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Bondar v. LASplash Cosmetics

December 11, 2012


The opinion of the court was delivered by: Shira A. Scheindlin, U.S.D.J.



Plaintiff Iuliana Bondar brings this action against LASplash Cosmetics ("LASplash"), Jon Davler, Inc. ("Davler"), David Byun ("Byun"), and David Byun Creative, Inc. ("Byun Creative").*fn1 Bondar asserts five cauees of action: (1) unfair competition and false designation of origin under the Lanham Act; (2) unfair competition under New York law; (3) unjust enrichment under New York law; (4) violation of the New York Civil Rights Law ("NYCRL") Sections 50 and 51; and (5) fraudulent misrepresentation (against Byun only). Defendants move for judgment on the pleadings on all claims under Federal Rule of Civil Procedure 12(c). Additionally, Defendants move to dismiss for lack of subject matter jurisdiction under Rule 12(b)(1) in the event that Bondar's Lanham Act claims are dismissed. For the reasons that follow, Defendants' judgment on the pleadings is granted in part and denied in part, and defendants' motion to dismiss for lack of subject matter jurisdiction is denied.


A. Facts

Bondar is a fashion model residing in New York City.*fn3 She has appeared in fashion magazines, advertising campaigns, and runways across the world, walking for luminaries such as Donna Karan, Marc Jacobs, and Vera Wang, and appearing in publications such as Italian Vogue.*fn4 The Complaint alleges that she is "well known."*fn5
Defendant LASplash is a division of Davler, a California corporation with its principal place of business in California.*fn6 Collectively, Davler and LASplash are engaged in the business of designing and manufacturing cosmetics, which are sold domestically and internationally.*fn7 In the United States, LASplash's cosmetics are sold primarily in drug stores.*fn8 Byun is a fashion photographer based in New York, and Byun Creative is a New York corporation that allegedly acts as his alter-ego.*fn9
On or around January 4, 2010, Byun, on behalf of Byun Creative, contacted David Kim, of Bondar's management agency Major Models, to arrange a photo shoot.*fn10 Byun stated that the shoot was a "really small make up job for a friend of mine" consisting solely of a test for a product.*fn11 Byun's Answer alleges that Byun contacted Kim via e-mail on January 4, 2010, and that they had the following exchange:

[Byun to Kim]: I would need to do a really small make up job for a friend of mine. I don't think I can hire a model that belongs to an agency. [S]ince it's international usage for [one] year for only $1500 do you know any models that[] [are] good but [don't] really have [] representation? [S]ince it's beauty I just need a good face.

[L]ooking forward to hearing back from you. [Kim's response to Byun]: No worries. Of course I can help. Is it full usage for [one] year? Can I ask what the brand is? [M]aybe one of the girls we have really needs money and would do it. [Byun response to Kim]: yes it's [Kim's 01/05/10 Response to Byun]

I have good news. She will do it because its you and because I said it would be a great thing for her and you to work together again.*fn12

On January 11, 2010, Bondar did the photo shoot with Byun at George Brown Studio, in Manhattan (the "Photo Shoot").*fn13 Per the call sheet, Bondar was paid fifteen-hundred dollars for the Photo Shoot.*fn14 She never signed a release in connection with the Photo Shoot, and she alleges that she would not have agreed to be "the face" of LASplash.*fn15 Subsequently, images from the Photo Shoot were used by LASplash and Davler in an advertising campaign for LASplash cosmetics.

The Complaint alleges that Byun and Byun Creative sold Bondar's images to LASplash and Davler for commercial advertising use, without release or authorization, in order to avoid paying the customary rate for a high-fashion model of Bondar's caliber.*fn16 The Complaint further alleges that Bondar's career has been damaged because she cannot pursue modeling contracts that require exclusivity, and because her brand has been tarnished.*fn17

LASplash's Answer alleges that LASplash used Bondar's image in four nationwide advertisements for three different types of products, namely lip gloss, eyeliner, and eye shadow. *fn18 These products were offered for sale in New York at least as early as 2010, and continued to be offered for sale afterwards.*fn19

Beginning in 2010, LASplash also used Bondar's on in-store displays promoting its lip gloss and eyeliners in various ULTA Beauty stores in New York.*fn20

However, the Complaint alleges that "[Within the year of Bondar filing her complaint] [d]efendants . . . have featured Bondar's image for the first time to promote new products and merchandise at trade shows, promotional events and at retail outlets in the State of New York . . . ."*fn21

Affixed to the Complaint are images purportedly showing that Bondar's face was used in connection with a New York promotion for LASplash's new product "Enlightened Cream Shadow Base" on March 28, 2011.*fn22

As to the Lanham Act and unfair competition claims, the Complaint alleges that defendants' conduct was willful, knowing, and/or reckless, and that LASplash's use of Bondar's images in its advertising campaign misrepresents to the general public that Bondar endorses LASplash, creating a likelihood of confusion by consumers.*fn23 As to the unjust enrichment claim, the Complaint alleges that defendants obtained a pecuniary benefit from Bondar's likeness without her knowledge or consent.*fn24 As to the NYCRL claim, the Complaint alleges that defendants, without Bondar's consent, misappropriated her likeness for commercial purposes, and "within [a] year of Bondar filing her complaint, have featured Bondar's image for the first time to promote new products . . . ."*fn25

Finally, as to the fraudulent misrepresentation claim (directed solely at Byun), the Complaint alleges that Byun's alleged statement that the Photo Shoot was a "'really small make up job for a friend of mine' consisting solely of testing for a product" was false when made, and that Byun knew it was false when it was made.*fn26


A. Judgment on the Pleadings Standard

Federal Rule of Civil Procedure 12(c) provides that "[a]fter the pleadings are closed-but early enough not to delay trial-a party may move for judgment on the pleadings." "On a 12(c) motion, the court considers 'the complaint, the answer, any written documents attached to them, and any matter of which the court can take judicial notice for the factual background of the case.'"*fn27

"The standard for addressing a Rule 12(c) motion for judgment on the pleadings is the same as that for a Rule 12(b)(6) motion to dismiss for failure to state a claim."*fn28 In deciding a motion to dismiss pursuant to Rule 12(b)(6), the court "must accept all non-conclusory factual allegations [in the complaint] as true and draw all reasonable inferences in the plaintiff's favor."*fn29

The court evaluates the sufficiency of the complaint under the "two-pronged approach" suggested by the Supreme Court in Ashcroft v. Iqbal.*fn30 Under the first prong, a court "'can . . . identify[] pleadings that, because they are no more than conclusions, are not entitled to the assumption of truth.'"*fn31 Thus, "[t]hreadbare recitals of the elements of a cause of action, supported by mere conclusory statements, do not suffice" to withstand a motion to dismiss.*fn32 Under the second prong of Iqbal, "[w]hen there are well-pleaded factual allegations, a court should assume their veracity and then determine whether they plausibly give rise to an entitlement for relief."*fn33 A claim is plausible "when the plaintiff pleads factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct alleged."*fn34

Plausibility "is not akin to a probability requirement;" rather, plausibility requires "more than a sheer possibility that a ...

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