Spanx v Yummie Tummie - Motion to Transfer
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Transcript of Spanx v Yummie Tummie - Motion to Transfer
-1- NY 74511497
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SPANX, INC., ) ) Plaintiff, ) Case No. 13-CV-00710-WSD ) v. ) ) TIMES THREE CLOTHIER, LLC ) d/b/a Yummie Tummie, ) ) Defendant. )
DEFENDANT TIMES THREE CLOTHIER, LLC’S MOTION TO TRANSFER, OR, IN THE ALTERNATIVE, STAY THIS ACTION
Defendant Times Three Clothier, LLC (“Yummie Tummie”) hereby moves
to transfer the Complaint in the instant action (“the Georgia Action”) filed by
Plaintiff Spanx, Inc. (“Spanx”) requesting declaratory relief of non-infringement
and invalidity to the Southern District of New York, where a virtually identical
action, entitled Times Three Clothier, LLC v. Spanx, Inc., Civil Action No. 13-cv-
2157 (“the New York Action”), is currently pending. In the alternative, Yummie
Tummie seeks to stay the instant action, so that the New York Action may
proceed.
Case 1:13-cv-00710-WSD Document 4 Filed 04/02/13 Page 1 of 6
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In support of the instant Motion, Yummie Tummie annexes its
Memorandum of Law in support hereof and the Declarations of Laura Goldbard
George and Richard Rothfeld.
The communications between the parties leading to Spanx’s filing of the
Georgia Action evidences the bad faith anticipatory nature of the Georgia Action.
After an initial exchange of correspondence outlining the parties’ respective
positions regarding Yummie Tummie’s claims of infringement against Spanx, the
parties engaged in pre-suit settlement negotiations. The very same day that
counsel for Spanx proposed a possible framework for an amicable resolution,
Spanx filed the instant Action against Yummie Tummie, without any indication
that settlement negotiations were being terminated.
Spanx’s actions clearly indicate that Spanx intended to mislead Yummie
Tummie and delay Yummie Tummie from filing suit, so that Spanx could choose
its own forum. This Court should not reward Spanx’s bad faith behavior, and thus
should transfer or, in the alternative, stay the Georgia Action.
Moreover, the Southern District of New York is the most convenient forum
to hear this dispute. As discussed in more detail in Yummie Tummie’s
Memorandum of Law, key witnesses and documents are located in the New York
metropolitan area, Spanx has significant contacts with New York and Spanx is the
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party best placed to absorb the costs of litigation. Accordingly, Spanx will not be
inconvenienced by litigating in New York, rather than in the Northern District of
Georgia.
CONCLUSION
For the forgoing reasons, and those set forth in Defendant Times Three
Clothier, LLC’s Memorandum of Law, Yummie Tummie requests that the Court
exercise its discretion and transfer the Georgia Action to the Southern District of
New York, or, in the alternative, stay these proceedings in favor of permitting the
New York Action to proceed.
DATED: April 2, 2013 Respectfully submitted,
OF COUNSEL: s/Theodore H. Davis Jr.
Steven B. Pokotilow Laura Goldbard George
Theodore H. Davis Jr. Ga. Bar. No. 212913
Irah Donner Binni N. Shah STROOCK & STROOCK & LAVAN LLP 180 Maiden Lane
KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street Suite 2800
New York, NY 10038-4982 (212) 806-5400
Atlanta, GA 30309-4528 [email protected]
Attorneys for Defendant Times Three
Clothier, LLC
Case 1:13-cv-00710-WSD Document 4 Filed 04/02/13 Page 3 of 6
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IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SPANX, INC., ) ) Plaintiff, ) Case No. 13-CV-00710-WSD ) v. ) ) TIMES THREE CLOTHIER, LLC ) d/b/a Yummie Tummie, ) ) Defendant. )
CERTIFICATE OF COMPLIANCE
Pursuant to Local Rule 7.1D, the attached pleading complies with the
font and point selections prescribed by Local Rule 5.1B and uses 14 point Times
New Roman Font.
s/ Theodore H. Davis Jr. Theodore H. Davis Jr.
Case 1:13-cv-00710-WSD Document 4 Filed 04/02/13 Page 4 of 6
-5- NY 74511497
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SPANX, INC., ) ) Plaintiff, ) Case No. 13-CV-00710-WSD ) v. ) ) TIMES THREE CLOTHIER, LLC ) d/b/a Yummie Tummie, ) ) Defendant. )
CERTIFICATE OF SERVICE
I certify that on April 2, 2013, I electronically filed the foregoing document
using the CM/ECF system and have served the same document via Hand Delivery
as follows:
Natasha H. Moffitt Laura S. Huffman
King & Spalding LLP 1180 Peachtree Street, N.E. Atlanta, GA 30309-3521
and via First Class Mail:
Kathleen E. McCarthy King & Spalding LLP
1185 Avenue of the Americas New York, NY 10036
Case 1:13-cv-00710-WSD Document 4 Filed 04/02/13 Page 5 of 6
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s/ Theodore H. Davis Jr. Theodore H. Davis Jr.
Case 1:13-cv-00710-WSD Document 4 Filed 04/02/13 Page 6 of 6
1 NY 74503821
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SPANX, INC., ) ) Plaintiff, ) Case No. 13-CV-00710-WSD ) v. ) ) TIMES THREE CLOTHIER, LLC ) d/b/a Yummie Tummie, ) ) Defendant. )
DEFENDANT TIMES THREE CLOTHIER, LLC’S MEMORANDUM OF LAW IN SUPPORT OF ITS MOTION TO TRANSFER, OR, IN THE
ALTERNATIVE, STAY THIS ACTION
Defendant Times Three Clothier, LLC (“Yummie Tummie”) hereby moves
to transfer the instant action to the United States District Court for the Southern
District of New York because it is an improper anticipatory filing. In the
alternative, Yummie Tummie moves to stay these proceedings so that a second-
filed action involving the same parties and virtually the same issues entitled Times
Three Clothier, LLC v. Spanx, Inc., Civil Action No. 13-cv-2157 may proceed.
Transfer and/or Stay is appropriate because the balance of justice and convenience
of the parties weighs in favor of transfer.
Case 1:13-cv-00710-WSD Document 4-1 Filed 04/02/13 Page 1 of 22
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For the reasons stated below, and the Declarations of Laura Goldbard
George and Richard Rothfeld submitted in support hereof, this motion should be
granted.
I. SUMMARY OF ARGUMENT
Spanx, Inc. (“Spanx”) filed the instant action (“the Georgia Action”) on
March 5, 2013 requesting declaratory relief against Yummie Tummie in the midst
of ongoing settlement negotiations, ensuring that Yummie Tummie, the natural
plaintiff, would be deprived of its choice of forum. By engaging in what Yummie
Tummie believed were sincere settlement negotiations between the parties,
Yummie Tummie delayed filing suit, despite being ready to do so. Spanx deceived
Yummie Tummie by indicating that the parties were working towards a mutually
agreeable resolution when in fact, Spanx was preparing its Complaint to be filed.
As the real plaintiff in interest, Yummie Tummie has filed a patent
infringement action against Spanx in the United States District Court for the
Southern District of New York (“the New York Action”), captioned Times Three
Clothier, LLC v. Spanx, Inc., Civil Action No.13-cv-2157, accusing Spanx of
infringing substantially similar patents as those identified by Spanx in the Georgia
Action.
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As discussed in greater detail below, the Georgia Action is not entitled to
deference as a the first-filed action because it is an anticipatory that should not get
the benefit of the first-to-file rule. In particular, after a series of correspondence
and teleconferences, Spanx proposed a framework for a partial resolution of the
dispute. Significantly, Spanx never gave any indication that settlement
negotiations were at an end during a teleconference with Spanx’s counsel on
March 5, 2013. Yet, the very same day that Spanx made its proposal and before
Yummie Tummie had a chance to respond to that proposal, Spanx proceeded to
file the Georgia Action. These actions clearly demonstrate that Spanx was
negotiating with Yummie Tummie in hopes to delay Yummie Tummie from filing
suit, so that Spanx could choose its preferred forum. The Court, in its discretion,
should transfer the Georgia Action which on the merits is virtually
indistinguishable from the New York Action to the Southern District of New York,
where the New York Action is pending.
Furthermore, the Southern District of New York is the most convenient
forum to adjudicate the present dispute between the parties, since several key
witnesses and the relevant documents concerning the development of the patents
are located in New York and Spanx is the party best suited to absorb the costs of
litigation. Additionally, Spanx has significant contacts with New York, including
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a showroom, distribution of its products to over 200 retailers in New York,
advertising its products in New York and selling its product out of New York at
various trade shows and at Fashion Week in New York City. Furthermore, this
Court should not reward Spanx’s bad-faith anticipatory filing in allowing Spanx to
choose the forum where this dispute should be heard.
Accordingly, this Court should exercise its discretion and deny Spanx the
benefit of having first filed this action and transfer this action to the Southern
District of New York, which is the most convenient forum, or in the alternative,
stay the present proceedings.
II. STATEMENT OF FACTS
A. Yummie Tummie’s Patents
Yummie Tummie owns several patents, such as U.S. Design Patent Nos.
D606,285; D616,627; D622,477; D623,377; D632,051; D632,052 and D632,053
(collectively the “Georgia Action Patents”). These patents cover a variety of
shapewear garments. Yummie Tummie markets, distributes, and sells its
innovative designs under the well-known brand names Yummie Tummie®,
Yummie by Heather Thomson®, Tummy Tank®, TummyliciousTM, RIPT Fusion®
and Core FormTM (collectively, “Yummie Tummie®”).
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B. Yummie Tummie’s Cease and Desist letter to Spanx
On January 18, 2013, counsel for Yummie Tummie sent Spanx a cease and
desist letter, charging Spanx with infringement of the Georgia Action Patents (“the
January 18 Letter”). (Goldbard Dec. Ex. 1). Yummie Tummie also stated that
Yummie Tummie “vigorously enforces its rights in its patents” and that it had
previously “settled a patent infringement action with Maidenform paying [Yummie
Tummie] 6.75 million.” (Id.) Yummie Tummie demanded that Spanx refrain from
selling the infringing garments and provide Yummie Tummie damages for all past
and ongoing infringement.” (Id.) Yummie Tummie set a deadline for January 31,
2013 by which date Spanx had to comply with Yummie Tummie’s requests. (Id.)
C. Spanx’s Response to Yummie Tummie’s Cease and Desist Letter
Spanx requested a number of extensions to formally respond to Yummie
Tummie’s charges of infringement, which Yummie Tummie readily granted.
(Goldbard Dec. Exs. 2, 3, 4). Finally, on February 14, 2013, Spanx provided a
written response. (Goldbard Dec. Ex. 5) Notably, Spanx indicated that it was
“interested in continuing [the] discussions and resolving any dispute amicably.”
(Id.) The particulars regarding what Spanx proposed is not set forth herein
pursuant to Fed. R. Evid. Rule 408. Upon receipt and consideration of Spanx’s
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response, counsel for Yummie Tummie requested a conference with Spanx to
discuss the response. (Goldbard Dec. Ex. 6, 7, 8).
D. Subsequent Negotiations between the Parties
On February 22, 2013, Ms. Laura Goldbard George and Mr. Steven B.
Pokotilow, counsel for Yummie Tummie, and Ms. Kathleen McCarthy, counsel for
Spanx, held a conference call to discuss the respective positions of each party.
(Goldbard Dec. ¶ 16). Ms. Goldbard and Mr. Pokotilow disagreed with the
positions set forth by Spanx and informed Ms. McCarthy that Yummie Tummie
was ready to file a complaint for patent infringement if they did not reach an
amicable resolution. (Id.) Ms. McCarthy agreed to speak to her client, after which
a second discussion would be had. (Id.)
After a series of delays attributable to Spanx, (see Goldbard Dec. Exs. 9, 10,
11), Ms. Goldbard and Mr. Pokotilow and Ms. McCarthy held a second telephone
conference on March 5, 2013. (Goldbard Dec. ¶17). Ms. McCarthy proposed
another framework for resolving the charge of infringement. (Id.) Ms. Goldbard
and Mr. Pokotilow stated that they would advise their client of Spanx’s proposal
and get back to Spanx after consulting Yummie Tummie. (Id.) At no time during
that conversation did counsel for Spanx advise that settlement negotiations were
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being terminated or that Spanx was preparing to file a lawsuit against Yummie
Tummie. (Id.)
On the very same day of the telephone conference, even before Mr.
Pokotilow or Ms. Goldbard could speak to their client and present Spanx’s
proposed framework, counsel for Spanx preemptively filed the instant declaratory
judgment action (“the Georgia Action”) seeking a declaration that Spanx does not
infringe on the Georgia Action Patents. Yummie Tummie had refrained from
filing suit against Spanx in the Southern District of New York based on Spanx’s
representations that the parties were working towards a mutually agreeable
resolution of the dispute. (Rothfeld Dec. ¶ 5).
E. Relationship between the New York Action and the Georgia Action
On April 2, 2013, Yummie Tummie filed the New York Action. (Goldbard
Dec. Ex. 12). The New York Action is an action for design patent infringement
arising under 35 U.S.C. § 101, et. seq., four weeks after Spanx filed the Georgia
Action. In the New York Action Complaint, Yummie Tummie alleges that Spanx
has used and continues to use the designs of US Design Patent Nos. 606,285;
616,627; 622,477; 623,377; 665,558; and 666,384 (collectively the “New York
Action Patents”) in the products that it makes, uses, sells, and offers to sell without
Yummie Tummie’s permission. The specific accused products are Spanx’s “The
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Total Taming Tank A226764,” also known as “The Spanx Total Taming Tank,”
“the Top This Tank Style 1847” and “The Top This Cami Style 1846.” Further,
Yummie Tummie alleges that Spanx has contributed to, or induced, and continues
to contribute or induce others, including third party retailers such as JC Penney,
Kohl’s, and QVC, and other garment purchasers to infringe the New York Action
Patents by using, selling, or offering to sell the infringing products.
