United States District Court, S.D. New York
For Plaintiffs: Bennett D. Krasner, Esq., THE LAW OFFICES OF BENNETT D. KRASNER, Atlantic Beach, NY.
For Defendants: Brian S. Kaplan, Esq., Daniel Turinsky, Esq., Evan D. Parness, Esq., KASOWITZ, BENSON, TORRES & FRIEDMAN LLP, New York, NY.
ROBERT W. SWEET, United States District Judge.
Defendant Men Women N.Y. Model Management Inc. (" Women NY" ) has moved to compel plaintiffs Ginta Lapina (" Lapina" ) and Gingin Management Ltd. (" Gingin," together with Lapina, the " Plaintiffs" ) to arbitrate their claims against Women NY. Based on the conclusions set forth below, the motion is granted and the Plaintiffs are directed to proceed to arbitration.
Plaintiffs filed their complaint (" Complaint" ) on August 25, 2014, alleging claims for unfair competition and trademark dilution in violation of the Lanham Act, 15 U.S.C. § 1125 (a) and (c) (Counts I and IV); violation of the New York Statutory Right of Publicity, New York Civil Rights Law § § 50 and 51 (Count II); common law unfair competition (Count III); civil conspiracy (Count V); unjust enrichment (Count VI); breach of contract (Count VII); and breach of fiduciary duty (Count VIII). Among the named defendants are
Women NY; Women Management Inc. (" WMI" ); Women Model Management Inc. (" WMMI" ); Men Women Model Management Inc. (" Men Women" ); Women Management S.A.R.L. (" Women Paris," together with Women NY, WMI, WMMI, and Men Women, the " Women Defendants" ); Elite World S.A. (" Elite" ); Henkel of America, Inc. (" HOA" ); Henkel AG & Co., KGAA (" HAG," together with HOA, the " Henkel Defendants" ); Koninklijke Philips N.V. (" KPNV" ); and, Philips North America Corporation (" Philips NA," together with KPNV, the " Philips Defendants" ). Women N.Y. filed its motion to compel arbitration on September 19, 2014.
The motion was heard and marked fully submitted on October 29, 2014.
The allegations of the Complaint are assumed to be true and are summarized only to the extent necessary to dispose of Women NY's motion to compel arbitration. The facts recounted herein are drawn from the Complaint and the agreements between the parties which are described in detail below.
Lapina is a " celebrity fashion model" who has been represented by Women NY, a New York-based model management company, since 2008, when she made her fashion runway debut. (Compl. ¶ ¶ 15, 32.) Lapina " has gained significant U.S. and international public recognition in the modeling industry by virtue of her work in the industry since 2005," and " has created a brand in her image and persona subject to protection against infringement and dilution." (Compl. ¶ 37.) Gingin " owns the intellectual property rights to the celebrity image and persona of" Lapina, and is one of Lapina's representatives. (Compl. ¶ 16.) Elite is the majority owner of Women NY. (Compl. ¶ 7, 22.)
Women Paris is a French affiliate of Women N.Y. that " handled billing and collections" for Lapina in France. (Compl. ¶ ¶ 21, 47.)
The Henkel Defendants are foreign corporations that market and distribute the Schwarzkopf line of hair care products, and the Philips Defendants are foreign corporations that market and distribute the Philips line of hair care products. (Compl. ¶ ¶ 8-11, 23-26.)
On January 15, 2013, Lapina renewed her exclusive model management contract with WMI for a three-year term expiring on January 15, 2016 (" 2013 Agreement" ). (Compl. ¶ 38, Ex. B.) Pursuant to the 2013 Agreement, Lapina appointed and engaged WMI as her " sole and exclusive personal manager" for the entire term of the 2013 Agreement. (2013 Agreement ¶ 1.) WMI's responsibilities under the 2013 Agreement include, among other things, (i) providing advice and counsel to Lapina concerning " the selection or consideration of career
opportunities, photographers and advertisers," " all matters pertaining to publicity, public relations and advertising," and general practices in the modeling industry; (ii) developing, negotiating, organizing, and administering " income producing opportunities available as a result of [Lapina's] stature in the fashion industry, including, without limitation, licensing, endorsement, personal appearances, and publishing opportunities; " (iii) sending invoices to clients and collecting fees earned by Lapina; and (iv) providing advice concerning requests to use Lapina's " name, photograph, likeness, or other item intended to make reference to [Lapina]." (Id.)
Under the 2013 Agreement, Lapina agreed to pay WMI a commission for the performance of its services, and acknowledged that WMI was not licensed " as an employment agency under the general business law of the State of New York" and " has at all times advised [Lapina] that it is not licensed to seek or obtain employment or engagements for [Lapina] and [Women NY] does not agree to do so." (2013 Agreement ¶ ¶ 2, 10(a).) Lapina further acknowledged in the 2013 Agreement that the performance of WMI's services " is in the capacity of an independent contractor" and not an employer. (2013 Agreement ¶ 10(b).) Lapina granted WMI " the right to use [Lapina's] name, likeness, voice, biography, or other item intended to make reference to [Lapina] in connection with ...