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Burberry Limited, A United Kingdom Corporation Burberry Limited, A New York Corporation v. Asher Horowitz

November 26, 2012

BURBERRY LIMITED, A UNITED KINGDOM CORPORATION BURBERRY LIMITED, A NEW YORK CORPORATION PLAINTIFFS,
v.
ASHER HOROWITZ, DEFENDANT.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge:

USDC SDNY

DOCUMENT

ELECTRONICALLY FILED

DOC #: _________________

OPINION & ORDER

This lawsuit is virtually identical to litigation Burberry began 5 years ago which ended almost 3 years ago with a judgment in Burberry's favor against Designers Imports, Inc., d/b/a Designers Imports.Com USA, Inc. 07 Civ. 3997 (PAC). In that proceeding, after discovery was complete, the Court conducted a two-day bench trial and found that Defendant had engaged in trademark counterfeiting and infringement, false designation, trademark dilution and violation of both New York statutory and common law for breach of contract, trademark infringement and unfair competition. The Court awarded damages with interest, costs and attorneys' fees, totaling more than $2.5 million; and entered a permanent injunction prohibiting Designers Imports and its officers, agents, employees and any persons acting in concert with the corporate defendant from infringing any Burberry trademark. No appeal was taken.

The current action, 12 Civ. 1219 (PAC), involves the same allegations, the same products, the same conduct, but instead of the corporate entity, Burberry has named Asher Horowitz as Defendant. Burberry has known since at least 2004 that Horowitz runs an on-line retail business for the sale of designer handbags, accessories and clothing - Designers Imports. He is - and has been for the entire period - Designers Imports' founder, its principal, its sole shareholder, and its sole officer.

Burberry has been engaged in a legal battle with Horowitz and Designers Imports since 2004. The first chapter was resolved, more or less amicably, with the 2005 Settlement Agreement. The Settlement Agreement named both Horowitz and Designers Imports as parties, and both Horowitz and Designers Imports, jointly and severally, made representations and warranties concerning their behavior, vis-a-vis, Burberry. Horowitz signed the Agreement on behalf of Designers Imports and himself, individually.

In the prior action Burberry commenced in 2007, Designers Imports stipulated the following facts:

(1) Horowitz is the owner and Chief Operating Officer of Designers Imports;

(2) Horowitz is the sole officer, director, and shareholder of Designers Imports;

(3) Horowitz sets the price for goods sold by Designers Imports;

(4) Horowitz decides what will be displayed on Designers Imports' website; and

(5) Horowitz determines what Burberry-branded goods would be sold on Designers Imports' website.

After judgment was entered on June 25, 2010 in Burberry's favor, Burberry sought enforcement of the judgment against Horowitz personally in a proceeding in New York Supreme Court. Horowitz moved to dismiss, but the motion was denied. That action is still pending.

When Burberry commenced the current action on February 16, 2012, it submitted a "Contention of Related Case" which concedes that: "the Plaintiffs in both actions [2007 Civ. 3997 and 12 Civ. 1219] are the same and both actions involve the same wrongful acts of trademark counterfeiting . . . The current action is brought against defendant Asher Horowitz, the sole shareholder and officer of the corporate defendant in the [07 Civ. 3997]. The same wrongful activities are at issue in this action; Plaintiffs now seek to ...


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