The Georgia Action, rather, requests declaratory relief that the Georgia
Action Patents are invalid or not infringed. The products in question in the
Georgia Action and the New York Action, on the face of the respective complaints,
are identical, and the patents at issue in both actions are substantially the same and
cover similar art. Spanx filed the Georgia Action in anticipation of Yummie
Tummie’s suit against Spanx in the Southern District of New York for patent
infringement.
III. ARGUMENT
A. The Georgia Action is an Improper Anticipatory Filing
The Eleventh Circuit has ruled that although the first-to-file rule encourages
courts to defer to the first filing of a suit, the rule is not to be rigidly applied.
District courts have the discretion to “decline to entertain a [first-filed] declaratory
judgment action on the merits when a pending proceeding in another court will
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fully resolve the controversy between the parties.” Ven-Fuel, Inc. v. Dep't of the
Treasury, 673 F.2d 1194, 1195 (11th Cir. 1982) (dismissing the declaratory
judgment action where the declaratory judgment was filed in anticipation of
imminent legal proceedings). This Court should consider that “the declaratory
judgment action was filed in apparent anticipation of the other pending
proceeding” when considering declining jurisdiction. Id. “[A] suit is
‘anticipatory’ for the purposes of being an exception to the first-to-file rule if the
plaintiff in the first-filed action filed suit on receipt of specific, concrete indications
that a suit by the defendant was imminent.” Woodbolt Distrib., LLC v. Natural
Alternatives Intern., Inc., Civil Action No. 11–1266 GMS, 2013WL 247041
(D.Del. Jan. 23, 2013). Although a court may, in its discretion, dismiss an
anticipatory action, it may also, in its discretion transfer the action to another
district where a substantially similar case is pending. Soroka v. Lee Techs. Servs.,
Inc., CIV.A.1:06-CV-0710-TWT, 2006 WL 1734277 *4 (N.D. Ga. June 19, 2006)
(transferring the first-filed declaratory judgment action after finding that the
declaratory judgment action was anticipatory).
Courts have found that first-filed anticipatory actions, like the present
Georgia Action, should be dismissed or transferred where the declaratory judgment
plaintiff deceived the declaratory judgment defendant during pre-suit settlement
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negotiations. Denying a dismissal of a first-filed action in this circumstance would
lead to the perverse incentive to file a complaint prior to engaging in settlement
negotiations. Rather, “[p]otential plaintiffs should be encouraged to attempt
settlement discussions. . . prior to filing lawsuits without fear that the defendant
will be permitted to take advantage of the opportunity to institute litigation in a
district of its own choosing before the plaintiff files a complaint.” Z-Line Designs,
Inc. v. Bell'O Int'l, LLC, 218 F.R.D. 663, 666-67 (N.D. Cal. 2003) (dismissing a
first-filed suit where the declaratory judgment defendant had granted deadline
extensions with the expectation that settlement options were being explored and
the declaratory judgment plaintiff filed suit during the extension period.)
In Mission Ins. Co. v. Puritan Fashions Corp., the Fifth Circuit affirmed the
transfer of the declaratory judgment action to the second-filed court because the
declaratory judgment plaintiff misled the declaratory judgment defendant into
believing that it could have filed suit at a later time pending further discussion.
706 F.2d 599, 602 (5th Cir. 1983). Specifically, the declaratory judgment plaintiff
agreed to extend a contractual suit limitation period for 30 days, and soon
thereafter, prior to the expiration of the 30 days, the declaratory judgment plaintiff
rejected the claim and filed suit on the same day. Id. The Fifth Circuit stated
“these facts alone would be enough to support a finding of anticipatory filing.” Id.
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In Z-Line Designs, the court held that the anticipatory nature of the filing
precluded the application of the first to file rule. 218 F.R.D. at 666-67. The
declaratory judgment defendant sent letters to the declaratory judgment plaintiff
evidencing a specific and concrete indication of imminent judicial action. Id. The
letter identifies the allegedly infringing models, requests information regarding
damages resulting from the allegedly infringing activity, a request to cease selling
the products at issue and a statement that the declaratory judgment defendant will
take all steps to protect its intellectual property, including filing suit. Id. The
declaratory judgment defendant extended the deadlines to respond to this letter,
with the expectation that settlement options were being explored. Id. However,
within the extension period, the declaratory judgment plaintiff filed suit. Id. The
court found that the declaratory judgment defendant had misled the plaintiff by
accepting the extensions and leading the plaintiff to believe that it had an interest
in settlement. Id. Accordingly, the court dismissed the first-filed action. Id.
Moreover, courts have held that first-filed suits that engage in impermissible
forum shopping are also not given the benefit of the first-to-file rule. In Xoxide,
Inc. v. Ford Motors, Co., the court dismissed a declaratory judgment action
because the declaratory judgment plaintiff preemptively filed suit to “ensure its
choice of forum would prevail should litigation ensue” during discussions to effect
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a non-judicial resolution to the dispute. 448 F. Supp. 2d 1188, 1189 (C.D. Cal.
2006). The declaratory judgment defendant had sent numerous cease and desist
letters and engaged in settlement discussions. Id. Given that “where . . . a
declaratory judgment action has been triggered by a cease and desist letter that
both seeks settlement and notifies the party of the possibility of litigation upon the
collapse of negotiations, equity militates in favor of allowing the second-filed
action to proceed to judgment rather than the first.” Id. at 1193 (internal quotations
omitted). See Woodbolt Distrib., LLC v. Natural Alternatives Intern., Inc.,
Civil Action No. 11–1266 GMS, 2013 WL 247041 (D. Del. Jan. 23, 2013)
(dismissing a declaratory judgment action because the plaintiff had filed suit
during settlement negotiations as a “precautionary measure”).
Similarly, Spanx, like the plaintiffs in Mission Ins. Co., Xoxide, and Z-Line
Designs, misled Yummie Tummie by indicating that a non-judicial resolution was
possible, even going so far as suggesting a framework for a possible amicable
resolution for some of Yummie Tummie’s claims. Accordingly, Yummie Tummie
was lulled into a false sense of security based on such discussions, and in the hopes
of avoiding costly and disruptive litigation, did not immediately file suit.
Yummie Tummie gave Spanx clear, concrete indications that Yummie
Tummie was ready to file suit should negotiations fail to bear fruit. The January
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18 Letter, like the letter in Z-Line Designs, requesting that Spanx cease and desist
from infringing Yummie Tummie’s patents clearly identified the products that
were in issue, the patents that Yummie Tummie believed were infringed,
information relating to past and ongoing damages, and a statement that Yummie
Tummie “vigorously enforces the rights in its patents” referencing a prior legal
action taken against another defendant. (Goldbard Dec. Ex. 1 ). The letter itself
provided a deadline for a response from Spanx, after which it can be reasonably
inferred that Yummie Tummie would bring suit.
Assuming, arguendo, that the letter itself did not provide a specific, concrete
indication of imminent legal action, counsel for Yummie Tummie informed Spanx
on the February 22 conference call, twelve days before Spanx had filed the
Georgia Action, that Yummie Tummie was ready to file suit. (Goldbard Dec. ¶
16). Based on the timing of Spanx’s suit—filing suit the same day that Spanx
proposed a partial resolution—it is clear that the Georgia Action is an anticipatory
action filed in an effort to forum shop, and hence, should not be given the benefit
of the first-to-file rule.
Although a court may, in its discretion, dismiss an anticipatory action, it may
also, in its discretion transfer the action to another district where a substantially
similar case is pending. Soroka v. Lee Techs. Servs., Inc., CIV.A.1:06CV0710-
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TWT, 2006 WL 1734277 (N.D. Ga. June 19, 2006). Here, a substantially similar
action is pending in the Southern District of New York, and this Court should
exercise its discretion and transfer the Georgia Action to the Southern District of
New York or in the alternative, stay the Georgia Action. If this Court should deny
Yummie Tummie’s motion to transfer, or in the alternative stay, the Georgia
Action, the Court would unreasonably penalize Yummie Tummie for Yummie
Tummie’s attempt to resolve the dispute before filing suit. See Xoxide, 448 F.
Supp. 2d at 1194.
B. The Balance of Justice and Convenience of the Parties Weighs in Favor of Transfer to the Southern District of New York
The Southern District of New York is the most convenient forum to
adjudicate this dispute, and the balance of justice and convenience favors
transferring the Georgia Action to New York. In reaching this conclusion, courts
consider various factors, including: “(1) the convenience of the witnesses; (2) the
location of relevant documents and the relative ease of access to sources of proof;
(3) the convenience of the parties; (4) the locus of operative facts; (5) the
availability of process to compel the attendance of unwilling witnesses; (6) the
relative means of the parties; (7) a forum's familiarity with the governing law; (8)
the weight accorded a plaintiff's choice of forum; and (9) trial efficiency and the
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interests of justice, based on a totality of the circumstances.” Soroka, 2006 WL
1734277 at *4.
1. Convenience of the Witnesses
Several of Yummie Tummie’s key witnesses are located in New York, such
as Heather Thomson, the inventor of all of the patents, and Wendy Herman, head
of sales at Yummie Tummie. (Rothfeld Dec. ¶4). Moreover, Yummie Tummie’s
key witnesses do not have occasion to visit Georgia for work purposes whereas,
upon information and belief, some of Spanx’s expected witnesses travel to New
York for the purpose of carrying on Spanx’s business. Also, given that the fashion
industry is located in New York, industry experts would also be located in New
York.
Accordingly, this factor weighs in favor of transferring the Georgia Action
to the Southern District of New York.
2. Location of Relevant Documents and Relative Ease of Access to Sources of Proof
Yummie Tummie’s documents and records relating to the development of
the Georgia Action Patents, the documents that Yummie Tummie will likely be
called upon to verify the validity of these patents, are located at Yummie
Tummie’s offices in New York. (Rothfeld Dec. ¶ 3). While Spanx’s corporate
offices are located in Georgia, Yummie Tummie assumes that Spanx may have
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relevant documents relating to its sales that are accessible in New York.
Accordingly, this factor weighs in favor of transferring the Georgia Action to the
Southern District of New York.
3. Convenience of the Parties
Yummie Tummie is a limited liability company organized under the laws of
New York. (Rothfeld Dec. ¶2). Yummie Tummie’s principal place of business is
also located in New York. (Id.) Yummie Tummie has only limited contacts with
Georgia, primarily via retailers who sell Yummie Tummie’s product line.
Although Spanx is incorporated in Georgia, it has significant contacts with
New York. Specifically, Spanx has its own showroom in New York City, sells its
products in over 200 retailers in New York, advertises its products in New York,
has executives regularly travel to New York and shows its products for sale at
various trade shows located in New York and at Fashion Week hosted in New
York City. (Goldbard Dec. Exs. 13, 14, 15).
Whether the action proceeds in the Southern District of New York or this
Court, one of the parties will have to travel to the location. However, due to the
extensive contacts that Spanx has to New York, it would not be inconvenient for
Spanx to adjudicate this dispute in the Southern District of New York. In fact,
Spanx has already retained the counsel of Kathleen E. McCarthy, Esq., a New
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York-based attorney who was conducting the settlement negotiations on behalf of
Spanx at the time the Georgia Action was filed by Ms. McCarthy’s firm.
Furthermore, Yummie Tummie only has limited contacts with Georgia, and thus
litigating in the Northern District of Georgia would be inconvenient and impose an
undue financial burden on Yummie Tummie. Accordingly, this factor weighs in
favor of transferring the Georgia Action to the Southern District of New York.
4. Locus of Operative Facts
This factor is believed to be neutral for the parties, and thus should not be
considered in this analysis.
5. The Availability of Process to Compel the Attendance of Unwilling Witnesses
This factor is believed to be neutral for the parties, and thus should not be
considered in this analysis.
6. Weight Accorded to Plaintiff’s Choice of Forum
As discussed previously, Spanx’s choice of forum should be accorded little,
if any weight, as it is a bad-faith anticipatory action. Accordingly, this factor
weighs in favor of transferring the Georgia Action to the Southern District of New
York.
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7. Relative Means of the Parties
Spanx is a billion-dollar company according to Forbes Magazine. (Rothfeld
Dec. Ex. 1). Yummie Tummie, on the other hand, is a significantly smaller entity.
(Rothfeld Dec. ¶ 7). Accordingly, Spanx is in the best financial position to absorb
the cost of litigation. See Nam v. U.S. Xpress, Inc., 1:10-CV-3924-AT, 2011 WL
1598835 (N.D. Ga. Apr. 27, 2011) (finding that this factor weighs against transfer
because the financial burden would be placed on the smaller entity, rather than the
largest and most profitable company in that industry).
Accordingly, this factor weighs in favor of transfer to the Southern District
of New York.
8. The Forum’s Familiarity with the Governing Law
This factor is believed to be neutral for the parties, and thus should not be
considered in this analysis.
