Lagos, Inc. v. David Yurman IP Llc et al

MOTION TO DISMISS FOR FAILURE TO STATE A CLAIM

E.D. Pa.March 8, 2017

UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA -------------------------------------------------------------- x 17 Civ. 315 (PBT) LAGOS, INC., Plaintiff, - against - DAVID YURMAN IP LLC and DAVID YURMAN ENTERPRISES LLC, Defendants. : : : : : : : : : : : : -------------------------------------------------------------- x MOTION TO DISMISS OF DEFENDANTS DAVID YURMAN IP LLC AND DAVID YURMAN ENTERPRISES LLC Defendants David Yurman IP LLC and David Yurman Enterprises LLC (collectively, “Defendants”), by and through their undersigned counsel, respectfully submit the following Motion to Dismiss pursuant to FRCP 12(b)(6), for the reasons set forth in the accompanying Memorandum of Law. Defendants respectfully request that the Court schedule Oral Argument at the Court’s earliest convenience. Respectfully submitted, /s/ Noah S. Robbins M. Kelly Tillery Noah S. Robbins PEPPER HAMILTON LLP 3000 Two Logan Square Philadelphia, PA 19103-2799 215-981-4000 tilleryk@pepperlaw.com robbinsn@pepperlaw.com Case 2:17-cv-00315-PBT Document 13 Filed 03/08/17 Page 1 of 2 Louis S. Ederer* Matthew T. Salzmann* Tal Machnes* ARNOLD & PORTER KAYE SCHOLER 250 West 55th Street New York, NY 10019-9718 212-836-8144 Louis.Ederer@apks.com Matthew.Salzmann@apks.com Tal.Machnes@apks.com Attorneys for Defendants David Yurman IP LLC and David Yurman Enterprises LLC * Pro Hac Vice Motion pending Dated: March 8, 2017 Case 2:17-cv-00315-PBT Document 13 Filed 03/08/17 Page 2 of 2 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA -------------------------------------------------------------- x 17 Civ. 315 (PBT) LAGOS, INC., Plaintiff, - against - DAVID YURMAN IP LLC and DAVID YURMAN ENTERPRISES LLC, Defendants. : : : : : : : : : : : : -------------------------------------------------------------- x [PROPOSED] ORDER On this __________ day of ______________, 2017, upon consideration of the Motion to Dismiss of Defendants David Yurman IP LLC and David Yurman Enterprises LLC, and any Opposition thereto, it is HEREBY ORDERED that the Motion is GRANTED and this Action is HEREBY DISMISSED with PREJUDICE. BY THE COURT: ___________________________________ The Hon. Petrese B. Tucker, Chief Judge Case 2:17-cv-00315-PBT Document 13-1 Filed 03/08/17 Page 1 of 1 UNITED STATES DISTRICT COURT EASTERN DISTRICT OF PENNSYLVANIA -------------------------------------------------------------- x 17-cv-315 (PBT) LAGOS, INC., Plaintiff, - against - DAVID YURMAN IP LLC and DAVID YURMAN ENTERPRISES LLC, Defendants. : : : : : : : : : : : : -------------------------------------------------------------- x MEMORANDUM OF LAW IN SUPPORT OF DEFENDANTS’ MOTION TO DISMISS PLAINTIFF’S COMPLAINT Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 1 of 26 TABLE OF CONTENTS Page TABLE OF AUTHORITIES .......................................................................................................... ii PRELIMINARY STATEMENT .................................................................................................... 1 BACKGROUND ............................................................................................................................ 2 ARGUMENT .................................................................................................................................. 4 I. THE RULE 12(b)(6) STANDARD .................................................................................... 4 II. THE COMPLAINT FAILS TO STATE A CLAIM FOR COPYRIGHT INFRINGEMENT BECAUSE IT DOES NOT ALLEGE PLAINTIFF’S OWNERSHIP OF FEDERALLY-REGISTERED COPYRIGHTS ................................... 5 III. THE COMPLAINT FAILS TO STATE A CLAIM FOR TRADE DRESS INFRINGEMENT BECAUSE IT DOES NOT ARTICULATE THE ELEMENTS OF PLAINTIFF’S ALLEGED TRADE DRESS WITH THE REQUISITE SPECIFICITY ..................................................................................................................... 8 IV. THE COMPLAINT FAILS TO SUFFICIENTLY ALLEGE YURMAN’S INFRINGEMENT OF PLAINTIFF’S CAVIAR MARK................................................. 10 A. Yurman’s Alleged Use of the Term “caviar” Constitutes Descriptive Fair Use ............................................................................................. 11 B. No Reasonable Fact-Finder Could Conclude that Yurman’s Use of “Osetra” Infringes on Plaintiff’s CAVIAR Mark...................................... 14 CONCLUSION ............................................................................................................................. 19 Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 2 of 26 ii TABLE OF AUTHORITIES Cases: Page(s): A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 237 F.3d 198 (3d Cir. 2000).........................................................................................14, 15, 17 Aetrex Worldwide, Inc. v. Burten Distribution, Inc., 2013 WL 6179189 (D.N.J. Nov. 25, 2013) .................................................................15, 17, 18 Am. Beverage Corp. v. Diageo N. Am., Inc., 936 F. Supp. 2d 555 (W.D. Pa. 2013) ..................................................................................9, 10 Ashcroft v. Iqbal, 556 U.S. 662 (2009) ...............................................................................................................4, 5 Bd. of Trs. of Bricklayers & Allied Craftsman Local 6 of N.J. Welfare Fund v. Wettlin Assocs., 237 F.3d 270 (3d Cir. 2001).......................................................................................................4 Bell Atl. Corp. v. Twombly, 550 U.S. 544 (2007) .........................................................................................................4, 5, 17 Bistrian v. Levi, 696 F.3d 352 (3d Cir. 2012).......................................................................................................5 Car-Freshner Corp. v. S.C. Johnson & Son, Inc., 70 F.3d 267 (2d Cir. 1995).......................................................................................................13 Carson Optical, Inc. v. Prym Consumer USA, Inc., 11 F. Supp. 3d 317 (E.D.N.Y. 2014) .........................................................................................9 Checkpoint Sys., Inc. v. Check Point Software Techs., Inc., 269 F.3d 270 (3d Cir. 2001).....................................................................................................10 Clarke v. Joseph H. Dahlkemper, Inc., 468 F. Supp. 441 (W.D. Pa. 1979) ...........................................................................................12 Classic Touch Decor, Inc. v. Michael Aram, Inc., 2015 WL 6442394 (E.D.N.Y. Oct. 23, 2015) ............................................................................9 Dawes-Lloyd v. Publish Am., LLP, 441 Fed. Appx. 956 (3d Cir. 2011) ............................................................................................6 Dawn Donut Co. v. Day, 450 F.2d 332 (10th Cir. 1971) .................................................................................................16 Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 3 of 26 iii Douglas v. Osteen, 560 F. Supp. 2d 362 (E.D. Pa. 2008), aff’d, 317 F. App’x 97 (3d Cir. 2009) ......................................................................3, 11, 14, 15 Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303 (3d Cir. 2014)...................................................................................................8, 9 Fowler v. UPMC Shadyside, 578 F.3d 203 (3d. Cir. 2009)..................................................................................................4, 5 Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159 (3d Cir. 2010).......................................................................................................4 Indep. Prods. Co. v. Tamor Plastics Corp., 1990 WL 79227 (D. Mass. May 22, 1990), aff’d, 930 F.2d 38 (Fed. Cir. 1991) ..........................................................................................16 Inst. for Sci. Info. v. Gordon & Breach, Sci. Publishers, Inc., 931 F.2d 1002 (3d Cir. 1991)...................................................................................................12 Int’l Stamp Art, Inc. v. U.S. Postal Serv., 456 F.3d 1270 (11th Cir. 2006) ...............................................................................................13 Interpace Corp. v. Lapp, Inc., 721 F.2d 460 (3d Cir. 1983)...................................................................................14, 15, 17, 18 Kassa v. Detroit Metro Convention & Visitors Bureau, 150 F. Supp. 3d 831 (E.D. Mich. 2015), aff’d, -- F. App’x --, 2017 WL 117534 (6th Cir. Jan. 12, 2017) ..............................................12 Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199 (3d Cir. 2005)...................................................................................................5, 7 Kinbook, LLC v. Microsoft Corp., 866 F. Supp. 2d 453 (E.D. Pa. 2012), aff’d, 490 F. App’x 491 (3d Cir. 2013) ..............................................................................15, 16 Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373 (2d Cir. 1997).......................................................................................................8 Marilyn Miglin Model Makeup, Inc. v. Jovan, Inc., 223 U.S.P.Q. 634, 1983 WL 52354 (N.D. Ill. 1983) ...............................................................13 Markantone v. Podiatric Billing Specialists, LLC, 2014 WL 2605361 (W.D. Pa. Jun. 9, 2014), aff’d, 599 F. App’x 459 (3d