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GUCCI AMERICA, INC. v. ACCENTS

February 23, 1998

GUCCI AMERICA, INC. and CHANEL, INC., Plaintiffs,
v.
ACCENTS; E. KRAMER & COMPANY d/b/a ACCENT ON YOU; ELLEN KRAMER; ADELE KAUFF, INC.; RICHARD KAUFF; JENNIFER KAUFF; TRIANGLE TRADING, INC. d/b/a MIAMI DUTY FREE ZONE and DUTY FREE ZONE; DUTY FREE BROKERS CORP.; 1000 SCENTS, INC.; STEVEN FACELLA a/k/a STEVEN FICHELLA; CRAIG BENNETT; JOANNA FELS; WINDSOR MARKETING, INC. a/k/a WINDSOR TRADING; FELCO, INC. a/k/a FELCO BROS. INC. and FELCO INTERNATIONAL INC.; CONSOLIDATED TRADERS, INC.; MENACHEM FELLIG a/k/a MENDY FELLIG and MAX FELLIG; FAYGIEL FELLIG a/k/a FAYE FELLIG and FAYGIE FELLIG; and JOHN DOES 1 through 20, Defendants.



The opinion of the court was delivered by: RAKOFF

 JED S. RAKOFF, U.S.D.J.

 The trial of this trademark counterfeiting case, scheduled to commence trial next week, presents some nice questions as to which of the parties' disputes are to be resolved by the jury and which by the Court.

 The plaintiffs, Gucci America, Inc. and Chanel Inc., accuse the captioned defendants of trafficking in counterfeit trademarked handbags, in violation of the Lanham Trademark Act, 15 U.S.C. § 1051 et seq., and New York common law. By Memorandum Order dated November 4, 1997, the Court dismissed the claims against defendant Faygiel Fellig, *fn1" but held the remaining defendants liable for trademark infringement as a matter of law. While, in the same Order, the Court initially denied the motion of plaintiff Gucci for leave to further amend its complaint to add claims that the defendants also trafficked in counterfeit trademarked belts, the Court, by telephonic order of January 26, 1998, granted Gucci's motion on reconsideration, finding that plaintiffs had successfully shown that defendants would suffer no material prejudice from the amendment. See Cresswell v. Sullivan & Cromwell, 922 F.2d 60, 72 (2d Cir. 1990). *fn2"

 Accordingly, the following issues remain for trial:

 (1) The issues of liability and damages on plaintiffs' common law claims. It is undisputed that these issues are for the jury.

 (2) The issues of liability and damages on the Triangle Defendants' cross-claim. It is undisputed that these issues are for the jury.

 (3) The issue of whether the defendants are liable for trademark infringement with respect to the Gucci belts. It is undisputed that this is an issue for the jury.

 (4) The determination of the amount of actual damages proximately caused by any of the violations for which defendants are liable. It is undisputed that this is an issue for the jury. Dairy Queen, Inc. v. Wood, 369 U.S. 469, 476-479, 8 L. Ed. 2d 44, 82 S. Ct. 894 (1962). *fn3"

 (5) The determination of any injunctive relief to be granted on any violations for which defendants are found liable. It is undisputed that this is an issue for the Court.

 (6) The determination of whether defendants' trademark infringement was conducted with willful deceptiveness, so as to permit plaintiff to recover defendants' profits (in addition to plaintiffs' actual damages) pursuant to 15 U.S.C. § 1117(a). See George Basch Co., Inc. v. Blue Coral, Inc., 968 F.2d 1532, 1540 (2d Cir. 1992).

 (7) If such willful deceptiveness is found, the determination of the amount of defendants' profits recoverable by plaintiffs.

 (8) The determination of whether defendants' trademark counterfeiting was intentional, so as to entitle the plaintiffs (absent extenuating circumstances) to recover treble the amount of plaintiffs' actual damages and treble the amount of defendants' profits, pursuant to 15 U.S.C. § 1117(b).

 The parties dispute whether issues # 6, # 7 and # 8 are for the Court or the jury. Existing precedent is likewise divided. Compare, e.g., Oxford Industries, Inc. v. Hartmarx Corp., 1990 U.S. Dist. LEXIS 5979, No. 88 C 0322, 1990 WL 65792 (N.D. Ill. May 2, 1990) (claim for profits properly tried to jury) with G.A. Modefine S.A. v. Burlington Coat Factory Warehouse Corp., 888 F. Supp. 44, 46 (S.D.N.Y. 1995) (claim for profits did not require jury trial). In this Court's view, the key to resolving these disputes lies in ...


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