9. Trial Efficiency and the Interests of Justice
As discussed above, anticipatory actions, such as the Georgia Action, are
frowned upon as improper forum shopping. As also stated previously, to deny
Yummie Tummie’s instant motion in its entirety would reward Spanx for its bad
faith actions rather than incentivize the amicable resolution of disputes by
penalizing Yummie Tummie for attempting to resolve the dispute prior to resorting
Case 1:13-cv-00710-WSD Document 4-1 Filed 04/02/13 Page 18 of 22
-19- NY 74503821
to judicial intervention. Accordingly, this factor weighs heavily in favor of
transferring the instant action to the Southern District of New York.
In view of the foregoing, the balance of conveniences weighs heavily in
favor of the Southern District of New York as the more convenient forum to hear
this dispute.
IV. CONCLUSION
For the foregoing reasons, Yummie Tummie respectfully requests that the
Court exercise its power of discretion to grant Yummie Tummie’s Motion to
Transfer to the Southern District of New York, or in the alternative, Stay the
Georgia Action.
DATED: April 2, 2013 Respectfully submitted,
OF COUNSEL: s/Theodore H. Davis Jr.
Steven B. Pokotilow Laura Goldbard George
Theodore H. Davis Jr. Ga. Bar. No. 212913
Irah Donner Binni N. Shah STROOCK & STROOCK & LAVAN LLP 180 Maiden Lane
KILPATRICK TOWNSEND & STOCKTON LLP 1100 Peachtree Street Suite 2800
New York, NY 10038-4982 (212) 806-5400
Atlanta, GA 30309-4528 [email protected]
Attorneys for Defendant Times Three
Clothier, LLC
Case 1:13-cv-00710-WSD Document 4-1 Filed 04/02/13 Page 19 of 22
-20- NY 74503821
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SPANX, INC., ) ) Plaintiff, ) Case No. 13-CV-00710-WSD ) v. ) ) TIMES THREE CLOTHIER, LLC ) d/b/a Yummie Tummie, ) ) Defendant. )
CERTIFICATE OF COMPLIANCE
Pursuant to Local Rule 7.1D, the attached pleading complies with the
font and point selections prescribed by Local Rule 5.1B and uses 14 point Times
New Roman Font.
s/ Theodore H. Davis Jr. Theodore H. Davis Jr.
Case 1:13-cv-00710-WSD Document 4-1 Filed 04/02/13 Page 20 of 22
-21- NY 74503821
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SPANX, INC., ) ) Plaintiff, ) Case No. 13-CV-00710-WSD ) v. ) ) TIMES THREE CLOTHIER, LLC ) d/b/a Yummie Tummie, ) ) Defendant. )
CERTIFICATE OF SERVICE
I certify that on April 2, 2013, I electronically filed the foregoing document
using the CM/ECF system and have served the same document via Hand Delivery
as follows:
Natasha H. Moffitt Laura S. Huffman
King & Spalding LLP 1180 Peachtree Street, N.E. Atlanta, GA 30309-3521
And via First Class Mail:
Kathleen E. McCarthy King & Spalding LLP
1185 Avenue of the Americas New York, NY 10036
Case 1:13-cv-00710-WSD Document 4-1 Filed 04/02/13 Page 21 of 22
-22- NY 74503821
s/ Theodore H. Davis Jr. Theodore H. Davis Jr.
Case 1:13-cv-00710-WSD Document 4-1 Filed 04/02/13 Page 22 of 22
NY 74510530
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SPANX, INC, ) ) Plaintiff, ) Case No. 13-CV-00710-WSD ) v. ) ) TIMES THREE CLOTHIER, LLC ) d/b/a Yummie Tummie, ) ) Defendant. )
DECLARATION OF LAURA GOLDBARD GEORGE IN SUPPORT OF DEFENDANT TIMES THREE CLOTHIER, LLC’S MOTION TO TRANSFER, OR IN THE ALTERNATIVE, STAY THE ACTION
I, Laura Goldbard George, a partner in the law firm of Stroock & Stroock &
Lavan LLP, having offices at 180 Maiden Lane, New York, New York, am
familiar with the proceedings and documents related to the above-captioned matter,
and declare that the following is true and accurate to the best of my knowledge.
1. Attached as Exhibit 1 is a true and correct copy of a letter sent to Leslie
Slavich, Esq. from myself, dated January 18, 2013.
2. Attached as Exhibit 2 is a true and correct copy of an e-mail from myself to
Kathleen McCarthy, dated January 31, 2013 6:05 PM.
Case 1:13-cv-00710-WSD Document 4-2 Filed 04/02/13 Page 1 of 5
2
NY 74510530
3. Attached as Exhibit 3 is a true and correct copy of an email from Kathleen
McCarthy to myself, dated February 1, 2013 5:46 PM.
4. Attached as Exhibit 4 is a true and correct copy of an email from myself to
Kathleen McCarthy, dated February 4, 2013 1:48 PM.
5. Attached as Exhibit 5 is a true and correct copy of a letter that has been
redacted from Kathleen McCarthy to Steven Pokotilow and myself, dated
February 14, 2013.
6. Attached as Exhibit 6 is a true and correct copy of an email from myself to
Kathleen McCarthy and Steven Pokotilow, dated February 20, 2013 2:09 PM.
7. Attached as Exhibit 7 is a true and correct copy of an email from Kathleen
McCarthy to Steven Pokotilow and myself, dated February 20, 2013 2:34 PM.
8. Attached as Exhibit 8 is a true and correct copy of an email from Kathleen
McCarthy to Steven Pokotilow and myself, dated February 21, 2013 10:50
AM.
9. Attached as Exhibit 9 is a true and correct copy of an email from Kathleen
McCarthy to Steven Pokotilow and myself, dated February 26, 2013 8:58 AM.
10. Attached as Exhibit 10 is a true and correct copy of an email from myself to
Kathleen McCarthy, dated February 26, 2013 11:35 AM.
Case 1:13-cv-00710-WSD Document 4-2 Filed 04/02/13 Page 2 of 5
3
NY 74510530
11. Attached as Exhibit 11 is a true and correct copy of an email from Kathleen
McCarthy to Steven Pokotilow and myself, dated February 26, 2013 11:58
AM.
12. Attached as Exhibit 12 is a true and correct copy of the Complaint filed by
Times Three Clothier, LLC in the United States District Court for the Southern
District of New York on April 2, 2013, captioned Times Three Clothier, LLC
v. Spanx, Inc., Civil Action No. 13-cv-2157.
13. Attached as Exhibit 13 is a true and correct copy of the Spanx, Inc. webpage
located at http://www.spanx.com/category/index.jsp?categoryId=11585907
(last accessed April 1, 2013).
14. Attached as Exhibit 14 is a true and correct copy of the Spanx, Inc. webpage
located at http://www.spanx.com/corp/index.jsp?page=storeLocator&selected
IndexValue=&selectedStateIndexValue=&strLocator=&state=NY (last
accessed April 1, 2013).
15. Attached as Exhibit 15 is a true and correct copy of the Spanx, Inc. webpage
located at http://press.spanx.com/events/fashion-week-sept-151402-61503 (last
accessed April 1, 2013).
16. On February 22, 2013, I, along with Steven B. Pokotilow, counsel for Times
Three Clothier, LLC (“Yummie Tummie”) had a teleconference with Ms.
Case 1:13-cv-00710-WSD Document 4-2 Filed 04/02/13 Page 3 of 5
4
NY 74510530
Kathleen McCarthy, counsel for Spanx, Inc. (“Spanx”). During this
teleconference, Mr. Pokotilow and I informed Ms. McCarthy that Yummie
Tummie disagreed with the positions taken by Spanx in its February 14 Letter
(Ex. 5). We also informed Ms. McCarthy that Yummie Tummie was ready to
file suit against Spanx should the parties be unable to reach a mutually
agreeable resolution. At the end of the teleconference, Ms. McCarthy stated
that she would speak to Spanx, and that we would continue negotiations
thereafter.
17. On March 5, 2013, I, along with Mr. Pokotilow, had a second conference call
with Ms. McCarthy (see Ex. 9 which evidences delaying the teleconference at
the request of Ms. McCarthy). During this call, Ms. McCarthy disputed
certain elements of Yummie Tummie’s claim but nonetheless did advise of a
settlement framework that might be acceptable to Spanx for resolving Yummie
Tummie’s claims against Spanx. Mr. Pokotilow and I advised that we would
discuss the proposed framework with Yummie Tummie and then get back to
Ms. McCarthy with Yummie Tummie’s response. At no time during this
conversation did Ms. McCarthy indicate that settlement discussions were being
terminated or that Spanx was filing suit against Yummie Tummie on that
same day.
Case 1:13-cv-00710-WSD Document 4-2 Filed 04/02/13 Page 4 of 5
5
NY 74510530
I declare under penalty of perjury of the laws of the United States of
America that the foregoing is true and correct.
Dated: April 2, 2013 s/Laura Goldbard George Laura Goldbard George, Esq.
Case 1:13-cv-00710-WSD Document 4-2 Filed 04/02/13 Page 5 of 5
Case 1:13-cv-00710-WSD Document 4-3 Filed 04/02/13 Page 1 of 3
Exhibit 1
Case 1:13-cv-00710-WSD Document 4-3 Filed 04/02/13 Page 2 of 3
January 18, 2013
Leslie Slavich, Esq. Spanx, Inc. 3344 Peachtree Road, NE Suite 1700 Atlanta, GA 30326
STROOCK
Re: Infringement ofU.S. Design Patents Our Client/Matter No.: 002870.0001
Dear Ms. Slavich:
BY UPS COURIER
Laura Goldbard George Direct Dial 212-806-6675 Direct Fax 212-806-7675 LGoldbard@stroock. com
We represent Times Three Clothier, LLC, doing business as Yummie Tummie ("Yununie"), in connection with patent matters. As you and your client, Spanx, Inc. ("Spanx"), are aware, Yummie is the owner of U.S. Design Patent Nos. D606,285, D616,627, D622,477, D623,377, D632,051, D632,052 and D632,053 (collectively "Patents"). Copies of the Patents are attached. In fact, such Patents have been brought to Spanx's attention. Notwithstanding Spanx's knowledge of the Patents, Spanx has chosen to copy the same. Yummie vigorously enforces the rights in its patents and, as you may know, settled a patent infringement litigation with Maidenform paying Yummie $6.75 million.
More specifically, it has come to our attention that Spanx is making, offering for sale and selling shapewear products, through at least QVC, Inc., J.C. Penney Company, Inc. and Spanx's own e-commerce website, in the United States that contain Yummie's patented designs. Such shapewear products include The Total Taming Tank A226764, also known as The Spanx Total Taming Tank, the Top This Tank Style 1847 and The Top This Cami Style 1846 (collectively "Tanks/Cami"). The designs, consisting of three panels, of the Tanks/Cami are so similar to the designs claimed in the Patents that any ordinary consumer would be deceived into believing that the Tanks/Cami are, in fact, Yummie's patented designs and, thus, infringe the Patents. Stated otherwise, the Tanks/Cami appear substantially the same as the patented designs from the point of view of an ordinary observer, thereby, constituting design patent infringement.
NY 74351312v1
STHOOCK & STHOOCK & LAVAN LLP • NEW YORK • LOS ANGELES ·MIAMI
180 MAIDEN LANE, NEW YOHK, NY 10038-4982 TEL 12.806.5400 FAX 212.806.6006 WWW.STHOOCI<.COM
Case 1:13-cv-00710-WSD Document 4-3 Filed 04/02/13 Page 3 of 3
Leslie Slavich, Esq. Januaty 18, 2013 Page 2
In view of the foregoing, Yummie demands the following in writing from Spanx:
1. that Spanx cease all manufacturing, offering for sale and selling of the Tanks/ Cami;
2. all orders of Tanks/Cami shipped to customers including to whom the Tanks/Cami were shipped, the purchase order number, units, style numbers and total dollar value;
3. open orders of the Tanks/Cami not yet shipped to customers, including the purchase order number, units, style numbers and total dollar value, as well as Tanks/Cami in your warehouse, in transit and on order from the manufacturer, including the number of units, style numbers and total dollar value;
4. account for profits arising from past and ongoing infringement, including increased damages for willfully violating our client's rights in the Patents; and
5. pay Yummie costs and attorney fees in connection with this matter.
We expect to receive, by January 31, 2013, written confirmation on behalf of Spanx in regard to the foregoing and Spanx's compliance with our requests.
LGG:lm
Enclosures
cc: Carrie L. Kiedrowski, Esq. Times Three Clothier, LLC
NY 74351312v1
STROOCK & STROOCK & LAVAN LLP • NEW YORK • LOS ANGELES • 1\!IAMI
180 MAIDEN LANE, NEW YORK, NY 10038-4982 TEL 212.806.5.~00 FAX 212.806.6oo6 \VWW.STROOCK.COM
Case 1:13-cv-00710-WSD Document 4-4 Filed 04/02/13 Page 1 of 3
Exhibit 2
1
Shah, Binni N.
From: Goldbard George, Laura
Sent: Thursday, January 31, 2013 6:05 PM
To: 'McCarthy, Kathleen'
Subject: RE: Yummie Tummie Design Patents / Spanx, Inc.
Dear Katie,
I have agreed to a one week extension, until February 7, 2013, to respond to my letter.
I am available for a call next week. How about Monday at 2:00 pm?
Laura
LAURA GOLDBARD GEORGE
STROOCK & STROOCK & LAVAN LLP180 MAIDEN LANE
NEW YORK, NY 10038-4982Tel: (212) 806-6675Fax: (212) [email protected]
THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE
INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF THE RECIPIENT IS NOT THE
INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS
STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS
TRANSMISSION, PLEASE NOTIFY US BY TELEPHONE AT (212) 806-5400.