Cir. 2015) ......................................................................................6 Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 4 of 26 iv Marvel Enters., Inc. v. NCSoft Corp., 2005 WL 878090 (C.D. Cal. Mar. 9, 2005) .............................................................................16 McLaren v. Chico’s FAS, Inc., 2010 WL 4615772 (S.D.N.Y. Nov. 9, 2010) .............................................................................7 O.W.A., Inc. v. Gump’s Corp., 2014 WL 12235191 (N.D. Ga. Oct. 9, 2014) ............................................................................7 Olander Enters., Inc. v. Spencer Gifts, LLC, 812 F. Supp. 2d 1070 (C.D. Cal. 2011) .....................................................................................7 Packman v. Chicago Tribune Co., 267 F.3d 628 (7th Cir. 2001) ...................................................................................................13 Papasan v. Allain, 478 U.S. 265 (1986) ...................................................................................................................5 Patrick Collins, Inc. v. Does 1-26, 843 F. Supp. 2d 565 (E.D. Pa. 2011) .........................................................................................6 Pittsburgh v. W. Penn Power Co., 147 F.3d 256 (3d Cir. 1998).......................................................................................................3 Qwest Commc’ns Int’l v. Cyber–Quest, Inc., 124 F. Supp. 2d 297 (M.D. Pa. 2000) ................................................................................11, 15 Sabinsa Corp. v. Creative Compounds, LLC, 609 F.3d 175 (3d Cir. 2010) ...........................................................................................15 Sunmark, Inc. v. Ocean Spray Cranberries, Inc., 64 F.3d 1055 (7th Cir. 1995) ...................................................................................................12 W.L. Gore & Assocs. v. Johnson & Johnson, 882 F. Supp. 1454 (D. Del. 1995), aff’d, 77 F.3d 465 (3d Cir. 1996) .............................................................................................15 Wonder Labs, Inc. v. Procter & Gamble Co., 728 F. Supp. 1058 (S.D.N.Y. 1990)...................................................................................12, 13 Zany Toys, LLC v. Pearl Enters., LLC, 2014 WL 2168415 (D.N.J. May 23, 2014) ................................................................................6 Zaslow v. Coleman, 103 F. Supp. 3d 657 (E.D. Pa. 2015) .....................................................................................5, 6 Statutes, Rules, And Regulations: 15 U.S.C. § 1115(b)(4) ..................................................................................................................11 Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 5 of 26 v 17 U.S.C. §§ 101 et seq....................................................................................................................6 17 U.S.C. § 408(f) ............................................................................................................................5 17 U.S.C. § 411(a) ...........................................................................................................................5 37 C.F.R. § 202.3(b)(4) ....................................................................................................................7 Fed. R. Civ. P. 12(b)(6).......................................................................................................... passim Other Authorities: 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 8:3 (4th ed. 2014) .........................................................................................................................8, 9 2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 11:45 (4th ed. 2014) ........................................................................................................12, 13 U.S. Copyright Office, and U.S. Copyright Office, Compendium II: Compendium of Copyright Office Practices § 607.01 (1984) ..........................................................................7 U.S. Copyright Office, Compendium III: Compendium of Copyright Office Practices Glossary, at 19 (2014) ................................................................................................7 U.S. Copyright Office, Compendium III: Compendium of Copyright Office Practices § 1103 (2014) .............................................................................................................7 U.S. Copyright Office, Compendium III: Compendium of Copyright Office Practices § 1402.3 (2014) ..........................................................................................................7 Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 6 of 26 Defendants David Yurman IP LLC and David Yurman Enterprises LLC (“Defendants” or “Yurman”) respectfully submit this memorandum of law in support of their motion to dismiss the Complaint pursuant to Federal Rule of Civil Procedure 12(b)(6). PRELIMINARY STATEMENT This case concerns two jewelry designers offering two distinct jewelry lines under two distinct collection names. Plaintiff Lagos, Inc. (“Plaintiff” or “Lagos”) brings this action in an attempt to effectively shut down Yurman’s OSETRA collection, notwithstanding fundamental differences in the names and designs of Yurman’s collection as compared to any of Plaintiff’s collections. Specifically, Plaintiff’s various claims are based on Yurman’s alleged infringement of Plaintiff’s “CAVIAR line of jewelry by promoting blatant copies of Lagos’ trade dress and copyrighted designs, as well as misusing Lagos’ famous CAVIAR mark.” Compl. ¶ 1. However, as is apparent from even a cursory reading of the Complaint, Plaintiff is attempting to assert trademark and design rights in its “Caviar” line beyond any that may conceivably exist. Further, as discussed below, beyond its conclusory assertions, the Complaint is devoid of allegations sufficient to even state claims of copyright, trade dress and trademark infringement. Nowhere does Plaintiff allege that it owns valid copyright registrations covering the designs at issue — nor could it, as Plaintiff owns no such registrations. Nor does Plaintiff, in support of its claim for trade dress infringement, anywhere allege the requisite elements of its purported trade dress. And, nowhere does Plaintiff assert that the term “Osetra,” the allegedly infringing name of Yurman’s collection, is remotely similar to Plaintiff’s alleged CAVIAR word mark, much less that Yurman is using the term “caviar” as a trademark, both fatal flaws in its trademark infringement claim. Given these deficiencies, Plaintiff’s Complaint should be dismissed in its entirety with prejudice. Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 7 of 26 2 BACKGROUND The following facts alleged in the Complaint are assumed to be true for the purposes of Yurman’s motion to dismiss. Yurman does not waive its right to contest any of these or other factual allegations in the Complaint. Yurman is a well-established, high-end jewelry brand that designs, manufactures, markets, advertises and sells DAVID YURMAN brand jewelry, and operates DAVID YURMAN retail stores. See Compl. ¶¶ 7, 32-33. Yurman’s jewelry lines are sold at stores throughout the United States, including at Saks Fifth Avenue, Neiman Marcus, and Bloomingdales, and around the world. Id. at ¶¶ 32-33. Yurman’s jewelry pieces — which are made of materials such as 18-carat gold, sterling silver, hematine, black spinel, green onyx, amethyst, blue moonstone, and other gemstones — regularly retail for prices upwards of $1000, and some pieces are priced well above that. See Compl. ¶ 41; id., Exs. 4, 6. In or around November 2014, Yurman launched its OSETRA collection of jewelry designs. Id. ¶ 40. Yurman already had numerous other well-known “collections,” such as its Albion, Belmont, Bijoux, Cable, and Chatelaine lines, to name a few — which, like the OSETRA line, are sold under the DAVID YURMAN house mark. Id., Ex. 4. The OSETRA collection consists of approximately 17 pieces (id. ¶ 40; Ex. 4), all of which feature “brilliant gemstones set in sterling silver.” Id. Advertisements for Yurman’s OSETRA collection include references, in the text of the advertising copy, to “Osetra” as a “type of caviar,” the latter term appearing only in lower-case letters. Id. Notwithstanding Plaintiff’s prior registration of the mark CAVIAR for jewelry, on November 3, 2015, Yurman obtained a U.S. trademark registration for the word mark OSETRA (Reg. No. 4,847,481), claiming a first use date of Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 8 of 26 3 November 10, 2014, and covering the following goods in International Class 14: “Fine jewelry, precious metals, and precious stones.”1 See Ex. A. Plaintiff Lagos is also in the jewelry business, selling jewelry at stores throughout the United States, including its flagship store in Philadelphia. Compl. ¶ 14. The average price of Lagos’ individual jewelry pieces is lower than that of Yurman’s. See Compl. Exs. 3-4. The principals of Plaintiff and Yurman have been “personal acquaintances for many years.” Compl. ¶ 54. Indeed, when Plaintiff applied to register the CAVIAR trademark at issue in 1990, Yurman opposed that application. The parties then resolved their dispute in January 1991, by written agreement whereby Yurman agreed to assign “any and all rights it may have in the CAVIAR trademark” to Plaintiff. Compl. ¶¶ 35-36; id., Ex. 5. Notably, Yurman did not therein agree never to use the term “caviar” in a non-trademark manner, that is, descriptively or generically. Yet now Plaintiff accuses Yurman of infringing the very trademark rights Yurman voluntarily agreed to assign, and is attempting to prevent Yurman’s legitimate use of the term in its ordinary English-language sense. Thereafter, on July 28, 1992, Plaintiff obtained a U.S. trademark registration (Reg. No. 1,703,128) for CAVIAR for “jewelry, namely, rings, pins, bracelets, earrings, necklaces and watches.” Id. ¶ 17. Plaintiff further alleges that its CAVIAR line of jewelry is defined by a “textured fish-egg-like beading” design where the “eggs” are placed “in offset rows.” Id. ¶¶ 24- 25. Those alleged designs are still the subject of pending copyright applications, which appear to have been filed on January 17, 2017. See id. ¶¶ 18, 23; Exs. 2A, 2B. Plaintiffs followed with the present lawsuit days later, on January 20, 2017. 