the Court so ordered a stipulation extending the Temporary Restraining Order until such time as a dispositive motion was decided, or the Court decided a motion for preliminary injunction.

 On February 20, 1996, a Default Judgment was entered against the ...


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