From: McCarthy, Kathleen [mailto:[email protected]]Sent: Thursday, January 31, 2013 5:49 PMTo: Goldbard George, LauraSubject: Yummie Tummie Design Patents / Spanx, Inc.
Dear Laura:
I am writing regarding your January 18, 2013 letter to Leslie Slavich of Spanx, Inc. regarding the above.
Your letter requested a response by today, January 31, 2013. King & Spalding has just been retained to represent Spanx, Inc. regarding the issues raised in your letter and I will need a little more time to review the facts with Spanx.
I would also like to discuss some initial questions I have with you. Are you available for a call next week?
Best regards, Katie
p.s. Please give my regards to Steve Pokotilow.
Case 1:13-cv-00710-WSD Document 4-4 Filed 04/02/13 Page 2 of 3
2
Kathleen E. McCarthyKing & Spalding LLP1185 Avenue of the AmericasNew York, NY 10036-4003Tel: (212) 556-2345Fax: (212) [email protected]
________________________________
King & Spalding Confidentiality Notice:
This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
Case 1:13-cv-00710-WSD Document 4-4 Filed 04/02/13 Page 3 of 3
Case 1:13-cv-00710-WSD Document 4-5 Filed 04/02/13 Page 1 of 4
Exhibit 3
Case 1:13-cv-00710-WSD Document 4-5 Filed 04/02/13 Page 2 of 4
Goldbard George, laura
From: Sent: To: Cc: Subject:
Hi Laura:
McCarthy, Kathleen <[email protected]> Friday, February 01, 2013 5:46 PM Goldbard George, Laura Pokotilow, Steven RE: Yummie Tummie Design Patents I Spanx, Inc.
That works for me just as well, but I am not sure I will be able to have a formal response to the letter until after we speak and I can review our discussion with my client. Can we also get a short further extension on the formal response, to a few days after the call?
Best regards, Katie
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 1 0036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 [email protected] www.kslaw.com
From: Goldbard George, Laura [mailto:[email protected]] Sent: Friday, February 01, 2013 2:22PM To: McCarthy, Kathleen Cc: Pokotilow, Steven Subject: RE: Yummie Tummie Design Patents I Spanx, Inc.
Katie,
Steven and I share Tin1es Three as a c11ent. When he heard that you are involved, he wants to join the call. As he will be out of the country next week, how does Monday, February 11, 2013 at 2:00pm work for our call?
Best regards.
Laura
From: McCarthy, Kathleen [mailto:[email protected]] Sent: Thursday, January 31, 2013 6:08 PM To: Goldbard George, Laura Subject: RE: Yummie Tummie Design Patents I Spanx, Inc.
Dear Laura:
Monday at 2 pm will work for me. I will give you a call then.
Best regards, Katie
1
Case 1:13-cv-00710-WSD Document 4-5 Filed 04/02/13 Page 3 of 4Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 [email protected] www.kslaw.com
From: Goldbard George, Laura [mailto:[email protected]] Sent: Thursday, January 31, 2013 6:05 PM To: McCarthy, Kathleen Subject: RE: Yummie Tummie Design Patents I Spanx, Inc.
Dear Katie~
I have agreed to a one week extension, until February 7, 2013, to respond to my letter.
I an1 available for a call next week How about Monday at 2:00 p111?
Laura
LAURA GOLDBARD GEORGE
STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE
NEvVYORK, NY 10038-4982 Tel: (212) 806-667 5 Fax: (212) 806-7675 [email protected] www.stroock.com
THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE
OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF
THE RECIPIENT IS NOT THE INTENDED RECIPIENT~ YOU AHE HEREBY NOTIFIED THAT ANY DISSEMINATION,
DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS
COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH TI-llS TRANSMISSION, PLEASE NOTIFY US BY
TELEPHONE AT (212) 806-5400.
From: McCarthy, Kathleen [mailto:[email protected]] Sent: Thursday, January 31, 2013 5:49 PM To: Goldbard George, Laura Subject: Yummie Tummie Design Patents I Spanx, Inc.
Dear Laura:
I am writing regarding your January 18, 2013 letter to Leslie Slavich of Spanx, Inc. regarding the above.
Your letter requested a response by today, January 31, 2013. King & Spalding has just been retained to represent Spanx, Inc. regarding the issues raised in your letter and I will need a little more time to review the facts with Spanx.
2
Case 1:13-cv-00710-WSD Document 4-5 Filed 04/02/13 Page 4 of 4I would also like to discuss some initial questions I have with you. Are you available for a call next week?
Best regards, Katie
p.s. Please give my regards to Steve Pokotilow.
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 kmccarthy@ kslaw .com www.kslaw.com
King & Spalding Confidentiality Notice:
This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
3
Case 1:13-cv-00710-WSD Document 4-6 Filed 04/02/13 Page 1 of 5
Exhibit 4
1
Shah, Binni N.
From: Goldbard George, Laura
Sent: Monday, February 04, 2013 1:48 PM
To: 'McCarthy, Kathleen'
Cc: Pokotilow, Steven
Subject: RE: Yummie Tummie Design Patents / Spanx, Inc.
Hi Katie,
We agree to a further extension on the formal response, on behalf of Spanx, to our letter, until February 14, 2013.
Best regards,
Laura
LAURA GOLDBARD GEORGE
STROOCK & STROOCK & LAVAN LLP180 MAIDEN LANE
NEW YORK, NY 10038-4982Tel: (212) 806-6675Fax: (212) [email protected]
THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE
INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF THE RECIPIENT IS NOT THE
INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS
STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS
TRANSMISSION, PLEASE NOTIFY US BY TELEPHONE AT (212) 806-5400.
From: McCarthy, Kathleen [mailto:[email protected]] Sent: Friday, February 01, 2013 5:46 PMTo: Goldbard George, LauraCc: Pokotilow, StevenSubject: RE: Yummie Tummie Design Patents / Spanx, Inc.
Hi Laura:
That works for me just as well, but I am not sure I will be able to have a formal response to the letter until after we speak and I can review our discussion with my client. Can we also get a short further extension on the formal response, to a few days after the call?
Best regards, Katie
Kathleen E. McCarthyKing & Spalding LLP1185 Avenue of the AmericasNew York, NY 10036-4003Tel: (212) 556-2345Fax: (212) 556-2222
Case 1:13-cv-00710-WSD Document 4-6 Filed 04/02/13 Page 2 of 5
2
From: Goldbard George, Laura [mailto:[email protected]] Sent: Friday, February 01, 2013 2:22 PMTo: McCarthy, KathleenCc: Pokotilow, StevenSubject: RE: Yummie Tummie Design Patents / Spanx, Inc.
Katie,
Steven and I share Times Three as a client. When he heard that you are involved, he wants to join the call. As he will be out of the country next week, how does Monday, February 11, 2013 at 2:00 pm work for our call?
Best regards.
Laura
From: McCarthy, Kathleen [mailto:[email protected]] Sent: Thursday, January 31, 2013 6:08 PMTo: Goldbard George, LauraSubject: RE: Yummie Tummie Design Patents / Spanx, Inc.
Dear Laura:
Monday at 2 pm will work for me. I will give you a call then.
Best regards, Katie
Kathleen E. McCarthyKing & Spalding LLP1185 Avenue of the AmericasNew York, NY 10036-4003Tel: (212) 556-2345Fax: (212) [email protected]
From: Goldbard George, Laura [mailto:[email protected]] Sent: Thursday, January 31, 2013 6:05 PMTo: McCarthy, KathleenSubject: RE: Yummie Tummie Design Patents / Spanx, Inc.
Dear Katie,
I have agreed to a one week extension, until February 7, 2013, to respond to my letter.
I am available for a call next week. How about Monday at 2:00 pm?
Laura
LAURA GOLDBARD GEORGE
STROOCK & STROOCK & LAVAN LLP
Case 1:13-cv-00710-WSD Document 4-6 Filed 04/02/13 Page 3 of 5
3
180 MAIDEN LANE
NEW YORK, NY 10038-4982Tel: (212) 806-6675Fax: (212) [email protected]
THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE
OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF
THE RECIPIENT IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION,DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS
COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS TRANSMISSION, PLEASE NOTIFY US BY
TELEPHONE AT (212) 806-5400.
From: McCarthy, Kathleen [mailto:[email protected]] Sent: Thursday, January 31, 2013 5:49 PMTo: Goldbard George, LauraSubject: Yummie Tummie Design Patents / Spanx, Inc.
Dear Laura:
I am writing regarding your January 18, 2013 letter to Leslie Slavich of Spanx, Inc. regarding the above.
Your letter requested a response by today, January 31, 2013. King & Spalding has just been retained to represent Spanx, Inc. regarding the issues raised in your letter and I will need a little more time to review the facts with Spanx.
I would also like to discuss some initial questions I have with you. Are you available for a call next week?
Best regards, Katie
p.s. Please give my regards to Steve Pokotilow.
Kathleen E. McCarthyKing & Spalding LLP1185 Avenue of the AmericasNew York, NY 10036-4003Tel: (212) 556-2345Fax: (212) [email protected]
________________________________
King & Spalding Confidentiality Notice:
This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
Case 1:13-cv-00710-WSD Document 4-6 Filed 04/02/13 Page 4 of 5
4
IRS Circular 230Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
IRS Circular 230Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
Case 1:13-cv-00710-WSD Document 4-6 Filed 04/02/13 Page 5 of 5
Case 1:13-cv-00710-WSD Document 4-7 Filed 04/02/13 Page 1 of 7
Exhibit 5
Redacted
Redacted
Redacted
Case 1:13-cv-00710-WSD Document 4-7 Filed 04/02/13 Page 2 of 7
Redacted
Case 1:13-cv-00710-WSD Document 4-7 Filed 04/02/13 Page 3 of 7
Redacted
Case 1:13-cv-00710-WSD Document 4-7 Filed 04/02/13 Page 4 of 7
Redacted
Case 1:13-cv-00710-WSD Document 4-7 Filed 04/02/13 Page 5 of 7
Redacted
Case 1:13-cv-00710-WSD Document 4-7 Filed 04/02/13 Page 6 of 7
Redacted
Redacted
Case 1:13-cv-00710-WSD Document 4-7 Filed 04/02/13 Page 7 of 7
Case 1:13-cv-00710-WSD Document 4-8 Filed 04/02/13 Page 1 of 3
Exhibit 6
1
Shah, Binni N.
From: Goldbard George, Laura
Sent: Wednesday, February 20, 2013 2:09 PM
To: 'McCarthy, Kathleen'; Pokotilow, Steven
Cc: Trademarks, NY; Moffitt, Natasha
Subject: RE: Times Three / Spanx
Dear Katie,
We would like to discuss your recent letter with you. Are you available tomorrow at 10:15 to have a telephone conference?
Laura
LAURA GOLDBARD GEORGESTROOCK & STROOCK & LAVAN LLP180 MAIDEN LANENEW YORK, NY 10038-4982Tel: (212) 806-6675Fax: (212) [email protected]
THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF THE RECIPIENT IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS TRANSMISSION, PLEASE NOTIFY US BY TELEPHONE AT (212) 806-5400.
-----Original Message-----From: McCarthy, Kathleen [mailto:[email protected]]Sent: Thursday, February 14, 2013 8:46 PMTo: Pokotilow, Steven; Goldbard George, LauraCc: Trademarks, NY; Moffitt, NatashaSubject: Times Three / Spanx
Dear Steve and Laura:
Please see the attached letter.
Best regards, Katie
Kathleen E. McCarthyKing & Spalding1185 Avenue of the Americas
Case 1:13-cv-00710-WSD Document 4-8 Filed 04/02/13 Page 2 of 3
2
New York, New York 10036General Dial: 212-556-2100Direct Dial: 212-556-2345Fax: [email protected]://www.kslaw.com
King & Spalding Confidentiality Notice:
This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
Case 1:13-cv-00710-WSD Document 4-8 Filed 04/02/13 Page 3 of 3
Case 1:13-cv-00710-WSD Document 4-9 Filed 04/02/13 Page 1 of 3
Exhibit 7
Case 1:13-cv-00710-WSD Document 4-9 Filed 04/02/13 Page 2 of 3
Goldbard George, laura
From: Sent: To: Cc: Subject:
McCarthy, Kathleen <[email protected]> Wednesday, February 20, 2013 2:34 PM Goldbard George, Laura; Pokotilow, Steven Trademarks, NY; Moffitt, Natasha Re: Times Three I Spanx
I have a call already scheduled @ 10:30 and then a lunch meeting at noon. I am free at 2 or later if that works at your end.
Best regards, Katie
Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 [email protected]
http://www.kslaw.com
-----Original Message-----From: Goldbard George, Laura [mailto:[email protected]] Sent: Wednesday, February 20, 2013 02:09PM To: McCarthy, Kathleen; Pokotilow, Steven <[email protected]>
Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx
Dear Katie,
We would like to discuss your recent letter with you. Are you available tomorrow at 10:15 to have a telephone conference?
Laura
LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038-4982 Tel: {212) 806-6675 Fax: {212) 806-7675 [email protected] www.stroock.com
1
Case 1:13-cv-00710-WSD Document 4-9 Filed 04/02/13 Page 3 of 3THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE
OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF
THE RECIPIENT IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION
OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN
ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS TRANSMISSION, PLEASE NOTIFY US BY TELEPHONE AT {212) 806-5400.