1 On a motion to dismiss, courts may take judicial notice of documents that are “matters of public record,” as is the case with Yurman’s trademark registration for OSETRA. See, e.g., Douglas v. Osteen, 560 F. Supp. 2d 362, 366 (E.D. Pa. 2008), aff’d, 317 F. App’x 97 (3d Cir. 2009) (citing Pittsburgh v. W. Penn Power Co., 147 F.3d 256, 259 (3d Cir. 1998)). Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 9 of 26 4 ARGUMENT As discussed below, Plaintiff’s claims of copyright infringement (Count I), trade dress infringement (Count II), and federal trademark infringement (Count III) fail as a matter of law under Federal Rule of Civil Procedure 12(b)(6), and must be dismissed. For the same reasons, its remaining Lanham Act and state law claims (Counts IV–VIII) should be dismissed as well. I. THE RULE 12(b)(6) STANDARD When considering a Rule 12(b)(6) motion, the court must accept all well-pleaded factual allegations as true, and draw all reasonable inferences in favor of the non-moving party. Bd. of Trs. of Bricklayers & Allied Craftsman Local 6 of N.J. Welfare Fund v. Wettlin Assocs., 237 F.3d 270, 272 (3d Cir. 2001). “To survive a motion to dismiss, a complaint must contain sufficient factual matter, accepted as true, to ‘state a claim to relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (quoting Bell Atl. Corp. v. Twombly, 550 U.S. 544, 570 (2007)). A plaintiff’s obligation to provide the grounds for its entitlement to relief “requires more than labels and conclusions, and a formulaic recitation of the elements of a cause of action.” Twombly, 550 U.S. at 555. The factual allegations in a complaint must be sufficient to raise the plaintiff’s right to relief above the “speculative level” (id.), that is, it is not sufficient to allege “mere elements of a cause of action; instead a complaint must allege facts suggestive of [the proscribed] conduct.” Great W. Mining & Mineral Co. v. Fox Rothschild LLP, 615 F.3d 159, 177 (3d Cir. 2010) (citation and internal quotation marks omitted). The Third Circuit employs a two-part analysis when considering a Rule 12(b)(6) motion. Fowler v. UPMC Shadyside, 578 F.3d 203, 210-11 (3d. Cir. 2009). First, the factual and legal elements of the claim are separated. Id. at 210. The well-pleaded factual allegations are accepted as true, and any legal conclusions are disregarded. Id. at 210-11. Second, the court Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 10 of 26 5 must make a common sense determination whether the facts in the complaint state a plausible claim for relief. Id. at 211. In making this determination, courts must reject legal conclusions couched as factual allegations. Twombly, 550 U.S. at 555 (citing Papasan v. Allain, 478 U.S. 265, 286 (1986)). In other words, “‘a complaint [that] pleads facts that are merely consistent with a defendant’s liability . . . stops short of the line between possibility and plausibility of entitlement to relief,’” and must be dismissed. Bistrian v. Levi, 696 F.3d 352, 365 (3d Cir. 2012) (quoting Iqbal, 556 U.S. at 678). II. THE COMPLAINT FAILS TO STATE A CLAIM FOR COPYRIGHT INFRINGEMENT BECAUSE IT DOES NOT ALLEGE PLAINTIFF’S OWNERSHIP OF FEDERALLY-REGISTERED COPYRIGHTS As a matter of law, Plaintiff has failed to state a claim for copyright infringement, because the Complaint does not allege ownership of a valid copyright — one of two required elements to maintain a prima facie copyright claim. See, e.g., Kay Berry, Inc. v. Taylor Gifts, Inc., 421 F.3d 199, 204-05 (3d Cir. 2005) (prima facie copyright infringement claim requires pleading (1) ownership of a valid copyright, and (2) unauthorized copying of original elements of the copyrighted work). The Copyright Act requires registration of a work before an action for infringement can be maintained. See 17 U.S.C. § 411(a) (“no civil action for infringement of the copyright of any United States work shall be instituted until preregistration2 or registration of the copyright claim has been made in accordance with this title”). In this Circuit, a pending application for copyright registration is insufficient as a matter of law to satisfy the “ownership” element of a claim for copyright infringement. See, e.g., Zaslow v. Coleman, 103 F. Supp. 3d 657, 663 (E.D. Pa. 2015) 2 “Preregistration” does not encompass a pending application for copyright registration . Preregistration is a procedure designed to protect certain classes of unpublished works being prepared for commercial distribution that the Register of Copyrights has determined have a history of infringement prior to authorized commercial distribution. 17 U.S.C. § 408(f). Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 11 of 26 6 ( “plaintiff could not establish a prima facie case of [copyright] infringement because it did not hold a registered copyright”) (emphasis in original) (citing Dawes-Lloyd v. Publish Am., LLP, 441 Fed. Appx. 956, 957 (3d Cir. 2011). Rather, a complaint asserting copyright infringement “‘must allege . . . registration of the works in question with the Copyright Office in accordance with 17 U.S.C. §§ 101 et seq.,’” typically by “attaching to a complaint a copy of the Copyright Office registration.” Zaslow, 103 F. Supp. 3d at 662 (emphasis added and citation omitted); see Patrick Collins, Inc. v. Does 1-26, 843 F. Supp. 2d 565, 568-70 (E.D. Pa. 2011) (dismissing copyright infringement claim and explicitly adopting a “registration approach” to copyright infringement lawsuits); see also Markantone v. Podiatric Billing Specialists, LLC, 2014 WL 2605361, at *3 (W.D. Pa. Jun. 9, 2014) (dismissing copyright infringement complaint, in part due to lack of copyright registration), aff’d, 599 App’x 459 (3d Cir. 2105); Zany Toys, LLC v. Pearl Enters., LLC, 2014 WL 2168415, at *10-11 (D.N.J. May 23, 2014) (dismissing copyright infringement claim where plaintiff merely filed an application to register a copyright but did not own a registration). Here, Plaintiff fails to allege “‘registration of the [designs] in question’”, because it cannot. See Zaslow, 103 F. Supp. 3d at 662 (emphasis added and citation omitted). Plaintiff merely asserts that it has filed two applications with the U.S. Copyright Office for certain purported collections of jewelry designs. See Compl. ¶ 23. Nowhere does it allege that those applications have been granted, as is required to establish ownership of a valid copyright and state a prima facie claim for copyright infringement in this Circuit. Nor can this Court presume — as Plaintiff apparently does — that the U.S. Copyright Office will issue registrations for Plaintiff’s purported “collections.” In this regard, while Plaintiff’s “collection” applications each purport to encompass several individual jewelry Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 12 of 26 7 designs, notably they do not indicate that the designs were created or published as a single unit, as the Copyright Office requires. See Compl. ¶ 23; Ex. 2 (failing to allege that individual jewelry designs intended to be covered by the “Caviar Forever” Copyright Application No. 1- 4276663931, or the “Black Caviar” Copyright Application No. 1-410829061, were published at the same time).3 As Plaintiff’s copyright applications were purportedly filed on January 17, 2017 on a “Special Handling” basis (see id.), but have not yet issued, it can only be assumed that the Copyright Office has raised issues as to the registrability of Plaintiff’s designs.4 Given this defect in Plaintiff’s copyright applications, there is no basis to presume it will ever obtain registrations for the collections at issue. In any event, the mere filing of an application for copyright registration is insufficient, as a matter of law, to state a claim under the Copyright Act, and therefore Count I of the Complaint should be dismissed. 3 The U.S. Copyright Office allows copyright claimants to register a published collection of works “on a single application and upon payment of a single registration fee” only when the contents of the collection are “recognizable as self-contained works [and] are included in a single unit of publication.” 