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Two Kids from Queens, Inc. v. J&S Kidswear

December 30, 2009

TWO KIDS FROM QUEENS, INC., AND 1812 CLOTHING CORP. D/B/A/ "MAX & GINO'S ALL AMERICAN CLOTHING CO., PLAINTIFFS,
v.
J&S KIDSWEAR, INC., R.B.K. CHILDREN'S WEAR, INC., AND RON KLEIN, INDIVIDUALLY, AND D.B.A "DENNY'S CHILDRENSWEAR," FLOWERS BY ZOE, INC., CANTEEN, INC., AND SO NIKKI, INC., INDIVIDUALLY, AND D/B/A "SO NIKKI" AND/OR "LUCY," DEFENDANTS.



The opinion of the court was delivered by: Hurley, Senior District Judge

MEMORANDUM & ORDER

The purpose of this memorandum is to address the threshold issue of whether there was a delay by Plaintiff in seeking a preliminary injunction sufficient to deny said relief. For the reasons set forth below, the Court concludes that there was such a delay and accordingly denies the motion for a preliminary injunction. Given the nature of the claims, however, the Court shall order expedited discovery and an expedited trial of the merits.

Background

Plaintiffs Two Kids from Queens, Inc. and 1812 Clothing Corp. ("Plaintiffs") commenced this action on August 25, 2009 seeking "injunctive relief and money damages" for defendants' alleged "deliberate trade dress and copyright infringement." Compl. at ¶ 1. Named as defendants in the complaint are J & S Kidswear, Inc. ("J&S"), R.B.K Children's Wear, Inc. ("R.B.K.") and Ron Klein, individually and doing business as Denny's Childrenswear ("Klein") (J&S, R.B.K and Klein are collectively referred to as the "Defendants"), Flowers by Zoe, Inc., Canteen Inc., and So Nikki, Inc. However, Plaintiffs stipulated to dismissal of the claims against Flowers by Zoe, Inc., Canteen Inc., and So Nikki, Inc. ("Dismissed Defendants") and therefore only the claims against Defendants remain.

According to the allegation in the Complaint, Plaintiffs began selling their unique apparel in December 2006, the nine distinctive elements of which constitute trade dress, under the trademark "Butter Super Soft." The trade dress consists of the following:

[1.] R&R Pattern: in the center of the rear panel of the garment, sequin rhinestones and rhinestuds are arranged in an iridescent and color-specific graphic array, together arranged to reflect a symbol.

[2.] First Lettering: in a curvature manner above the R&R Pattern, bold lettering is provided in a non-serifed font, with the letters all comprised of the same color ("Color 1");

[3.] Second Lettering: in a straight line manner below the R&R pattern, bold lettering is employed in a non-serifed font, with the letters all comprised of the same color but a color differing from Color 1 in the First Lettering (and often of the color white) ("Color 2");

[4.] Subscript Symbol: underlying the Second lettering, a subscript symbol is used representing a smaller but identifying similar version of the R&R Pattern symbol, and comprised of Color 1;

[5.] Third Lettering: advancing downwardly on a sleeve from shoulder to wrist band, bold lettering is shown in a non-serifed font, with the letters all comprised of the same color but of a color differing from the First and Second Bold Lettering (and often of the color yellow);

[6.] Fourth Lettering: advancing downwardly on the second sleeve from shoulder to wrist band, script-styled lettering (I.E. a non-bold font) is employed with the letters all comprised of the same color but of a color differing from the First, Second, and Third Lettering;

[7.] Thematic Similarity: all elements "work together" to impart a theme reminiscent of themes from music and an era of the 1960s though the 1970s in a color array;

[8.] Material Selection: each garment is comprised of a material of sufficient weight to permit garment dyeing and washing, in preparation for, and in advance of, application of elements [1] through [6]; and

[9.] Color Array: the garments are developed in an array of six (6) pantone-specific colors selected from thousands of available pantone colors, which are obtained from repeating ...


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