-----Original Message-----
From: McCarthy, Kathleen [mailto:[email protected]]
Sent: Thursday, February 14, 2013 8:46 PM
To: Pokotilow, Steven; Goldbard George, Laura
Cc: Trademarks, NY; Moffitt, Natasha
Subject: Times Three I Spanx
Dear Steve and Laura:
Please see the attached letter.
Best regards, Katie
Kathleen E. McCarthy
King & Spalding
1185 Avenue of the Americas
New York, New York 10036
General Dial: 212-556-2100
Direct Dial: 212-556-2345
Fax: 212-556-2222
kmcca rthy@ kslaw .com
http://www.kslaw.com
King & Spalding Confidentiality Notice:
This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is
addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise
legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy
or disseminate this message or any part of it. If you have received this message in error, please notify the sender
immediately by e-mail and delete all copies of the message.
IRS Circular 230
Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax
advice contained in this communication (including any attachment that does not explicitly state otherwise) is not
intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue
Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
2
Case 1:13-cv-00710-WSD Document 4-10 Filed 04/02/13 Page 1 of 4
Exhibit 8
Case 1:13-cv-00710-WSD Document 4-10 Filed 04/02/13 Page 2 of 4
Goldbard George, Laura
From: Sent: To: Cc:
McCarthy/ Kathleen < [email protected]> Thursday/ February 211 2013 10:50 AM Goldbard George/ Laura; Pokotilow/ Steven Trademarks/ NY; Moffitt Natasha
Subject: RE: Times Three I Spanx
Laura and Steve:
I may still be able to take this call-- will advise later-- but wanted to give you a heads up that I am at home and waiting to schedule a doctor's appointment (on hold at the moment). I managed to get a scratched cornea earlier in the week by getting poked in the eye by my little guy (not on purpose of course) with an Angry Birds valentine. You can't make this stuff up.
If the timing of the doctor's appointment works out, 3:30 will still work, and I can still speak even though my eyesight is compromised. Unless you hear from me otherwise, please call at 3:30 at 718-721-6119.
Thanks, Katie
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: {212) 556-2345 Fax: {212) 556-2222 [email protected] www.kslaw.com
-----Original Message-----From: Goldbard George, Laura [mailto:[email protected]] Sent: Wednesday, February 20, 2013 2:41 PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx
3:30 works. We will call you.
-----Original Message-----From: McCarthy, Kathleen [mailto:[email protected]] Sent: Wednesday, February 20, 2013 2:34 PM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: Re: Times Three I Spanx
I have a call already scheduled @ 10:30 and then a lunch meeting at noon. I am free at 2 or later if that works at your end.
1
Case 1:13-cv-00710-WSD Document 4-10 Filed 04/02/13 Page 3 of 4Best regards, Katie
Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 kmcca rthy@ kslaw .com http://www.kslaw.com
-----Original Message-----From: Goldbard George, Laura [mailto:[email protected]] Sent: Wednesday, February 20, 2013 02:09 PM To: McCarthy, Kathleen; Pokotilow, Steven <[email protected]> Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx
Dear Katie,
We would like to discuss your recent letter with you. Are you available tomorrow at 10:15 to have a telephone conference?
Laura
LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038-4982 Tel: (212) 806-6675 Fax: (212) 806-7675 [email protected] www.stroock.com
THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF THE RECIPIENT IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS TRANSMISSION, PLEASE NOTIFY US BY TELEPHONE AT (212) 806-5400.
-----Original Message-----From: McCarthy, Kathleen [mailto:[email protected]] Sent: Thursday, February 14, 2013 8:46 PM To: Pokotilow, Steven; Gold bard George, Laura
2
Case 1:13-cv-00710-WSD Document 4-10 Filed 04/02/13 Page 4 of 4Cc: Trademarks, NY; Moffitt, Natasha Subject: Times Three I Spanx
Dear Steve and Laura:
Please see the attached letter.
Best regards, Katie
Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 [email protected] http://www. kslaw .com
King & Spalding Confidentiality Notice:
This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
3
Case 1:13-cv-00710-WSD Document 4-11 Filed 04/02/13 Page 1 of 6
Exhibit 9
Case 1:13-cv-00710-WSD Document 4-11 Filed 04/02/13 Page 2 of 6
Goldbard George, Laura
From: Sent: To: Cc:
McCarthy, Kathleen < [email protected] > Tuesday, February 26, 2013 8:58AM Goldbard George, Laura; Pokotilow, Steven Trademarks, NY
Subject: RE: Times Three I Spanx
Hi Laura and Steve:
I had a call with the Spanx GC yesterday morning per our call on Friday and she needs to confer with the CEO. I was just advised that the meeting with the CEO can't take place until Thursday. Can we push back our call, since I won't have client instructions until Thursday? I have a court conference at noon on Friday but should be back in the office by 3:30.
Can we move our call from today to 3:30 Friday?
Thanks, Katie
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036.-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 [email protected] www.kslaw.com
-----Original Message-----From: Goldbard George, Laura [mailto:[email protected]] Sent: Thursday, February 21, 2013 4:09 PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: Re: Times Three I Spanx
Yes, that works.
LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038 Direct: 212.806.6675 Fax: 212.806.7675 [email protected] www .stroock.com
-----Original Message-----From: McCarthy, Kathleen [mailto:[email protected]] Sent: Thursday, February 21, 2013 03:35 PM To: Goldbard George, Laura; Pokotilow, Steven
1
Case 1:13-cv-00710-WSD Document 4-11 Filed 04/02/13 Page 3 of 6Cc: Trademarks, NY <[email protected]>; Moffitt, Natasha <[email protected]> Subject: RE: Times Three I Spanx
Hi Laura:
I have a court conference tomorrow at 11 in the SDNY, so I will be en route to the courthouse at 10:15 and a lunch thereafter. I could do the same time tomorrow as we had planned for today-- 3:30 --if that works for you both.
Thanks, Katie
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 [email protected] www.kslaw.com
-----Original Message-----From: Goldbard George, Laura [mailto:[email protected]] Sent: Thursday, February 21, 2013 3:28 PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx
Katie,
Steven is tried up on a call and I have a 4:00 meeting. Thus, please advise if we can re-schedule to tomorrow morning at 10:15.
Laura
-----Original Message-----From: McCarthy, Kathleen [mailto:[email protected]] Sent: Thursday, February 21, 2013 10:50 AM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx
Laura and Steve:
I may still be able to take this call-- will advise later-- but wanted to give you a heads up that I am at home and waiting to schedule a doctor's appointment (on hold at the moment). I managed to get a scratched cornea earlier in the week by getting poked in the eye by my little guy (not on purpose of course) with an Angry Birds valentine. You can't make this stuff up.
If the timing of the doctor's appointment works out, 3:30 will still work, and I can still speak even though my eyesight is compromised. Unless you hear from me otherwise, please call at 3:30 at 718-721-6119.
Thanks, Katie
2
Case 1:13-cv-00710-WSD Document 4-11 Filed 04/02/13 Page 4 of 6
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 [email protected] www.kslaw.com
-----Original Message-----From: Goldbard George, Laura [mailto:[email protected]] Sent: Wednesday, February 20, 2013 2:41 PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx
3:30 works. We will call you.
-----Original Message-----From: McCarthy, Kathleen [mailto:[email protected]] Sent: Wednesday, February 20, 2013 2:34 PM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: Re: Times Three I Spanx
I have a call already scheduled @ 10:30 and then a lunch meeting at noon. I am free at 2 or later if that works at your end.
Best regards, Katie
Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 [email protected] http:/ /www.kslaw.com
-----Original Message-----From: Goldbard George, Laura [mailto:[email protected]] Sent: Wednesday, February 20, 2013 02:09 PM To: McCarthy, Kathleen; Pokotilow, Steven <[email protected]> Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx
3
Case 1:13-cv-00710-WSD Document 4-11 Filed 04/02/13 Page 5 of 6
Dear Katie,
We would like to discuss your recent letter with you. Are you available tomorrow at 10:15 to have a telephone conference?
Laura
LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038-4982 Tel: (212) 806-6675 Fax: (212) 806-7675 [email protected] www.stroock.com
THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF THE RECIPIENT IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS TRANSMISSION, PLEASE NOTIFY US BY TELEPHONE AT (212) 806-5400.
-----Original Message-----From: McCarthy, Kathleen [mailto:[email protected]] Sent: Thursday, February 14, 2013 8:46 PM To: Pokotilow, Steven; Goldbard George, Laura Cc: Trademarks, NY; Moffitt, Natasha Subject: Times Three I Spanx
Dear Steve and Laura:
Please see the attached letter.
Best regards, Katie
Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 [email protected] http:/ /www.kslaw.com
4
Case 1:13-cv-00710-WSD Document 4-11 Filed 04/02/13 Page 6 of 6King & Spalding Confidentiality Notice:
This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
5
Case 1:13-cv-00710-WSD Document 4-12 Filed 04/02/13 Page 1 of 6
Exhibit 10
Case 1:13-cv-00710-WSD Document 4-12 Filed 04/02/13 Page 2 of 6
Goldbard George, laura
From: Goldbard George/ Laura Sent: To: Cc:
Tuesday/ February 261 2013 11:35 AM 'McCarthy/ Kathleen'; Pokotilow/ Steven Trademarks/ NY
Subject: RE: Times Three I Spanx
Katie,
Friday does not work for us. How about Tuesday at 3:30?
Laura
-----Original Message-----From: McCarthy, Kathleen [mailto:[email protected]] Sent: Tuesday, February 26, 2013 8:58AM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY Subject: RE: Times Three I Spanx
Hi Laura and Steve:
I had a call with the Spanx GC yesterday morning per our call on Friday and she needs to confer with the CEO. I was just advised that the meeting with the CEO can't take place until Thursday. Can we push back our call, since I won't have client instructions until Thursday? I have a court conference at noon on Friday but should be back in the office by 3:30. Can we move our call from today to 3:30 Friday?
Thanks, Katie
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: {212) 556-2345 Fax: {212) 556-2222 [email protected] www.kslaw.com
-----Original Message-----From: Goldbard George, Laura [mailto:[email protected]] Sent: Thursday, February 21, 2013 4:09 PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: Re: Times Three I Spanx
Yes, that works.
1
Case 1:13-cv-00710-WSD Document 4-12 Filed 04/02/13 Page 3 of 6LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038 Direct: 212.806.6675 Fax: 212.806.7675 I gold bard@ stroock.com www.stroock.com
-----Original Message-----From: McCarthy, Kathleen [mailto:[email protected]] Sent: Thursday, February 21, 2013 03:35 PM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY <[email protected]>; Moffitt, Natasha <[email protected]> Subject: RE: Times Three I Spanx
Hi Laura:
I have a court conference tomorrow at 11 in the SONY, so I will be en route to the courthouse at 10:15 and a lunch thereafter. I could do the same time tomorrow as we had planned for today-- 3:30 --if that works for you both.
Thanks, Katie
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 [email protected] www.kslaw.com
-----Original Message-----From: Goldbard George, Laura [mailto:[email protected]] Sent: Thursday, February 21, 2013 3:28PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx
Katie,
Steven is tried up on a call and I have a 4:00 meeting. Thus, please advise if we can re-schedule to tomorrow morning at 10:15.
Laura
-----Original Message-----From: McCarthy, Kathleen [mailto:[email protected]] Sent: Thursday, February 21, 2013 10:50 AM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha
2
Case 1:13-cv-00710-WSD Document 4-12 Filed 04/02/13 Page 4 of 6Subject: RE: Times Three I Spanx
Laura and Steve:
I may still be able to take this call-- will advise later-- but wanted to give you a heads up that I am at home and waiting to schedule a doctor's appointment (on hold at the moment}. I managed to get a scratched cornea earlier in the week by getting poked in the eye by my little guy (not on purpose of course} with an Angry Birds valentine. You can't make this stuff up.
If the timing of the doctor's appointment works out, 3:30 will still work, and I can still speak even though my eyesight is compromised. Unless you hear from me otherwise, please call at 3:30 at 718-721-6119.
Thanks, Katie
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212} 556-2345 Fax: (212} 556-2222 [email protected] www.kslaw.com
-----Original Message-----From: Goldbard George, Laura [mailto:[email protected]] Sent: Wednesday, February 20, 2013 2:41 PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx
3:30 works. We will call you.
-----Original Message-----From: McCarthy, Kathleen [mailto:[email protected]] Sent: Wednesday, February 20, 2013 2:34 PM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: Re: Times Three I Spanx
I have a call already scheduled @ 10:30 and then a lunch meeting at noon. I am free at 2 or later if that works at your end.
Best regards, Katie
Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036
3
Case 1:13-cv-00710-WSD Document 4-12 Filed 04/02/13 Page 5 of 6
General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 [email protected] http:/ /www.kslaw.com
-----Original Message -----From: Goldbard George, Laura [mailto:[email protected]] Sent: Wednesday, February 20, 2013 02:09 PM To: McCarthy, Kathleen; Pokotilow, Steven <[email protected]> Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx
Dear Katie,
We would like to discuss your recent letter with you. Are you available tomorrow at 10:15 to have a telephone conference?
Laura
LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038-4982 Tel: {212) 806-6675 Fax: {212) 806-7675 lgold bard@ stroock.com www.stroock.com
THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF THE RECIPIENT IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS TRANSMISSION, PLEASE NOTIFY US BY TELEPHONE AT (212) 806-5400.
-----Original Message-----From: McCarthy, Kathleen [mailto:[email protected]] Sent: Thursday, February 14, 2013 8:46 PM To: Pokotilow, Steven; Goldbard George, Laura Cc: Trademarks, NY; Moffitt, Natasha Subject: Times Three I Spanx
Dear Steve and Laura:
Please see the attached letter.