37 C.F.R. § 202.3(b)(4); see, e.g., Kay Berry, 421 F.3d at 206 n.2 (“‘only those individual works first published in the single work will be covered by the single work registration’”) (emphasis in original) (citing amicus brief from U.S. Copyright Office, and U.S. Copyright Office, Compendium II: Compendium of Copyright Office Practices § 607.01 at 600- 11 (1984)). Moreover, courts uniformly enforce this regulation. See, e.g., Olander Enters., Inc. v. Spencer Gifts, LLC, 812 F. Supp. 2d 1070, 1076 (C.D. Cal. 2011) (“only those individual works ‘first published in a single unit of publication’ will be covered by the single work registration”) (emphasis in original) (quotation and citation omitted); O.W.A., Inc. v. Gump’s Corp., 2014 WL 12235191, at *3-4 (N.D. Ga. Oct. 9, 2014) (same); McLaren v. Chico’s FAS, Inc., 2010 WL 4615772, at *3 (S.D.N.Y. Nov. 9, 2010) (same). The most recent version of the Compendium defines the term “[u]nit of publication” as: “[a] registration accommodation by the U.S. Copyright Office for registering multiple works with one application, one filing fee, and one set of deposit copies where the works are physically bundled together by the claimant for distribution to the public as a single, integrated unit and all the works are first published in that integrated unit.” U.S. Copyright Office, Compendium III: Compendium of Copyright Office Practices, at Glossary pg. 19 (2014) (emphasis added); see also id. §§ 1103, 1402.3. 4 See Exhibit B, attached hereto, a reproduction from the Copyright Office website, reflecting that the only copyright registration ever issued to Lagos, Inc. is now cancelled. See also Exhibit C, attached hereto, a Copyright Office “Special Handling” Circular, indicating that “every attempt is made to process the claim [] within five working days.” It has now been seven weeks since Plaintiff allegedly filed its “Special Handling” copyright applications. Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 13 of 26 8 III. THE COMPLAINT FAILS TO STATE A CLAIM FOR TRADE DRESS INFRINGEMENT BECAUSE IT DOES NOT ARTICULATE THE ELEMENTS OF PLAINTIFF’S ALLEGED TRADE DRESS WITH THE REQUISITE SPECIFICITY Plaintiff also fails to state a claim for trade dress infringement as a matter of law, because the Complaint does not allege the elements of its supposed trade dress with the requisite specificity. Rather, Plaintiff’s entire description of its trade dress is that it “includes uniform-size fish-egg-like beading [and also] includes placing the ‘eggs’ in offset rows.” Compl. ¶ 25. This does not come close to meeting the pleading requirements of this Circuit for trade dress claims, and accordingly Count II of the Complaint must be dismissed as well. It is fundamental Third Circuit law that, even at the pleading stage, a trade dress claimant must “‘articulat[e] the specific elements which comprise its distinct [trade] dress.’” See Fair Wind Sailing, Inc. v. Dempster, 764 F.3d 303, 309-10 (3d Cir. 2014) (granting motion to dismiss trade dress claim based on defendant’s alleged imitation of plaintiff’s website) (quoting Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 381 (2d Cir. 1997) (holding that definition of trade dress in outdoor institutional furniture that consisted of a massive design which appears to “float,” is “too abstract to qualify as trade dress”)). This specificity requirement “allows the district court to ensure that the claim is ‘not pitched at an improper level of generality, i.e., claimant [does not] seek [ ] protection for an unprotectable style, theme or idea.’” Id. (citation omitted); see also 1 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 8:3 (4th ed. 2014) (“vague and indefinite definition of trade dress would present unacceptable results,” including that “plaintiff’s inability to articulate a precise definition may indicate that the alleged ‘trade dress’ is overbroad in that it is merely an idea or a generic concept”) (footnote omitted). Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 14 of 26 9 The case of American Beverage Corp. v. Diageo North America, Inc., 936 F. Supp. 2d 555 (W.D. Pa. 2013), is instructive here. In that case, the court held that “[t]o effectively assert a claim for trade dress infringement, a plaintiff must provide ‘a precise expression of the character and scope of the claimed trade dress’ that describes the trade dress that it seeks to protect.” Id. at 595 (citation omitted). Accordingly, the court found that only trade dress alleged at the following level of detail was sufficient: In addition to its hourglass shape, ABC’s trade dress includes three horizontal labeling partitions, with the top- most portion consisting of a perforated tear-away flap with the language “FREEZE AND ENJOY,” the middle portion containing the Daily’s brand name, a colorful depiction of the particular frozen cocktail flavor and corresponding fruit imagery, and the bottom portion identifying the specific product and key information thereof. Id. at 580, 595, 616; see also, e.g., Classic Touch Decor, Inc. v. Michael Aram, Inc., 2015 WL 6442394, at *4-5 (E.D.N.Y. Oct. 23, 2015) (granting motion to dismiss trade dress counterclaim where alleged trade dress was “so broad that it would include any tableware item made of hammered nickelplate or polished black granite”); Carson Optical, Inc. v. Prym Consumer USA, Inc., 11 F. Supp. 3d 317, 347 (E.D.N.Y. 2014) (granting motion to dismiss trade dress claim where alleged trade dress of optical magnifier — consisting of “light-dark color scheme and the general layout and spatial relationship of various elements appearing on the handle of the magnifier (the size, placement, and oval-shape of the label and the positioning of a smaller magnifying lens) and a distinctive ledge on the rim of the magnifying lens” — was overly general). Here, Plaintiff’s alleged “trade dress” constitutes just the type of “vague and indefinite” description that risks “overbroad [protection for] a generic concept.” McCarthy, § 8:3. Far from the specificity required by Fair Wind Sailing, Plaintiff’s pleading merely states that its CAVIAR Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 15 of 26 10 Trade Dress “includes uniform-size fish-egg-like beading [and also] includes placing the ‘eggs’ in offset rows.” Compl. ¶ 25. If this description constituted actionable trade dress, Plaintiff could be asserting trade dress claims against innumerable other designs, which is precisely why courts require a trade dress claim to be stated with “precis[ion].” Am. Bev., 936 F. Supp. 2d at 595. Accordingly, Count II of Plaintiff’s Complaint must be dismissed as a matter of law. IV. THE COMPLAINT FAILS TO SUFFICIENTLY ALLEGE YURMAN’S INFRINGEMENT OF PLAINTIFF’S CAVIAR MARK Plaintiff’s remaining claims for trademark infringement and unfair competition with respect to its CAVIAR mark, all premised on the same allegations, are similarly flawed. To state such a claim, a plaintiff must allege that: (1) it owns a mark; (2) the mark is valid and legally protectable; and (3) the defendant’s use of the mark to identify goods or services is likely to create confusion. See, e.g., Checkpoint Sys., Inc. v. Check Point Software Techs., Inc., 269 F.3d 270, 279 (3d Cir. 2001). Plaintiff has failed to sufficiently allege the third element — Yurman’s use of a term that is confusingly similar to its CAVIAR mark — for at least two reasons. First, to the extent Plaintiff is complaining that Yurman’s use of the term “caviar” is an infringement of its CAVIAR mark, the use it complains of constitutes descriptive fair use as a matter of law. Cf. Compl. ¶ 39 (“Yurman recently began using the words ‘Osetra’ (one of the main types of caviar) and ‘caviar’” in connection with Yurman’s new jewelry line”) (emphasis added). Second, to the extent Plaintiff claims that Yurman’s use of the term “Osetra” is likely to cause confusion, no reasonable fact-finder could conclude that such term infringes Plaintiff’s CAVIAR mark, given their complete dissimilarity. Cf. Compl. ¶ 45 (“Osetra has the same or substantially similar meaning as ‘caviar’ because both terms identify fish eggs (or salted roe of sturgeon or other large fish) or a type of fish roe”); ¶ 69 (alleging consumer confusion based on Yurman’s “use of the CAVIAR mark and a synonym for caviar—osetra”). As set forth below, in Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 16 of 26 11 circumstances such as these where “‘no reasonable factfinder could find a likelihood of confusion on any set of facts that plaintiff could prove,’” courts in this Circuit dismiss complaints for trademark infringement, even at the pleading stage. See, e.g., Douglas v. Osteen, 560 F. Supp. 2d 362, 368 (E.D. Pa. 2008) (Tucker, C.J.), aff’d, 317 F. App’x 97 (3d Cir. 2009) (quoting Qwest Commc’ns Int’l v. Cyber–Quest, Inc., 124 F. Supp. 2d 297, 304 (M.D. Pa. 2000)).5 A. Yurman’s Alleged Use of the Term “caviar” Constitutes Descriptive Fair Use The Complaint fails to allege that Yurman has made any use of the term “caviar” other than in a descriptive manner. Rather, on the face of the Complaint, Yurman’s use of the term “caviar” is a descriptive reference to its collection mark OSETRA. Indeed, the Complaint reproduces the below example of such descriptive use by Yurman on its website: See Compl. ¶ 40. Clearly, such use of the word “caviar” is not as a trademark, but only to describe a characteristic of Yurman’s OSETRA collection. Under the Lanham Act, use of a term or word cannot be infringing as a matter of law when such use is “otherwise than as a mark, [and] is descriptive of and used fairly and in good faith only to describe the goods or services of such party . . . .” 15 U.S.C. § 1115(b)(4). Indeed, 5All of Plaintiff’s Lanham Act and state law claims alleging infringement, unfair competition or dilution are based on the same set of (insufficiently) pleaded facts, and require the same basic legal elements. Thus, for the same reasons that Plaintiff’s claims under Sections 32(1), 43(a) and 43(c) of the Lanham Act cannot survive, Yurman’s motion to dismiss should be granted with respect to Plaintiff’s state and common law claims for trademark infringement, unfair competition and dilution. Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 17 of 26 12 when a party — as is the case with Plaintiff here — chooses a mark that has a descriptive meaning, “the trademark owner must live with the result that everyone else in the marketplace remains free to use the term in its original ‘primary’ or descriptive sense.” 2 J. Thomas McCarthy, McCarthy on Trademarks and Unfair Competition § 11:45 (4th ed. 2014). In order to establish descriptive fair use in the Third Circuit, a defendant must show that he or she (1) used the term merely to describe their product; (2) did not use the term as a trademark; (3) used the term in good faith; and (4) plaintiff’s mark clearly has a descriptive meaning. See Inst. for Sci. Info. v. Gordon & Breach, Sci. Publishers, Inc., 931 F.2d 1002, 1008 (3d Cir. 1991). In these circumstances, trademark infringement claims are regularly rejected based on descriptive fair use, both in this Circuit and elsewhere. For instance, in Clarke v. Joseph H. Dahlkemper, Inc., the plaintiff owned a trademark for “SAFE–T–BALL” for games, and the defendants advertised a similar game named “FLINGER CLINGERS” using the phrase “the safety ball target game” in smaller print. 468 F. Supp. 441 (W.D. Pa. 1979). The court held that the defendants’ use of the words “safety ball” was descriptive and fair. See also Sunmark, Inc. v. Ocean Spray Cranberries, Inc., 64 F.3d 1055, 1058 (7th Cir. 1995) (affirming denial of motion for preliminary injunction where defendant’s use of words “sweet-tart” in advertising was only to describe the taste of cranberry juice, and thus did not infringe plaintiff’s SWEET TARTS mark); Kassa v. Detroit Metro Convention & Visitors Bureau, 150 F. Supp. 3d 831, 840 (E.D. Mich. 2015) (granting motion to dismiss trademark infringement claim where defendant’s use of “Welcome to the D” slogan for a World Series game in Detroit was classic fair use of plaintiff’s registration of the same slogan used to promote online talk show), aff’d, -- F. App’x --, 2017 WL 117534 (6th Cir. Jan. 12, 2017); Wonder Labs, Inc. v. Procter & Gamble Co., 728 F. Supp. 1058, 1061 n.4 (S.D.N.Y. 1990) (defendant’s use of phrase “dentist’s choice” in Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 18 of 26 13 advertising and promotion of toothpaste was a fair use of plaintiff’s incontestable registration for “DENTISTS CHOICE” for toothbrushes); Marilyn Miglin Model Makeup, Inc. v. Jovan, Inc., 223 U.S.P.Q. 634, 1983 WL 52354, at *1-2 (N.D. Ill. 1983) (use of word “pheromone” to advertise contents of perfume was descriptive fair use). Here, Yurman’s alleged use of the word “caviar” was indisputably descriptive. First, the Complaint itself makes clear that Yurman used the word “caviar” only to describe Yurman’s own product. See, e.g., Compl. ¶ 40 (alleging that “[b]y fall 2016, Yurman had launched a full- scale campaign promoting its ‘new Osetra collection’” in advertisements indicating that the collection was “[i]nspired by caviar of the same name”). Second, the Complaint is devoid of any allegation that Yurman used the word “caviar” as a mark. Rather, Plaintiff alleges only that Yurman used “caviar” with a lower case “c” in connection with Yurman’s OSETRA collection. Compare id. ¶¶ 39-41 (allegations of Yurman’s use of word “caviar” to describe OSETRA line) with ¶¶ 23, 41, Ex. 3 (showing Plaintiff’s use of CAVIAR as a mark in the context of its CAVIAR collections). Finally, the Complaint itself makes clear that the term “Caviar,” though registered by Plaintiff as a mark, clearly has a descriptive meaning. See Compl. ¶¶ 15, 45 (describing Lagos’ CAVIAR collection as consisting of “fish-egg-like beading” and the word “caviar” as “identify[ing] fish eggs”). Therefore, Lagos “must live with the result that everyone else in the marketplace remains free to use the term in its original ‘primary’ or descriptive sense,” just as Yurman has done here. See McCarthy, § 11:45.6 6 Moreover, Plaintiff’s conclusory allegations that Yurman acted in bad faith simply because it “had actual or constructive notice” of Plaintiff’s CAVIAR mark, are insufficient. To the contrary, it is well established that mere knowledge of the plaintiff’s mark does not negate “good faith.” See, e.g., Int’l Stamp Art, Inc. v. U.S. Postal Serv., 456 F.3d 1270 (11th Cir. 2006); Packman v. Chicago Tribune Co., 267 F.3d 628 (7th Cir. 2001); Car-Freshner Corp. v. S.C. Johnson & Son, Inc., 70 F.3d 267 (2d Cir. 1995). Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 19 of 26 14 B. No Reasonable Fact-Finder Could Conclude that Yurman’s Use of “Osetra” Infringes on Plaintiff’s CAVIAR Mark Any claim for infringement of Plaintiff’s CAVIAR mark arising out of Yurman’s use of the term “Osetra” similarly fails, as no reasonable fact-finder could conclude that “Osetra” is likely to be confused with “Caviar.” Under the Lanham Act, “trademark infringement is defined as ‘use of a mark so similar to that of a prior user as to be likely to cause confusion, or to cause mistake, or to deceive.’” Douglas, 560 F. Supp. 2d at 368 (citation omitted) (affirming on appeal district court’s dismissal of plaintiff’s copyright and trademark claims on Rule 12(b)(6) motion to dismiss). The Third Circuit uses ten non-exhaustive factors as “tools to guide a qualitative decision” of whether likelihood of confusion exists. A & H Sportswear, Inc. v. Victoria’s Secret Stores, Inc., 237 F.3d 198, 215-16 (3d Cir. 2000) (citing Interpace Corp. v. Lapp, Inc., 721 F.2d 460, 463 (3d Cir. 1983)).7 Conversely, a trademark infringement claim must fail — including on a motion to dismiss — when a court determines, applying the Lapp factors, that “‘no reasonable factfinder could find a likelihood of confusion on any set of facts that plaintiff could prove.’” E.g., Douglas, 560 F. Supp. 2d at 368 (granting 12(b)(6) motion in part because plaintiffs’ claimed trademark rights in the phrase “eyes of faith” as a book title was incapable of distinguishing 7 Those factors are: “(1) the degree of similarity between the owner’s mark and the alleged infringing mark; (2) the strength of the owner’s mark; (3) the price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase; (4) the length of time the defendant has used the mark without evidence of actual confusion arising; (5) the intent of the defendant in adopting the mark; (6) evidence of actual confusion; (7) whether the goods, competing or not competing, are marketed through the same channels of trade and advertised through the same media; (8) the extent to which the targets of the parties’ sales efforts are the same; (9) the relationship of the goods in the minds of the consumers, whether because of the near-identity of the products, the similarity of function, or other factors; and (10) other factors suggesting that the consuming public might expect the prior owner to manufacture both products, or expect the prior owner to manufacture a product in the defendant’s market, or expect that the prior owner is likely to expand into the defendant’s market.” Id. at 215. Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 20 of 26 15 plaintiff’s product from others, where at least 50 other books contained that phrase in their title) (citation omitted); cf. Qwest Commc’ns Int’l, 124 F. Supp. 2d at 304 (recognizing that Rule 12(b)(6) motion must be granted if “no reasonable factfinder could find a likelihood of confusion”). That is the case here, for the following reasons. First, courts in this Circuit uniformly recognize that the “single most probative factor in determining whether there is likelihood of confusion is [the first Lapp factor —] similarity of the marks to one another.” See, e.g., Aetrex Worldwide, Inc. v. Burten Distribution, Inc., 2013 WL 6179189, at *4 (D.N.J. Nov. 25, 2013) (citing Sabinsa Corp. v. Creative Compounds, LLC, 609 F.3d 175, 183 (3d Cir. 2010)). This factor requires an examination into the “sight, sound, and meaning” of the competing marks. However, dissimilarities in sound and appearance may completely overshadow any alleged similarity in meaning, to the point where “no reasonable factfinder could find a likelihood of confusion on any set of facts that plaintiff could prove.” See, e.g., A & H Sportswear, 237 F.3d at 217 (affirming that MIRACLESUIT and THE MIRACLE BRA — both for swimwear — were not confusingly similar, where the “meaning of the two marks was [only] slightly different”); W.L. Gore & Assocs. v. Johnson & Johnson, 882 F. Supp. 1454, 1458-59 (D. Del. 1995) (finding that plaintiff was unlikely to succeed on the merits of its trademark infringement claim where it argued that defendant’s “Easy Glide” mark was confusingly similar to its own mark “Glide,” both for dental floss, in part because although “marks have a similar meaning, . . . they do not have a similar appearance” and “aural similarities are limited”), aff’d, 77 F.3d 465 (3d Cir. 1996); see also Kinbook, LLC v. Microsoft Corp., 866 F. Supp. 2d 453, 463-64 (E.D. Pa. 2012) (rejecting plaintiff’s argument that “Kinect” was confusingly similar to “Kinbox,” even where both were used in connection with software, Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 21 of 26 16 and defendant often used its “Kinect” mark together with word “box”), aff’d, 490 F. App’x 491 (3d Cir. 2013). Courts in other circuits are in agreement, finding that, particularly where a party chooses a mark with descriptive qualities (like CAVIAR here), any similarity with the accused mark in meaning cannot overcome obvious dissimilarities in sound and appearance as a matter of law. The case of Independent Products Co. v. Tamor Plastics Corp., 1990 WL 79227, at *4 (D. Mass. May 22, 1990), aff’d, 930 F.2d 38 (Fed. Cir. 1991), is particularly instructive. In Tamor, the court dismissed a trademark infringement claim based on the competing marks SWIVELER (plaintiff) and TWISTER (defendant), both for hangers, finding that the marks were “considerably different,” the only similarity being “in the purely descriptive aspect.” Id. Further, the court explained, any similarity between the marks SWIVELER and TWISTER was “an inherent handicap in plaintiff’s choice of name, and not to be used as a sword.” Id. Therefore, the “fact that plaintiff was permitted the special benefit of a descriptive term, and, to an extent, to encroach upon the rights of the general public should not, of itself, be used to deprive others of sharing such a benefit in the absence of similar wording, appearance, or sound.” Id. See also Dawn Donut Co. v. Day, 450 F.2d 332, 333 (10th Cir. 1971) (“DAYLIGHT DONUTS” not confusingly similar to plaintiff’s mark “DAWN DONUT” even though words “dawn” and “daylight” may convey same concept of early morning hours); Marvel Enters., Inc. v. NCSoft Corp., 2005 WL 878090, at *4 (C.D. Cal. Mar. 9, 2005) (granting Rule 12(b)(6) motion to dismiss Lanham Act infringement claim where there was no dispute that “the word ‘Statesman’ is unlikely to cause confusion with the words ‘Captain America’”) (emphasis in original). Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 22 of 26 17 As noted above, the importance of the first Lapp factor was key to the court’s determination in Aetrex, where it denied a plaintiff’s motion to add a new claim for trademark infringement under the same Twombly standard that governs a motion to dismiss, because the plaintiff “failed to allege sufficient facts that would allow a reasonable person to find a likelihood of confusion” between the products at issue. Aetrex, 2013 WL 6179189, at *2-3, *5. In particular, the court noted that plaintiff’s proposed claim asserted that defendant’s use of the phrase “ONE STEP” in marketing materials infringed plaintiff’s “iStep” mark, where both parties were in the business of orthotics. Id. at *1. In denying plaintiff’s motion, the court considered the Lapp factors and held that “no reasonable factfinder . . . could find a likelihood of confusion” because the marks were not similar, particularly where defendant’s use of the word “Step” was part of a larger phrase. Id. at *4-5. Here too, “no reasonable factfinder could find a likelihood of confusion” between the distinctly different terms “Caviar” and “Osetra.” The two terms do not look alike; they do not sound alike; nor do they have the same meaning. Because “Caviar” and “Osetra” are so completely dissimilar in sight and sound, the first and most important Lapp factor falls entirely in Yurman’s favor. And, even accepting Plaintiff’s allegation that “Osetra” and “Caviar” have “the same or substantially similar meaning” (Compl. ¶ 45) — which, as discussed below, is not the case — when two marks are otherwise so distinctly different in sound and appearance, even a slight difference in meaning is enough to make them unlikely to cause confusion. See A & H Sportswear, 237 F.3d at 218. Here, to the extent consumers even know what the term “Osetra” means, then, taking Plaintiff’s allegations as true, it is merely a type of caviar, whereas the term Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 23 of 26 18 “Caviar” covers an entire category of goods.8 See Compl. ¶ 39. That difference in meaning is enough for dismissal as a matter of law. Further, while Plaintiff’s claim should fail based on this “single most probative” factor alone, several other Lapp factors fall in Yurman’s favor as well. For example, as to Lapp factor three, consumers of Yurman’s and Plaintiff’s products will exercise “heightened care” in choosing products, given the price points of the two jewelry lines. See supra Background, at pp. 2-3; see Aetrex, 2013 WL 6179189, at *5. Lapp factors four and six also weigh in favor of Yurman, as Plaintiff has not alleged any actual confusion between its jewelry and Yurman’s jewelry — even though the two lines have been sold together in the marketplace for more than two years — nor has Plaintiff alleged any facts to support its “naked conclusion” that Yurman intended to confuse consumers. Aetrex, 2013 WL 6179189, at *5. Accordingly, since no reasonable factfinder could find a likelihood of confusion based on these allegations, Plaintiff’s claims for trademark infringement should be dismissed. 8 Dictionary definitions confirm this distinction between the two terms. Specifically, “caviar” is defined as “processed salted roe of large fish (as sturgeon),” see . “Osetra,” on the other hand, is defined primarily as “a golden or brownish caviar from a sturgeon (as Acipenser gueldenstaedtii of the Caspian Sea) with roe somewhat smaller than the beluga and having a usually nutty flavor,” see . That is, the term “caviar” covers the entire category of fish eggs, while “osetra” is only one type of fish egg. Thus, if, as Plaintiff alleges, “caviar” and “osetra” have the same meaning, then so would “fruit” and “banana.” Further, the alternative definition of “osetra” is “the fish” itself, see id., which is consistent with the fact that “osetra,” a term taken from the Russian word “осетрина,” means “sturgeon” in English (see Ex. D, a website page from Google Translate showing the translation of the term “sturgeon” into Russian). Either way, Plaintiff’s allegation that the two terms mean the same thing holds no water. Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 24 of 26 19 CONCLUSION For the foregoing reasons, Yurman’s Motion to Dismiss should be granted in all respects, and the Court should dismiss Plaintiff’s Complaint in its entirety. Dated: March 8, 2017 Respectfully Submitted, /s/ Noah S. Robbins M. Kelly Tillery, Esq. Noah S. Robbins, Esq. PEPPER HAMILTON LLP 3000 Two Logan Square Eighteenth and Arch Streets Philadelphia, PA 19103 (215) 981-4000 tilleryk@pepperlaw.com burtond@pepperlaw.com robbinsn@pepperlaw.com Louis S. Ederer, Esq. (pro hac motion pending) Matthew T. Salzmann, Esq. (pro hac motion pending) Tal Machnes, Esq. (pro hac motion pending) ARNOLD & PORTER KAYE SCHOLER LLP 250 West 55th Street New York, New York 10019 Phone (212) 836-8000 Fax (212) 715-1399 louis.ederer@apks.com matthew.salzmann@apks.com tal.machnes@apks.com Attorneys for Defendants David Yurman IP LLC and David Yurman Enterprises LLC Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 25 of 26 CERTIFICATE OF SERVICE I, hereby certify that on March 8, 2017, I caused a true and correct copy of the foregoing Motion to Dismiss and supporting documents to be served via the Court’s ECF system upon all counsel of record. /s/ Noah S. Robbins Noah S. Robbins, Esq. Case 2:17-cv-00315-PBT Document 13-2 Filed 03/08/17 Page 26 of 26 E X H I B I T “A” Case 2:17-cv-00315-PBT Document 13-3 Filed 03/08/17 Page 1 of 14 Case 2:17-cv-00315-PBT Document 13-3 Filed 03/08/17 Page 2 of 14 Case 2:17-cv-00315-PBT Document 13-3 Filed 03/08/17 Page 3 of 14 E X H I B I T “B” Case 2:17-cv-00315-PBT Document 13-3 Filed 03/08/17 Page 4 of 14 Public Catalog Copyright Catalog (1978 to present) Search Request: Left Anchored Name = lagos, inc. Search Results: Displaying 1 of 1 entries Black Caviar. Type of Work: Cancelled Registration Cancelled Registration Number: VA0002027050 Claim was approved by mistake. It should have been rejected. Application Title: Black Caviar. Title: Black Caviar. Description: Electronic file (eService) Copyright Claimant: LAGOS, INC. Address: 441 NORTH FIFTH STREET, Philadelphia, PA, 19123, United States. Date of Creation: 2014 Date of Publication: 2015-08-05 Nation of First Publication: United States Authorship on Application: LAGOS, INC., employer for hire; Domicile: United States; Citizenship: United States. Authorship: jewelry design. Rights and Permissions: Maxim A. Voltchenko, Duane Morris LLP, 30 S. 17th St., Philadelphia, PA, 19103-4196, United States, (215) 979-1823, (215) 979-1823, mavoltchenko@duanemorris.com Copyright Note: C.O. correspondence. Names: LAGOS, INC. Save, Print and Email (Help Page) Select Download Format Enter your email address: Help Search History Titles Start Over WebVoyage Record View 1 http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?Search_Arg=lagos,+inc... 1 of 2 3/7/2017 2:14 PM Case 2:17-cv-00315-PBT Document 13-3 Filed 03/08/17 Page 5 of 14 Contact Us | Request Copies | Get a Search Estimate | Frequently Asked Questions (FAQs) about Copyright | Copyright Office Home Page | Library of Congress Home Page WebVoyage Record View 1 http://cocatalog.loc.gov/cgi-bin/Pwebrecon.cgi?Search_Arg=lagos,+inc... 2 of 2 3/7/2017 2:14 PM Case 2:17-cv-00315-PBT Document 13-3 Filed 03/08/17 Page 6 of 14 E X H I B I T “C” Case 2:17-cv-00315-PBT Document 13-3 Filed 03/08/17 Page 7 of 14 w Ci rc u la r 1 0 2 10.0213 Special Handling Special handling is the expedited processing of an online or paper application for registration of a claim to copyright or for the recordation of a document pertaining to copyright. It is granted in certain circumstances to those who have compelling reasons for this service. It is subject to the approval of the chief of the Receipt Analysis and Control Division, who must consider the workload of the Copyright Office at the time the request is made. When Is Special Handling Granted? Special handling is granted only in the following specific circumstances: • pending or prospective litigation • customs matters • contract or publishing deadlines that necessitate the expedited issuance