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CARTIER v. AARON FABER INC.
August 12, 2005.
CARTIER, a division of RICHEMONT NORTH AMERICA, INC., and CARTIER INTERNATIONAL, B.V., Plaintiffs,
AARON FABER INC. d/b/a AARON FABER GALLERY, EDWARD FABER, J&P TIMEPIECES, and JOHN DOES 1-10, Defendants.
The opinion of the court was delivered by: VICTOR MARRERO, District Judge
Plaintiffs Cartier, division of Richemont North America, Inc.
and Cartier International B.V. ("Plaintiffs") having initiated
this motion for a preliminary injunction by Order to Show Cause
returnable on August 11, 2005 directing defendant J&P Timepieces
(hereinafter "Defendant") to show cause why a preliminary
injunction and an order for expedited discovery should not be
entered against it; and Defendant having been timely served with
the Summons, Complaint, Order to Show Cause and all papers in
support thereof; and Defendant having failed to appear or file
any opposition to said motions; and the Court having considered
the papers and arguments presented by Plaintiffs in support
thereof and finding that the Plaintiffs have establish a
likelihood of success on the merits of their trademark
infringement claims and irreparable harm to their interests from
the actions of Defendant; it is hereby ORDERED that the motions of plaintiffs Cartier International,
B.V. and/or Cartier, division of Richemont North America, Inc.
("Plaintiffs") for a preliminary injunction is GRANTED in the
form contained herein:
1. Defendant J&P Timepieces ("Defendant"), its
officers, agents, servants, employees, and attorneys,
and all persons in active concert or participation
with them who receive actual notice of the order by
personal service or otherwise, pending the final
hearing and determination of this action, are
enjoined from selling, offering for sale, advertising
or distributing any "Cartier" watches which have in
any way been altered or modified by any person or
entity not authorized to do so by Plaintiffs
including any such watches which have been modified
by the setting of diamonds thereon by any person or
entity not authorized by Plaintiffs.
2. To the extent a used watch has been scratched in
the normal course of use and wear, that shall not
constitute "altered or modified" for the purpose of
this preliminary injunction.
3. Nothing in the foregoing injunction shall prevent
Defendant from providing after-market services to any
customer who already owns a Cartier watch and
requests service thereof where such service
terminates in return of the watch to the same
customer upon completion of such service; and it is further
ORDERED that Plaintiffs' motion for an order of expedited
discovery is GRANTED. Defendant J&P Timepieces shall provide
expedited discovery as follows:
1. Defendant shall provide for inspection and copying
as per Rule 34 of the Federal Rules of Civil
Procedure all documents listed on the attached
Schedule A, such discovery to be sent to be received
by Plaintiffs' counsel by no later than one week from
the date of this Order.
2. Defendant shall appear for deposition, pursuant to
Rules 30(b) (1) and 30(b) (6) of the Federal Rules of
Civil Procedure, with respect to the subject matters
listed in the attached Schedule A no later than two
weeks from the date of this Order; and it is further
ORDERED that Plaintiffs shall cause this Order to be served
upon Defendant within two (2) business days from the date of this
1. The Uniform Definitions in Discovery contained in S.D.N.Y.
Local Civil Rule 26.3 (a copy of which is appended below) are
hereby incorporated into this Schedule.
2. "Defendant" shall reference defendant J&P Timepieces, and
all its agents, servants, officers, directors and employees.
1. All documents concerning any of the deposition
topics listed below.
1. The creation by Defendant of diamond-set "Cartier"
brand watches, including the acquisition of genuine
non-diamond set Cartier brand watches, the
acquisition of diamonds, the setting of diamonds on
the watches, and the identity of the diamond-setters.
2. The marketing, advertising, promotion and sale by
Defendant of diamond-set Cartier brand watches,
including, without limitation, on the Internet.
1. The respective roles and responsibilities of all
individuals in the activities of the corporate
All documents produced in expedited discovery, and
the search for such documents.
Local Civil Rule 26.3 Uniform Definitions in Discovery Requests
(a) The full text of the definitions and rules of construction
set forth in paragraphs (c) and (d) is deemed incorporated by
reference into all discovery requests. No discovery request shall
use broader definitions or rules of construction than those set
forth in paragraphs (c) and (d). This rule shall not preclude (1)
the definition of other terms specific to the particular
litigation, (2) the use of abbreviations, or (3) a more narrow
definition of a term defined in paragraph (c).
(b) This rule is not intended to broaden or narrow
the scope of discovery permitted by the Federal Rules
of Civil Procedure.
(c) The following definitions apply to all discovery
(1) Communication. The term "communication" means
the transmittal of information (in the form of facts,
ideas, inquiries or otherwise).
(2) Document. The term "document" is defined to be
synonymous in meaning and equal in scope to the usage
of this term in Federal Rule of Civil Procedure
34(a), including, without limitation, electronic or
computerized data compilations. A draft or
non-identical copy is a separate document within the
meaning of this term.
(3) Identify (with respect to persons). When
referring to a person, "to identify" means to give,
to the extent known, the person's full name, present
or last known address, and when referring to a
natural person, additionally, the present or last
known place of employment. Once a person has been
identified in accordance with this subparagraph, only
the name of that person need be listed in response to
subsequent discovery requesting the identification of
(4) Identify (with respect to documents). When
referring to documents, "to identify" means to give,
to the extent known, the (i) type of document; (ii)
general subject matter; (iii) date of the document;
and (iv) author(s), addressee(s) and recipient(s).
(5) Parties. The terms "plaintiff" and "defendant"
as well as a party's full or abbreviated name or a
pronoun referring to a party mean the party and,
where applicable, its officers, directors; employees,
partners, corporate parent, subsidiaries or
affiliates. This definition is not intended to impose
a discovery obligation on any person who is not a
party to the litigation.
(6) Person. The term "person" is defined as any
natural person or any business, legal or governmental
entity or association.
(7) Concerning. The term "concerning" means
relating to, referring to, describing, evidencing or
(d) The following rules of construction apply to all discovery
(1) All/Each. The terms "all" and "each" shall be
construed as all and each.
(2) And/Or. The connectives "and" and "or" shall be
construed either disjunctively or conjunctively as
necessary to bring within the scope of the discovery
request all responses that might otherwise be
construed to be outside of its scope.
(3) Number. The use of the singular form of any
word includes the plural and vice versa. On July 25, 2005, this Court, on motion of plaintiffs Cartier,
division of Richemont North America, Inc., and Cartier
International B.V. ("Plaintiffs") for a preliminary injunction,
ordered defendants Aaron Faber, Inc. and Edward Faber
(hereinafter "Defendants") to show cause why a preliminary
injunction should not be entered against them. Plaintiffs and
Defendants each submitted papers in support of or in opposition
to the prayer for a preliminary injunction. The Court held a
hearing on August 11, 2005 with respect to Plaintiffs' Motion.
The Court, after consideration of the papers submitted by the
parties and the arguments presented at the hearing, ruled in open
court that Plaintiffs' prayer for a preliminary injunction was
granted. The Court found that Defendants' activities created a
likelihood of confusion, in that they sold or claimed to sell
what they claimed was a product indistinguishable to the naked
eyes from that created by Cartier (see Decl. of Carol Ball,
dated July 20, 2005, ¶ 4, attached to Pls.' Order to Show Cause), and a danger
of irreparable harm to Plaintiffs' interests, in that the
inferior counterfeit product was not an actual Cartier product
but was clearly marked as such ...
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