Best regards, Katie
4
Case 1:13-cv-00710-WSD Document 4-12 Filed 04/02/13 Page 6 of 6
Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 [email protected] http:/ /www.kslaw.com
King & Spalding Confidentiality Notice:
This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
5
Case 1:13-cv-00710-WSD Document 4-13 Filed 04/02/13 Page 1 of 7
Exhibit 11
Case 1:13-cv-00710-WSD Document 4-13 Filed 04/02/13 Page 2 of 7
Goldbard George, laura
From: Sent: To: Cc:
McCarthy, Kathleen < [email protected] >
Tuesday, February 26, 2013 11:58 AM Goldbard George, Laura; Pokotilow, Steven Trademarks, NY
Subject: RE: Times Three I Spanx
That should work, with the proviso that I have to start calling Queens County Court starting Friday night at 5 pm to see if I am on jury duty next week. Let's set it down for Tuesday at 3:30 and I'll let you know asap if we need an adjustment. I already postponed once, so I have to show up if my number is called. Serving as a juror (on a short civil jury trial) might actually be interesting, but they never pick me.
Thanks, Katie
-----Original Message-----From: Goldbard George, Laura [mailto:[email protected]] Sent: Tuesday, February 26, 2013 11:35 AM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY Subject: RE: Times Three I Spanx
Katie,
Friday does not work for us. How about Tuesday at 3:30?
Laura
-----Original Message-----From: McCarthy, Kathleen [mailto:[email protected]] Sent: Tuesday, February 26, 2013 8:58AM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY Subject: RE: Times Three I Spanx
Hi Laura and Steve:
I had a call with the Spanx GC yesterday morning per our call on Friday and she needs to confer with the CEO. I was just advised that the meeting with the CEO can't take place until Thursday. Can we push back our call, since I won't have client instructions until Thursday? I have a court conference at noon on Friday but should be back in the office by 3:30. Can we move our call from today to 3:30 Friday?
Thanks, Katie
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003
1
Case 1:13-cv-00710-WSD Document 4-13 Filed 04/02/13 Page 3 of 7
Tel: (212) 556-2345 Fax: (212) 556-2222 [email protected] www.kslaw.com
-----Original Message-----
From: Goldbard George, Laura [mailto:[email protected]] Sent: Thursday, February 21, 2013 4:09 PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: Re: Times Three I Spanx
Yes, that works.
LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038 Direct: 212.806.6675 Fax: 212.806.7675 I gold bard@ stroock.co m www.stroock.com
-----Original Message-----From: McCarthy, Kathleen [mailto:[email protected]] Sent: Thursday, February 21, 2013 03:35 PM To: Gold bard George, Laura; Pokotilow, Steven Cc: Trademarks, NY <[email protected]>; Moffitt, Natasha <[email protected]>
Subject: RE: Times Three I Spanx
Hi Laura:
I have a court conference tomorrow at 11 in the SONY, so I will be en route to the courthouse at 10:15 and a lunch thereafter. I could do the same time tomorrow as we had planned for today-- 3:30 -- if that works for you both.
Thanks, Katie
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 [email protected] www.kslaw.com
-----Original Message-----From: Goldbard George, Laura [mailto:[email protected]] Sent: Thursday, February 21, 2013 3:28 PM
2
Case 1:13-cv-00710-WSD Document 4-13 Filed 04/02/13 Page 4 of 7To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx
Katie,
Steven is tried up on a call and I have a 4:00 meeting. Thus, please advise if we can re-schedule to tomorrow morning at 10:15.
Laura
-----Original Message-----From: McCarthy, Kathleen [mailto:[email protected]] Sent: Thursday, February 21, 2013 10:50 AM To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx
Laura and Steve:
I may still be able to take this call-- will advise later-- but wanted to give you a heads up that I am at home and waiting to schedule a doctor•s appointment (on hold at the moment). I managed to get a scratched cornea earlier in the week by getting poked in the eye by my little guy (not on purpose of course) with an Angry Birds valentine. You can•t make this stuff up.
If the timing of the doctor•s appointment works out, 3:30 will still work, and I can still speak even though my eyesight is compromised. Unless you hear from me otherwise, please call at 3:30 at 718-721-6119.
Thanks, Katie
Kathleen E. McCarthy King & Spalding LLP 1185 Avenue of the Americas New York, NY 10036-4003 Tel: (212) 556-2345 Fax: (212) 556-2222 [email protected] www.kslaw.com
-----Original Message-----From: Goldbard George, Laura [mailto:[email protected]] Sent: Wednesday, February 20, 2013 2:41 PM To: McCarthy, Kathleen; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx
3:30 works. We will call you.
-----Original Message-----From: McCarthy, Kathleen [mailto:[email protected]] Sent: Wednesday, February 20, 2013 2:34 PM
3
Case 1:13-cv-00710-WSD Document 4-13 Filed 04/02/13 Page 5 of 7To: Goldbard George, Laura; Pokotilow, Steven Cc: Trademarks, NY; Moffitt, Natasha Subject: Re: Times Three I Spanx
I have a call already scheduled @ 10:30 and then a lunch meeting at noon. I am free at 2 or later if that works at your end.
Best regards, Katie
Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 [email protected] http:/ /www.kslaw.com
-----Original Message -----From: Goldbard George, Laura [mailto:[email protected]] Sent: Wednesday, February 20, 2013 02:09 PM To: McCarthy, Kathleen; Pokotilow, Steven <[email protected]> Cc: Trademarks, NY; Moffitt, Natasha Subject: RE: Times Three I Spanx
Dear Katie,
We would like to discuss your recent letter with you. Are you available tomorrow at 10:15 to have a telephone conference?
Laura
LAURA GOLDBARD GEORGE STROOCK & STROOCK & LAVAN LLP 180 MAIDEN LANE NEW YORK, NY 10038-4982 Tel: (212) 806-6675 Fax: (212) 806-7675 [email protected] www .stroock.com
THE INFORMATION CONTAINED IN THIS EMAIL IS PRIVILEGED AND CONFIDENTIAL AND IS INTENDED ONLY FOR THE USE OF THE INDIVIDUAL NAMED ABOVE AND OTHERS WHO HAVE BEEN SPECIFICALLY AUTHORIZED TO RECEIVE SAME. IF THE RECIPIENT IS NOT THE INTENDED RECIPIENT, YOU ARE HEREBY NOTIFIED THAT ANY DISSEMINATION, DISTRIBUTION OR COPYING OF THIS COMMUNICATION IS STRICTLY PROHIBITED. IF YOU HAVE RECEIVED THIS COMMUNICATION IN ERROR, OR IF ANY PROBLEMS OCCUR WITH THIS TRANSMISSION, PLEASE NOTIFY US BY TELEPHONE AT (212) 806-5400.
4
Case 1:13-cv-00710-WSD Document 4-13 Filed 04/02/13 Page 6 of 7
-----Original Message-----From: McCarthy, Kathleen [mailto:[email protected]] Sent: Thursday, February 14, 2013 8:46 PM To: Pokotilow, Steven; Goldbard George, Laura Cc: Trademarks, NY; Moffitt, Natasha Subject: Times Three I Spanx
Dear Steve and Laura:
Please see the attached letter.
Best regards, Katie
Kathleen E. McCarthy King & Spalding 1185 Avenue of the Americas New York, New York 10036 General Dial: 212-556-2100 Direct Dial: 212-556-2345 Fax: 212-556-2222 [email protected] http:/ /www.kslaw.com
King & Spalding Confidentiality Notice:
This message is being sent by or on behalf of a lawyer. It is intended exclusively for the individual or entity to which it is addressed. This communication may contain information that is proprietary, privileged or confidential or otherwise legally exempt from disclosure. If you are not the named addressee, you are not authorized to read, print, retain, copy or disseminate this message or any part of it. If you have received this message in error, please notify the sender immediately by e-mail and delete all copies of the message.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not
5
Case 1:13-cv-00710-WSD Document 4-13 Filed 04/02/13 Page 7 of 7intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
IRS Circular 230 Disclosure: To ensure compliance with requirements imposed by the IRS in Circular 230, we inform you that any tax advice contained in this communication (including any attachment that does not explicitly state otherwise) is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein.
6
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Exhibit 12
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 2 of 73
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
TIMES THREE CLOTHIER, LLC, Civil Action No.
Plaintiff, ------
v. JURY TRIAL DEMANDED
SPANX, INC.
Defendant.
COMPLAINT FOR PATENT INFRINGEMENT
Times Three Clothier, LLC d/b/a! Yummie Tummie ("Yummie Tummie") sues
Defendant Spanx, Inc. d/b/a Spanx by Sara Blakely ("Defendant Spanx by Sara Blakely") and,
on information and belief, alleges as follows:
Introduction
1. Yummie Tummie owns the designs claimed in United States Design Patent Nos.
606, 285 ("the '285 Patent"); 616,627 ("the '627 Patent"); 622,477 ("the '477 Patent"); 623,377
("the '377 Patent") 665,558 ("the '558 Patent") and 666,384 ("the '384 Patent") (collectively
"the patents-in-suit"). Defendant Spanx by Sara Blakely has copied Yummie Tummie's patented
designs in garments that it makes, uses, sells, and offers to sell, without Yummie Tummie's
permission, and has contributed to or induced, and continues to contribute to or induce, others to
infringe the patents-in-suit. Yummie Tummie seeks damages and/or a disgorgement of
Defendant Spanx by Sara Blakely's total profits as well as its customers' profits for patent
infringement and an injunction preventing Defendant Spanx by Sara Blakely from making,
NY74493965
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using, selling, or offering to sell, and from contributing to and inducing others to make, use, sell,
or offer to sell, Yummie Tummie's patented designs without permission.
Jurisdiction and Venue
2. This is an action for patent infringement arising under the patent laws of the
United States, 35 U.S.C. §§ 271 and 281, et seq. The Court has original jurisdiction over this
patent infringement action under 28 U.S. C. §§ 1338(a).
3. Venue is proper in this Court because Yummie Tummie is located in the Southern
District of New York and Defendant Spanx by Sara Blakely is responsible for acts of
infringement occurring in the Southern District of New York as alleged in this Complaint, and
has delivered or caused to be delivered its infringing products in the Southern District of New
York.
Plaintiff Yummie Tummie
4. Yummie Tummie is a limited liability company organized and existing under the
laws of the State ofNew York, with its principal place ofbusiness in New York, New York.
5. Yummie Tummie is an independent manufacturer of shapewear garments that
embody innovative designs that are marketed, distributed, and sold under the well-known brand
names Yummie Tummie®, Yummie by Heather Thomson®, Tummy Tank®, Tummylicious™,
RIPT Fusion® and Core Form™ (collectively, "Yummie Tummie®"). Yummie Tummie's
expansive Yummie Tummie® product line was conceived and designed by Heather Thomson, a
fashion designer and creative director who has contributed to many acclaimed fashion
collections, including Sean John by Sean Combs, Sweetface by Jennifer Lopez, and House of
DenSon by Beyonce Knowles.
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6. Yummie Tummie has invested significant time, effort and expense to protect its
innovative designs and has a patent portfolio of eleven patents, including the patents-in-suit. Ms.
Thomson's patented designs are embodied in an expansive line of Yummie Tummie® products,
all of which offer consumers attractive and fashion-forward women's shapewear. Yummie
Tummie has launched a range of Yummie Tummie® branded shapewear products based on its
patented design, including a variety of styles of tops, apparel, and intimates for women of all
sizes. Yummie Tummie's Yummie Tummie® line of shapewear is sold at such retailers as Saks
Fifth Avenue, Nordstrom, The Home Shopping Network, Bloomingdale's and Lord & Taylor.
Yummie Tummie' s Design Patents
7. The United States Patent and Trademark Office issued the '285 Patent on
December 22, 2009. A copy of the '285 Patent is attached hereto as Exhibit 1. Through
assignment, Yummie Tummie is the owner of all right, title, and interest, including rights for
past infringements, in the '285 Patent.
8. The United States Patent and Trademark Office issued the '627 Patent on June 1,
2010. A copy of the '627 Patent is attached hereto as Exhibit 2. Through assignment, Yummie
Tummie is the owner of all right, title, and interest, including rights for past infringements, in the
'627 Patent.
9. The United States Patent and Trademark Office issued the '4 77 Patent on August
31, 2010. A copy of the '4 77 Patent is attached hereto as Exhibit 3. Through assignment,
Yummie Tummie is the owner of all right, title, and interest, including rights for past
infringements, in the '4 77 Patent.
10. The United States Patent and Trademark Office issued the '377 Patent on
September 14, 2010. A copy of the '377 Patent is attached hereto as Exhibit 4. Through
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assignment, Yummie Tummie is the owner of all right, title, and interest, including rights for
past infringements, in the '3 77 Patent.
11. The United States Patent and Trademark Office issued the '558 Patent on August
21, 2012. A copy of the '558 Patent is attached hereto as Exhibit 5. Through assignment,
Yummie Tummie is the owner of all right, title, and interest, including rights for past
infringements, in the '55 8 Patent.
12. The United States Patent and Trademark Office issued the '384 Patent on
September 4, 2012. A copy of the '384 Patent is attached hereto as Exhibit 6. Through
assignment, Yummie Tummie is the owner of all right, title, and interest, including rights for
past infringements, in the '3 84 Patent.
13. Yummie Tummie has complied with the statutory requirement of placing a notice
of the patents-in-suit on all necessary garments it manufactures and sells.