of a certificate Special handling is not available for requests to reconsider a refusal to register. Processing Time for Special Handling Cases Once a request for special handling is received and approved, every attempt is made to process the claim or recordation within five working days. However, no guarantee is made that the work can be processed within this time. If correspondence is required, the Office makes every effort to process the claim expeditiously after the reply is received. Once a claim is processed, the Office either issues the certificate of registration or notifies the applicant of any defect in the claim. In the case of a document, the document is returned with a certificate of recordation. Please note that the electronic record of a registration or recordation may not be immediately available. To Expedite Processing, Register Online The preferred way to register basic claims for literary works; visual arts works; performing arts works, including motion pictures; sound recordings; and single serials is online through the electronic Copyright Office (eCO) at www. copyright.gov. The advantages of online filing include a lower filing fee; fastest processing time; online status tracking; secure payment by credit or debit card, electronic check, or Copyright Office deposit account; and the ability to upload certain categories of deposits directly into eCO as electronic files. *note: You can still register using eCO even if you will submit a hard-copy deposit, which is required under the mandatory deposit requirements for most published works. The system will prompt you to specify whether you intend to submit an electronic or a hard-copy deposit, and it will provide instructions accordingly. Case 2:17-cv-00315-PBT Document 13-3 Filed 03/08/17 Page 8 of 14 Special Handling · 2 Special Handling Fee Special handling of a registration requires a special handling fee in addition to the registration filing fee. Likewise, special handling for recording a document(s) requires a special han- dling fee in addition to the fee for recording the document(s). The fee may be charged to a deposit account established in the Copyright Office or may be paid by check or money order. The fee can also be paid in cash or by credit card if it is paid in person at the Copyright Office. When filing online, you may pay by credit card, debit card, or electronic check (ACH). If a check is returned for insufficient funds, the reg- istration or recordation will be canceled. Filing fees remit- ted to the Copyright Office for special handling will not be refunded, whether or not the certificate of registration is ultimately issued. To cover administrative and processing costs, fees received in conjunction with requests for services may not be refunded even when the services cannot be pro- vided. note: Copyright Office fees are subject to change. For current fees, please check the Copyright Office website at www.copyright.gov, write the Copyright Office, or call (202) 707-3000 or 1-877-476-0778 (toll free). About paying the fee: Drafts (checks) must be redeemable without a service or exchange fee through a U. S. institution, must be payable in U. S. dollars, and must be imprinted with American Banking Association routing numbers. Interna- tional money orders and foreign postal money orders that are negotiable only at a post office are not accepted. Deposit accounts must contain sufficient funds. If a replenishment check accompanies a claim, processing cannot begin until the money has been posted to the deposit account. Conversion of Checks Checks and money orders presented in payment for Copyright Office services will be converted into an electronic funds transfer (ETF). This means that the Copyright Office will copy your check and use the account information on it to debit your account electronically for the amount of the check. The debit from your account will usually occur within 24 hours of processing and will be shown on your regular account statement. You will not receive your original check back. The Office will destroy your original check but will keep an electronic copy of it. If the EFT cannot be processed for technical rea- sons, the Office will reprocess a paper copy of your original check. If the EFT cannot be completed because of insufficient funds, your service request will not be processed. Multiple Claims with One Deposit If special handling is requested for only one of several claims submitted at the same time with a single deposit, which is an acceptable deposit for all the claims, there will be an addi- tional fee for each claim using the same deposit. This fee will be added to the fee charged for regular handling, plus the filing fee for each claim. The claim for which special han- dling is requested is processed for the special handling fee plus the filing fee. The other claims sharing the deposit do not get special handling. This narrow exception applies only where a single set of deposit copies may appropriately be submitted to regis- ter multiple claims in accordance with the practices of the Copyright Office. The applicant is given the option of sub- mitting an additional set of copies for the other applications to avoid assessment of the special fee. How to Request Special Handling Special handling may be requested online, in person, or by mail. The Copyright Office has a form that applicants who come to the Office are asked to fill out indicating the need for special handling. Applicants by mail must provide a letter stating why there is an urgent need for special handling. The urgent need must fall within one of the three previously mentioned categories. The request must also include a signed statement certifying that the information contained in the request is correct to the best of the requester’s knowledge. The request form or letter must also be accompanied by the following: • the appropriate application form for registration or the document that is to be recorded • the required deposit copies, phonorecords, or identifying material • the nonrefundable filing fee or recordation fee, and • the special handling fee Special handling procedures may be applied to cases pending in the Copyright Office, provided the previously mentioned criteria are met. Online Request The eCO online system allows you to include a request for special handling and either to upload a digital copy or mail in a hard copy to the special handling address below. Case 2:17-cv-00315-PBT Document 13-3 Filed 03/08/17 Page 9 of 14 Special Handling · 3 In-Person Request To request special handling in person, a private party should come to the Public Information Office of the Copyright Office, Library of Congress, 101 Independence Avenue SE, Washington, DC, between the hours of 8:30 am to 5:00 pm, eastern time, Monday through Friday, except federal holidays. The office is located in the James Madison Memorial Build- ing, Room lm-401. Do not use this address for special han- dling correspondence. Requests hand-delivered to the Public Information Office must be clearly labeled “Special Handling.” Courier-Delivered Request Courier deliveries are made to the Congressional Courier Acceptance Site located at 2nd and D Streets NE, Washington, DC, Monday through Friday between the hours of 8:30 am to 5:00 pm. Items left at the Congressional Courier Acceptance Site are generally delivered to the Copyright Office the next morning. It is important that packages left at the Congres- sional Courier Acceptance Site be no larger than 12" × 18" × 4" in size. Larger packages will experience a significant delay. Mail-in Request If you mail a special handling request, we strongly encourage you to use the following address: Special Handling Copyright RAC Division PO Box 71380 Washington, DC 20024-1380 note: This is a U.S. Postal Service mailbox. Delivery to this address should be by way of the U.S. Postal Service (registered or certified mail if tracking capability is desired), rather than by a private carrier. Because this mail is delivered via the Congressional Courier Acceptance Site, items mailed to this address must not exceed 12" × 18" × 4" in size. Packages exceeding these dimensions may be sent to the following address: Special Handling Department 100 Washington, DC 20540 However, the Office strongly suggests they be delivered in person. Requests for Claim Already in the Copyright Office To request special handling for an online or paper claim that is already in the Copyright Office, it is strongly recom- mended that you call ahead to be sure the Office can locate your materials. Call the Receipt Analysis and Control Divi- sion at 202-707-7700 or email mcs@loc.gov. Be ready to provide identifying information about the pending claim, including: • the exact title appearing on the application • the names of the author(s) and claimant(s) • a full description of the deposit copy or copies • how and when the claim was delivered to the Copyright Office (in person, by courier, or by mail) • if sent by mail, the type of mailing (registered, certified, first class, etc.) Certified Copy of a Deposit If you need a certified copy of a deposit, include the request for certification, the certification fee, and the minimum copying fee together at the time you request special han- dling. Submit all these items together in one package. This will facilitate the certification process and avoid payment of certain fees at a later date. The certified copy will be mailed under separate cover. See Circular 6, Obtaining Acccess to and Copies of Copyright Records and Deposits, for additional information on requesting a certified copy