Defendant Spanx by Sara Blakely and its Acts of Infringement
14. Defendant Spanx by Sara Blakely is a Georgia corporation, doing business in
New York, NY through many retailers and a showroom.
15. Defendant Spanx by Sara Blakely has used and continues to use the designs of the
patents-in-suit in products that it makes, uses, sells, and offers to sell, without Yummie
Tummie's permission, including, but not limited to, Defendant Spanx by Sara Blakely's "The
Total Taming Tank A226764," also known as "The Spanx Total Taming Tank," "the Top This
Tank Style 1847" and "The Top This Cami Style 1846" (collectively the "Infringing Garments").
16. Defendant Spanx by Sara Blakely has contributed to or induced, and continues to
contribute to or induce, others, including third party garment retailers, including, inter alia, JC
Penny, Kohl's and QVC, and garment purchasers, to infringe at least one of the patents-in-suit by
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using, offering for sale, and selling at least one of the Infringing Garments, which are copies of
Yummie Tummie's patented designs, without Yummie Tummie's permission.
17. Defendant Spanx by Sara Blakely was aware of Yummie Tummie's patents at
least as early as May 18, 2012 as a result of a letter Yummie Tummie sent to Defendant Spanx
by Sara Blakely listing certain patents-in-suit thereby providing Defendant Spanx by Sara
Blakely with actual knowledge of same.
18. On January 18, 2013, Yummie Tummie sent Defendant Spanx by Sara Blakely a
cease and desist letter, in regard to the Infringing Garments demanding that Defendant Spanx by
Sara Blakely refrain from further infringing Yummie Tummie's patents and compensate
Yummie Tummie for its past infringement. A copy of the January 18, 2013 letter is attached as
Exhibit 7. Since that time, Defendant Spanx by Sara Blakely's counsel responded to the January
18 letter which led to discussions between the parties in an attempt to resolve the matter. Prior
to initiating such discussions, Defendant Spanx by Sara Blakely's counsel requested multiple
extensions of time to respond to Yummie Tummie's letter. Yummie Tummie agreed to such
extensions based on its good faith belief that Defendant Spanx by Sara Blakely intended to
resolve the matter. However, in the midst of ongoing discussions initiated by Defendant Spanx
by Sara Blakely, Defendant Spanx by Sara Blakely filed a Declaratory Judgment action in the
Northern District of Georgia, entitled Spanx, Inc. v. Times Three Clothier, LLC, Case No. 13-cv-
00710-WSD, on March 5, 2013 without notice to Yummie Tummie. Such action by Defendant
Spanx by Sara Blakely evidences that Defendant Spanx by Sara Blakely intends to continue its
willful and intentional infringement of Yummie Tummie's design patents asserted herein.
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COUNT I (DESIGN PATENT INFRINGEMENT, 35 U.S.C. §§ 271 AND 281)
19. Yummie Tummie incorporates the allegations contained in paragraphs 1 through
18 as though fully set forth herein.
20. Defendant Spanx by Sara Blakely has been and, on information and belief, still is
making, using, offering to sell, selling, and/or importing in the United States Infringing
Garments that infringe the '285 Patent in violation of35 U.S.C. § 271(a).
21. On information and belief, Defendant Spanx by Sara Blakely has been and still is
actively inducing others to infringe the '285 Patent in violation of 35 U.S.C. § 271 (b).
22. On information and belief, Defendant Spanx by Sara Blakely's infringement has
been intentional and willful, making this an exceptional case.
23. By reason of Defendant Spanx by Sara Blakely's infringement, Yummie Tummie
has suffered, and unless Defendant Spanx by Sara Blakely's conduct is permanently enjoined,
will continue to suffer, actual damages and irreparable harm, as to which it has no adequate
remedy at law.
COUNT II (DESIGN PATENT INFRINGEMENT, 35 U.S.C. §§ 271 AND 281)
24. Yummie Tummie incorporates the allegations contained in paragraphs 1 through
18 as though fully set forth herein.
25. Defendant Spanx by Sara Blakely has been and, on information and belief, still is
making, using, offering to sell, selling, and/or importing in the United States Infringing
Garments that infringe the '627 Patent in violation of35 U.S.C. § 271(a).
26. On information and belief, Defendant Spanx by Sara Blakely has been and still is
actively inducing others to infringe the '627 Patent in violation of35 U.S.C. § 271(b).
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27. On information and belief, Defendant Spanx by Sara Blakely's infringement has
been intentional and willful, making this an exceptional case.
28. By reason of Defendant Spanx by Sara Blakely's infringement, Yummie Tummie
has suffered, and unless Defendant Spanx by Sara Blakely's conduct is permanently enjoined,
will continue to suffer, actual damages and irreparable harm, as to which it has no adequate
remedy at law.
COUNT III (DESIGN PATENT INFRINGEMENT, 35 U.S.C. §§ 271 AND 281)
29. Yummie Tummie incorporates the allegations contained in paragraphs 1 through
18 as though fully set forth herein.
30. Defendant Spanx by Sara Blakely has been and, on information and belief, still is
making, using, offering to sell, selling, and/or importing in the United States Infringing
Garments that infringe the '477 Patent in violation of 35 U.S.C. § 271(a).
31. On information and belief, Defendant Spanx by Sara Blakely has been and still is
actively inducing others to infringe the '477 Patent in violation of35 U.S.C. § 271(b).
32. On information and belief, Defendant Spanx by Sara Blakely's infringement has
been intentional and willful, making this an exceptional case.
33. By reason of Defendant Spanx by Sara Blakely's infringement, Yummie Tummie
has suffered, and unless Defendant Spanx by Sara Blakely's conduct is permanently enjoined,
will continue to suffer, actual damages and irreparable harm, as to which it has no adequate
remedy at law.
COUNT IV (DESIGN PATENT INFRINGEMENT, 35 U.S.C. §§ 271 AND 281)
34. Yummie Tummie incorporates the allegations contained in paragraphs 1 through
18 as though fully set forth herein.
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3 5. Defendant Spanx by Sara Blakely has been and, on information and belief, still is
making, using, offering to sell, selling, and/or importing in the United States Infringing
Garments that infringe the '377 Patent in violation of35 U.S.C. § 271(a).
36. On information and belief, Defendant Spanx by Sara Blakely has been and still is
actively inducing others to infringe the '377 Patent in violation of35 U.S.C. § 271(b).
37. On information and belief, Defendant Spanx by Sara Blakely's infringement has
been intentional and willful, making this an exceptional case.
38. By reason of Defendant Spanx by Sara Blakely's infringement, Yummie Tummie
has suffered, and unless Defendant Spanx by Sara Blakely's conduct is permanently enjoined,
will continue to suffer, actual damages and irreparable harm, as to which it has no adequate
remedy at law.
COUNTY (DESIGN PATENT INFRINGEMENT, 35 U.S.C. §§ 271 AND 281)
39. Yummie Tummie incorporates the allegations contained in paragraphs 1 through
18 as though fully set forth herein.
40. Defendant Spanx by Sara Blakely has been and, on information and belief, still is
making, using, offering to sell, selling, and/or importing in the United States Infringing
Garments that infringe the '558 Patent in violation of35 U.S.C. § 271(a).
41. On information and belief, Defendant Spanx by Sara Blakely has been and still is
actively inducing others to infringe the '558 Patent in violation of35 U.S.C. § 271(b).
42. On information and belief, Defendant Spanx by Sara Blakely's infringement has
been intentional and willful, making this an exceptional case.
43. By reason of Defendant Spanx by Sara Blakely's infringement, Yummie Tummie
has suffered, and unless Defendant Spanx by Sara Blakely's conduct is permanently enjoined,
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will continue to suffer, actual damages and irreparable harm, as to which it has no adequate
remedy at law.
COUNT VI (DESIGN PATENT INFRINGEMENT, 35 U.S.C. §§ 271 AND 281)
44. Yummie Tummie incorporates the allegations contained in paragraphs 1 through
18 as though fully set forth herein.
45. Defendant Spanx by Sara Blakely has been and, on information and belief, still is
making, using, offering to sell, selling, and/or importing in the United States Infringing
Garments that infringe the '384 Patent in violation of35 U.S.C. § 271(a).
46. On information and belief, Defendant Spanx by Sara Blakely has been and still is
actively inducing others to infringe the '384 Patent in violation of35 U.S.C. § 27l(b).
4 7. On information and belief, Defendant Spanx by Sara Blakely's infringement has
been intentional and willful, making this an exceptional case.
48. By reason of Defendant Spanx by Sara Blakely's infringement, Yummie Tummie
has suffered, and unless Defendant Spanx by Sara Blakely's conduct is permanently enjoined,
will continue to suffer, actual damages and irreparable harm, as to which it has no adequate
remedy at law.
PRAYER FOR RELIEF
WHEREFORE, Yummie Tummie respectfully requests that this Court:
1. Enter judgment in favor of Yummie Tummie;
2. Permanently enjoin Defendant Spanx by Sara Blakely and its predecessors,
successors, divisions, subsidiaries, or joint ventures thereof, together with any and all
parent or affiliated companies or corporations, and all officers, directors, employees,
agents, attorneys, representatives, those acting in privity or concern with Defendant
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Spanx by Sara Blakely, or on its behalf, from further infringing the '285 Patent, and
from inducing others to infringe the '285 Patent;
3. Permanently enjoin Defendant Spanx by Sara Blakely and its predecessors,
successors, divisions, subsidiaries, or joint ventures thereof, together with any and all
parent or affiliated companies or corporations, and all officers, directors, employees,
agents, attorneys, representatives, those acting in privity or concern with Defendant
Spanx by Sara Blakely, or on its behalf, from further infringing the '627 Patent, and
from inducing others to infringe the '627 Patent;
4. Permanently enjoin Defendant Sparr.x by Sara Blakely and its predecessors,
successors, divisions, subsidiaries, or joint ventures thereof, together with any and all
parent or affiliated companies or corporations, and all officers, directors, employees,
agents, attorneys, representatives, those acting in privity or concern with Defendant
Spanx by Sara Blakely, or on its behalf, from further infringing the '477 Patent, and
from inducing others to infringe the '4 77 Patent;
5. Permanently enjoin Defendant Spanx by Sara Blakely and its predecessors,
successors, divisions, subsidiaries, or joint ventures thereof, together with any and all
parent or affiliated companies or corporations, and all officers, directors, employees,
agents, attorneys, representatives, those acting in privity or concern with Defendant
Spanx by Sara Blakely, or on its behalf, from further infringing the '377 Patent, and
from inducing others to infringe the '3 77 Patent;
6. Permanently enjoin Defendant Spanx by Sara Blakely and its predecessors,
successors, divisions, subsidiaries, or joint ventures thereof, together with any and all
parent or affiliated companies or corporations, and all officers, directors, employees,
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agents, attorneys, representatives, those acting in privity or concern with Defendant
Spanx by Sara Blakely, or on its behalf, from further infringing the '558 Patent, and
from inducing others to infringe the '558 Patent;
7. Permanently enjoin Defendant Spanx by Sara Blakely and its predecessors,
successors, divisions, subsidiaries, or joint ventures thereof, together with any and all
parent or affiliated companies or corporations, and all officers, directors, employees,
agents, attorneys, representatives, those acting in privity or concern with Defendant
Spanx by Sara Blakely, or on its behalf, from further infringing the '384 Patent, and
from inducing others to infringe the '3 84 Patent;
8. Award Yummie Tummie its actual damages under 35 U.S.C. § 284 in an amount to
be determined at trial;
9. Award Yummie Tummie enhanced damages up to three times the amount found or
assessed under 35 U.S.C. § 284, as a result of Defendant Spanx by Sara Blakely's
knowing and willful infringement;
10. Award Yummie Tummie the disgorged total profits of Defendant Spanx by Sara
Blakely and its customers that sold or offered for sale the Infringing Garments under
35 U.S.C. §289 from infringing the patents-in-suit in an amount to be determined at
trial;
11. Award Yummie Tummie punitive damages because of Defendant Spanx by Sara
Blakely's knowing, willful, and deliberate bad faith acts of unfair competition in an
amount to be determined at trial;
12. Award Yummie Tummie all of its actual costs and reasonable attorneys' fees in this
action as authorized by 35 U.S.C. § 285; and
11
NY74493965
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 13 of 73
13. Grant to Yummie Tummie such other relief as may be just and warranted under the
circumstances.
JURY TRIAL DEMAND
Yummie Tummie demands a trial by jury o all issues so triable.
Dated: Apri12, 2013 By:
NY 74493965
STROOCK & STROOCK & LAVAN LLP 180 Maiden Lane New York, NY 10038 (212) 806-5400 Email: [email protected] Email: [email protected] Email: [email protected] Email: [email protected]
Attorneys for Plaintiff Times Three Clothier, LLC
12
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 14 of 73
Exhibit 1
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 15 of 73
111111 1111111111111111111111111111111111111111111111111111111111111
c12) United States Design Patent Schindler
(54) GARMENT
(75) Inventor: Heather Thomson Schindler, New York, NY (US)
(73) Assignee: Times Three Clothier LLC, New York, NY (US)
(**) Term: 14 Years
(21) Appl. No.: 29/302,500
(22) Filed: Jan.17,2008
(51) LOC (9) Cl. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 02-02 (52) U.S. Cl. ....................................................... D2/840 (58) Field of Classification Search .......... D2/700-703,
(56)
D2/731, 732, 828, 840, 718, 737, 847; 21112, 2/113; 450/96,94, 115, 116, 122-124, 127,
450/132, 154 See application file for complete search history.