of a deposit. Effective Date of Registration When the Copyright Office issues a registration certificate, it assigns as the effective date of registration the date it received all the required elements—an application, a nonrefundable filing fee, and a nonreturnable deposit—in acceptable form, regardless of how long it took to process the application and mail the certificate. You do not have to receive your certifi- cate before you publish or produce your work, nor do you need permission from the Copyright Office to place a copy- right notice on your work. However, the Copyright Office must have acted on your application before you can file a suit for copyright infringement, and certain remedies, such as statutory damages and attorney’s fees, are available only for acts of infringement that occurred after the effective date of registration. If a published work was infringed before the effective date of registration, those remedies may be available if the effective date of registration is within three months after the first publication of the work. Case 2:17-cv-00315-PBT Document 13-3 Filed 03/08/17 Page 10 of 14 Special Handling · 4 U. S. Copyright Office · Library of Congress · 101 Independence Avenue SE · Washington, DC 20559 · www.copyright.gov circular 10 reviewed: 02 ⁄ 2013 Printed on recycled paper u.s. government printing office: 2013-xxx-xxx ⁄ xx,xxx For Further Information By Internet Circulars, announcements, regulations, other related materi- als, and copyright application forms are available from the Copyright Office website at www.copyright.gov. To send an email communication, click on Contact Us at the bottom of the homepage. By Telephone For general information about copyright, call the Copyright Public Information Office at (202) 707-3000 or 1-877-476- 0778 (toll free). Staff members are on duty from 8:30 am to 5:00 pm, eastern time, Monday through Friday, except federal holidays. Recorded information is available 24 hours a day. Or, if you know which application forms and information circulars you want, request them 24 hours a day from the Forms and Publications Hotline at (202) 707-9100. Leave a recorded message. By Regular Mail Write to: Library of Congress Copyright Office-COPUBS 101 Independence Avenue SE Washington, DC 20559 Case 2:17-cv-00315-PBT Document 13-3 Filed 03/08/17 Page 11 of 14 E X H I B I T “D” Case 2:17-cv-00315-PBT Document 13-3 Filed 03/08/17 Page 12 of 14 A b o u t 1 , 3 5 0 , 0 0 0 , 0 0 0 r e s u l t s ( 0 . 4 7 s e c o n d s ) FeedbackO p e n i n G o o g l e T r a n s l a t e T o p s t o r i e s M o r e f o r g o o g l e t r a n s l a t e n o u n о с е т р s t u r g e o n о с е т р ин а s t u r g e o n s t u r g e o n ˈ s t ə r j ə n E n g l i s h о с е т р o s e t r Ru s s i a n S h o w l e s s Go o g l e T r a n s l a t e h t t p s : / / t r a n s l a t e . g o o g l e . c o m / G o o g l e ' s f r e e s e r v i c e i n s t a n t l y t r a n s l a t e s w o r d s , p h r a s e s , a n d w e b p a g e s b e t w e e n E n g l i s h a n d o v e r 1 0 0 o t h e r l a n g u a g e s . Go o g l e T r a n s l a t e - A n d r o i d A p p s o n Go o g l e P l a y h t t p s : / / p l a y . g o o g l e . c o m / s t o r e / a p p s / d e t a i l s ? i d = c o m . g o o g l e . a n d r o i d . a p p s . t r a n s l a t e . . . Ra t i n g : 4 . 4 - 4 , 7 8 7 , 8 9 3 v o t e s - Fr e e T r a n s l a t e b e t w e e n 1 0 3 l a n g u a g e s b y t y p i n g • T a p t o T r a n s l a t e : C o p y t e x t i n a n y a p p a n d y o u r t r a n s l a t i o n p o p s u p • O f f l i n e : T r a n s l a t e 5 2 l a n g u a g e s w h e n y o u . . . Feedback H o w d o e s Go o g l e T r a n s l a t e w o r k o n a w e b s i t e ? H o w d o Iu s e t h e Go o g l e t r a n s l a t o r ? H o w d o y o u t r a n s l a t e a w e b s i t e ? Is t h e G o o g l e t r a n s l a t o r a c c u r a t e ? P e o p l e a l s o a s k Go o g l e T r a n s l a t e - C h r o m e W e b S t o r e h t t p s : / / c h r o m e . g o o g l e . c o m / . . . / g o o g l e - t r a n s l a t e / a a p b d b d o m j k k j k a o n f h k k i k f g j l l c l e b ? h l . . . Ra t i n g : 4 . 4 - 2 6 , 0 7 8 v o t e s - Fr e e - C h r o m e V i e w t r a n s l a t i o n s e a s i l y a s y o u b r o w s e t h e w e b . B y t h e G o o g l e T r a n s l a t e t e a m . D i s r e p u t e , b a r r e v i e w : … E v e n i n g S t a n d a r d · 9 h o u r s a g o W a v e r l y L a b s P i l o t T r … C N E T · 1 d a y a g o Go o g l e T r a n s l a t e n o w … V e n t u r e B e a t · 1 m o n t h a g o s t u r g e o n A l l B o o k s S h o p p i n g N e w s V i d e o s T o o l sM o r e S e t t i n g s g o o g l e t r a n s l a t e S i g n i n Page 1 of 2google translate - Google Search 3/2/2017https://www.google.com/search?sourceid=navclient&aq=&oq=meaning+of+osetra&ie=UT... Case 2:17-cv-00315-PBT Document 13-3 Filed 03/08/17 Page 13 of 14 S e a r c h e s r e l a t e d t o g o o g l e t r a n s l a t e g o o g l e t r a n s l a t e i n h i n d i b i n g t r a n s l a t o r g o o g l e t r a n s l a t e e n g l i s h t o h i n d i w o r d r e f e r e n c e g o o g l e t r a n s l a t e c a m e r a g o o g l e t r a n s l a t e d o w n l o a d a r a b i c k e y b o a r d g o o g l e t e r j e m a h a n 2 3 4 5 6 7 8 9 1 0 N e x t Go o g l e T r a n s l a t e o n t h e A p p S t o r e - i T u n e s - A p p l e h t t p s : / / i t u n e s . a p p l e . c o m / u s / a p p / g o o g l e - t r a n s l a t e / i d 4 1 4 7 0 6 5 0 6 ? m t = 8 Ra t i n g : 3 . 3 - 6 r e v i e w s - Fr e e - i O S - Re f e r e n c e T e x t t r a n s l a t i o n : T r a n s l a t e b e t w e e n 1 0 3 l a n g u a g e s b y t y p i n g • O f f l i n e : T r a n s l a t e w i t h n o i n t e r n e t c o n n e c t i o n ( 5 2 l a n g u a g e s ) • In s t a n t c a m e r a t r a n s l a t i o n : . . . Go o g l e T r a n s l a t e - W i k i p e d i a h t t p s : / / e n . w i k i p e d i a . o r g / w i k i / G o o g l e _ T r a n s l a t e G o o g l e T r a n s l a t e i s a f r e e m u l t i l i n g u a l m a c h i n e t r a n s l a t i o n s e r v i c e d e v e l o p e d b y G o o g l e , t o t r a n s l a t e t e x t , s p e e c h , i m a g e s , s i t e s , o r r e a l - t i m e v i d e o f r o m o n e . . . A v a i l a b l e i n : 1 0 3 l a n g u a g e s , s e e s u p p o r t e d l a . . . U s e r s : O v e r 2 0 0 + m i l l i o n p e o p l e d a i l y Go o g l e T r a n s l a t e T e x t - i T o o l s i t o o l s . c o m / t o o l / g o o g l e - t r a n s l a t e - t e x t - t r a n s l a t o r G o o g l e ' s f r e e o n l i n e l a n g u a g e t r a n s l a t i o n s e r v i c e i n s t a n t l y t r a n s l a t e s t e x t t o o t h e r l a n g u a g e s . T h i s t r a n s l a t o r s u p p o r t s : E n g l i s h , A r a b i c , B u l g a r i a n , C h i n e s e , . . . T h e Gr e a t A . I. A w a k e n i n g - T h e N e w Y o r k T i m e s h t t p s : / / w w w . n y t i m e s . c o m / 2 0 1 6 / 1 2 / 1 4 / m a g a z i n e / t h e - g r e a t - a i - a w a k e n i n g . h t m l H o w G o o g l e u s e d a r t i f i c i a l i n t e l l i g e n c e t o t r a n s f o r m G o o g l e T r a n s l a t e , o n e o f i t s m o r e p o p u l a r s e r v i c e s — a n d h o w m a c h i n e l e a r n i n g i s A n In f u s i o n o f A IM a k e s G o o g l e T r a n s l a t e M o r e P o w e r f u l T h a n E v e r . . . h t t p s : / / w w w . w i r e d . c o m / 2 0 1 6 / 0 9 / g o o g l e - c l a i m s - a i - b r e a k t h r o u g h - m a c h i n e - t r a n s l a t i o n / L a s t M a r c h , a c o m p u t e r b u i l t b y a t e a m o f G o o g l e e n g i n e e r s b e a t o n e o f t h e w o r l d ' s t o p p l a y e r s a t t h e a n c i e n t g a m e o f Go . T h e m a t c h b e t w e e n . . . Go o g l e T r a n s l a t e : W i l l Go o g l e ' s C o m p u t e r s U n d e r s t a n d L a n g u a g e s . . . w w w . s l a t e . c o m / . . . / g o o g l e _ t r a n s l a t e _ w i l l _ g o o g l e _ s _ c o m p u t e r s _ u n d e r s t a n d _ l a n g u a g e s _ b . . . E n t e r G o o g l e T r a n s l a t e — Go o g l e d i d n ' t i n v e n t t h i s m e t h o d b u t t h e y ' r e c e r t a i n l y d o m i n a t i n g i t n o w — w h i c h a v o i d s t h a t r e d u c t i v e c o n c e p t o f . . . T r a n s l a t e | G o o g l e B l o g h t t p s : / / b l o g . g o o g l e / p r o d u c t s / t r a n s l a t e / Re a d t h e l a t e s t n e w s a n d u p d a t e s a b o u t G o o g l e T r a n s l a t e , o u r t o o l t h a t a l l o w s y o u t o s p e a k , s c a n , s n a p , t y p e , o r d r a w t o t r a n s l a t e i n o v e r 1 0 0 l a n g u a g e s . Fo u n d i n t r a n s l a t i o n : M o r e a c c u r a t e , f l u e n t s e n t e n c e s i n Go o g l e . . . h t t p s : / / b l o g . g o o g l e / . . . / t r a n s l a t e / f o u n d - t r a n s l a t i o n - m o r e - a c c u r a t e - f l u e n t - s e n t e n c e s - g o o g . . . N o v 1 5 , 2 0 1 6 - In 1 0 y e a r s , G o o g l e T r a n s l a t e h a s g o n e f r o m s u p p o r t i n g j u s t a f e w l a n g u a g e s t o 1 0 3 , c o n n e c t i n g s t r a n g e r s , r e a c h i n g a c r o s s l a n g u a g e b a r r i e r s . . . 1 0 0 1 9 , N e w Y o r k , N Y - Fr o m y o u r In t e r n e t a d d r e s s - U s e p r e c i s e l o c a t i o n - L e a r n m o r e H e l p S e n d f e e d b a c k P r i v a c y T e r m s Page 2 of 2google translate - Google Search 3/2/2017https://www.google.com/search?sourceid=navclient&aq=&oq=meaning+of+osetra&ie=UT... Case 2:17-cv-00315-PBT Document 13-3 Filed 03/08/17 Page 14 of 14