References Cited
U.S. PATENT DOCUMENTS
1,977,329 A * 2,052,935 A * D110,662 S * D129,894 S * D174,115 S * 2,963,022 A * 3,026,875 A * 3,036,574 A * D211,231 S * 3,454,013 A * D234,649 S * D239,475 S * 4,916,755 A 5,915,531 A * 6,000,993 A * D452,600 S * D453,058 S * D453,255 S *
10/1934 Tobin ............................ 2/113 9/1936 Moran ......................... 450/10 7/1938 Rielly ......................... D2/714
10/1941 Abeles ........................ D2/703 3/1955 Dior ............................ D2/703
12/1960 Spetalnik ..................... 450/15 3/1962 Kaupp ........................ 450/116 511962 Jeffrey . ... .. ... ... ... ... ... .. . 450/30 6/1968 Sallysy ........................ D21702 7/1969 Cahill ........................ 450/116 4/197 5 Cascio ........................ D2/703 4/1976 Cascio ........................ D21702 4/1990 Feigenbaum eta!. 6/1999 Hilpert et a!. .. .. ... ... ... ... .. .. 2/69
12/1999 Erwin ........................... 450/7 112002 Kim ............................ D21702 112002 Kim ............................ D2/703 212002 Kim ............................ D21702
USOOD606285S
(10) Patent No.: (45) Date of Patent:
US D606,285 S ** Dec. 22, 2009
6,430,748 B1 * D556,978 S *
2007/0094765 A1 * 2008/0134409 A1
8/2002 Burkhart ....................... 2/78.1 12/2007 Thunstedt .................... D2/847
5/2007 Summers eta!. ............... 2/113 6/2008 Karasina
JP JP JP
FOREIGN PATENT DOCUMENTS
2006-316359 2007-146337 2007-303002
1112006 6/2007
1112007
* cited by examiner
Primary Examiner-Ian Simmons Assistant Examiner-Anna J Burmeister (74) Attorney, Agent, or Firm-Irah H. Donner; Wilmer Cutler Pickering Hale and Dorr LLP
(57) CLAIM
The ornamental design for a garment, as shown and described.
DESCRIPTION
FIG. 1 is a front elevation view of Embodiment 1, of a garment;
FIG. 2 is a rear elevation view thereof;
FIG. 3 is a right elevation view thereof;
FIG. 4 is a left elevation view thereof;
FIG. 5 is a right side elevation view of Embodiment 2, of a multi-fabric garment, where the front and rear elevation views are the same as FIGS. 1-2; and,
FIG. 6 is a left elevation view of Embodiment 2, of a multifabric garment.
The center section and lower section of the claimed design is shaded to illustrate contrasting materials.
The broken lines depicting the stitching shown in the drawings are for environmental structure only and form no part of the claimed design.
1 Claim, 6 Drawing Sheets
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 16 of 73
U.S. Patent Dec. 22, 2009 Sheet 1 of 6 US D606,285 S
-----------
FIG. 1
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 17 of 73
U.S. Patent Dec. 22, 2009 Sheet 2 of 6 US D606,285 S
FIG. 2
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 18 of 73
U.S. Patent Dec. 22, 2009 Sheet 3 of 6 US D606,285 S
FIG. 3
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 19 of 73
U.S. Patent Dec. 22, 2009 Sheet 4 of 6 US D606,285 S
\
FIG. 4
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 20 of 73
U.S. Patent Dec. 22, 2009 Sheet 5 of 6
~--------~~~-------r-----I I I , I
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US D606,285 S
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 21 of 73
U.S. Patent Dec. 22, 2009 Sheet 6 of 6
~-----
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US D606,285 S
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 22 of 73
Exhibit 2
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 23 of 73
I IIIII 1111111111111111111111111111111111111111111 11111111111
c12) United States Design Patent Schindler
(54) GARMENT
(75) Inventor: Heather Thomson Schindler, New York, NY (US)
(73) Assignee: Times Three Clothier, LLC., New York, NY (US)
(**) Term: 14 Years
(21) Appl. No.: 29/350,198
(22) Filed: Nov. 12, 2009
Related U.S. Application Data
(63) Continuation of application No. 29/302,500, filed on Jan. 17, 2008, now Pat. No. Des. 606,285.
(51) LOC (9) Cl. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 02-02 (52) U.S. Cl. ....................................................... D2/702 (58) Field of Classification Search .......... D2/700-703,
(56)
D2/731, 732,828,840,718,737,847, 714; 2/112, 113, 69; 450/96, 94, 115, 116, 122-124,
450/127, 132, 154, 10, 15, 30 See application file for complete search history.
References Cited
U.S. PATENT DOCUMENTS
357,068 A 570,696 A
1,774,613 A 1,931,822 A 1,977,329 A 2,052,935 A D110,662 S D128,536 S * D129,894 S 2,310,103 A 2,579,547 A * D170,694 S * D174,038 S * D174,114 S * D174,115 S D174,194 S * D177,982 S *
2/1887 Dalby 1111896 Brown 9/1930 Pidgeon
10/1933 Hoffman 10/1934 Clarke 9/1936 Moran 7/1938 Rielly 7/1941 Wei! ............................ D21702
10/1941 Abeles 2/1943 McDonald
12/1951 Cadous ....................... 450/112 10/1953 Kahn .......................... D21702 2/1955 Goldstein .................... D21702 3/1955 Dior ............................ D21702 3/1955 Dior 3/1955 Prochaska .................... D21702 6/1956 Kahn .......................... D21702
JP
USOOD616627S
(10) Patent No.: US D616,627 S ** Jun.1,2010 (45) Date of Patent:
2,963,022 A 3,026,875 A 3,036,574 A
12/1960 Spetalnik 3/1962 Kaupp 511962 Nellie
(Continued)
FOREIGN PATENT DOCUMENTS
2006-316359 1112006
(Continued)
Primary Examiner-Philip S Hyder Assistant Examiner-Anna J Burmeister (74) Attorney, Agent, or Firm-Irah H. Donner; Wilmer Culter Pickering Hale and Dorr LLP
(57) CLAIM
The ornamental design for a garment, as shown and described herein.
DESCRIPTION
FIG. 1 is a front elevation view of Embodiment 1, of a garment;
FIG. 2 is a rear elevation view thereof;
FIG. 3 is a right elevation view thereof;
FIG. 4 is a left elevation view thereof;
FIG. 5 is a right side elevation view of Embodiment 2, of a garment, where the front and rear elevation views are the same as FIGS. 1-2; and,
FIG. 6 is a left elevation view of Embodiment 2, of a garment.
The center section and lower section of the claimed design is shaded to illustrate different appearance. The broken lines shown in the drawings are for environmental structure only and form no part of the claimed design.
1 Claim, 6 Drawing Sheets
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 24 of 73
U.S. PATENT DOCUMENTS
D211,231 s 6/1968 Sallysy 3,454,013 A 7/1969 Cahill D234,649 s 4/1975 Cascio D239,475 s 4/1976 Cascio 4,916,755 A 4/1990 Feigenbaum eta!. 5,915,531 A 6/1999 Hi! pert et a!. 6,000,993 A 12/1999 Erwin D452,600 S 112002 Kim eta!. D453,058 S 112002 Kim eta!.
US D616,627 S Page 2
6,430,748 B1 D556,978 S D595,480 S *
2007/0094765 A1 2008/0134409 A1 2008/0244805 A1
8/2002 Burkhart 12/2007 Thunstedt et al. 7/2009 Giugliano .................... D21702 5/2007 Summers eta!. 6/2008 Karasina
10/2008 Griffin
FOREIGN PATENT DOCUMENTS
JP JP
2007-146337 2007-303002
6/2007 1112007
D453,255 S * 212002 Kim ............................ D21702 * cited by examiner
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 25 of 73
U.S. Patent Jun.1,2010 Sheet 1 of 6
rrl"l rr.,, I I I I II II I I I I II II II II II II II II II It II II II It II II II I I II II I I II II II I I II I I \ \ Ji I I I I 1 \ I 1 I I I I \ 1 I I I I \ I I I II \ \ I I I I II \\ // \\ II '' "'/ \\ It ',', ,."'..,/ \\ ,, ............. _____ ........... \~\
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U.S. Patent Jun.1,2010 Sheet 3 of 6
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Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 31 of 73
Exhibit 3
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 32 of 73
I IIIII 1111111111111111111111111111111111111111111 11111111111
c12) United States Design Patent Schindler
(54) GARMENT
(75) Inventor: Heather Thomson Schindler, New York, NY (US)
(73) Assignee: Times Three Clothier, LLC, New York, NY (US)
(**) Term: 14 Years
(21) Appl. No.: 29/362,498
(22)
(63)
Filed: May 26, 2010
Related U.S. Application Data
Continuation of application No. 29/362,414, filed on May 25, 2010, which is a continuation of application No. 29/350,198, filed on Nov. 12, 2009, now Pat. No. Des. 616,627, which is a continuation of application No. 29/302,500, filed on Jan. 17, 2008, now Pat. No. Des. 606,285.
(51) LOC (9) Cl. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 02-01 (52) U.S. Cl. ....................................................... D2/700 (58) Field of Classification Search .......... D2/700-703,
(56)
D2/731, 732,828,840,718,737,847, 714; 2/112, 113, 69; 450/96, 94, 115, 116, 122-124,
450/127, 132, 154, 10, 15, 30 See application file for complete search history.
References Cited
U.S. PATENT DOCUMENTS
357,068 A 2/1887 Dalby 570,696 A 1111896 Brown
1,683,510 A 9/1928 Wiese 1,774,613 A 9/1930 Pidgeon 1,931,822 A 10/1933 Hoffman 1,977,329 A 10/1934 Clarke 2,052,784 A 9/1936 Martin 2,052,935 A 9/1936 Moran Dll0,662 S 7/1938 Rielly D128,536 S 7/1941 Wei! D129,078 S 8/1941 Monteil D129,894 S 10/1941 Abeles
JP
USOOD6224 77S
(10) Patent No.: US D622,4 77 S ** Aug. 31, 2010 (45) Date of Patent:
2,310,103 A D152,981 S
2/1943 McDonald 3/1949 Kaupp
(Continued)
FOREIGN PATENT DOCUMENTS
2006-316359 1112006
(Continued)
Primary Examiner-Philip S Hyder Assistant Examiner-Anna J Burmeister (74) Attorney, Agent, or Firm-Stroock & Stroock & Lavan LLP
(57) CLAIM
The ornamental design for a garment, as shown and described herein.
DESCRIPTION
FIG. 1 is a front elevation view of embodiment 1, of a garment;
FIG. 2 is a rear elevation view thereof;
FIG. 3 is a right elevation view thereof;
FIG. 4 is a left elevation view thereof;
FIG. 5 is a right side elevation view of embodiment 2, of a garment, where the front and rear elevation views are the same as FIGS. 1-2; and,
FIG. 6 is a left elevation view of embodiment 2, of a garment.
The phantom and/or broken lines are for illustrative purposes only and form no part of the claimed design. The broken lines depicting the stitching shown in the drawings are for environmental structure only and form no part of the claimed design. The broken lines depicting the human form shown in the drawings are for environmental structure only and form no part of the claimed design.
1 Claim, 6 Drawing Sheets
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 33 of 73
U.S. PATENT DOCUMENTS
2,579,547 A 12/1951 Cadous D170,694 S 10/1953 Kahn D174,038 S 2/1955 Goldstein D174,114 S 3/1955 Dior D174,115 S 3/1955 Dior D174,194 S 3/1955 Prochaska D177,982 S 6/1956 Kahn D181,626 S 12/1957 Cassini 2,963,022 A 12/1960 Spetalnik 3,026,875 A 3/1962 Kaupp 3,036,574 A 5/1962 Nellie D211,231 s 6/1968 Sallysy 3,454,013 A 7/1969 Cahill D234,649 s 4/1975 Cascio D239,475 s 4/1976 Cascio 4,916,755 A 4/1990 Feigenbaum eta!.
US D622,477 S Page 2
5,915,531 A 6,000,993 A D452,600 S D453,058 S D453,255 S 6,430,748 B1 D556,978 S D595,480 S
2007/0094765 A1 2008/0078208 A1 2008/0134409 A1 2008/0229474 A1 2008/0244805 A1
6/1999 Hilpert et a!. 12/1999 Erwin
1/2002 Kim 112002 Kim et al. 212002 Kim et al. 8/2002 Burkhart
12/2007 Thunstedt et al. 7/2009 Giugliano 5/2007 Summers eta!. 4/2008 Kronbach 6/2008 Karasina 9/2008 Fons et a!.
10/2008 Griffin
FOREIGN PATENT DOCUMENTS
JP JP
2007-146337 2007-303002
6/2007 1112007
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 34 of 73
U.S. Patent Aug. 31, 2010 Sheet 1 of 6
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FIG. 5
US D622,4 77 S
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 39 of 73
U.S. Patent Aug. 31, 2010 Sheet 6 of 6
.... :r---. ____ T---T-rtt
·:I \ I I ··:' ~1111 1 1 I \ i
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US D622,4 77 S
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 40 of 73
Exhibit 4
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 41 of 73
I IIIII 1111111111111111111111111111111111111111111 11111111111
c12) United States Design Patent Schindler
(54) GARMENT
(75) Inventor: Heather Thomson Schindler, New York, NY (US)
(73) Assignee: Times Three Clothier, LLC, New York, NY (US)
(**) Term: 14 Years
(21) Appl. No.: 29/362,414
(22) Filed: May25, 2010
Related U.S. Application Data
(63) Continuation of application No. 29/350,198, filed on Nov. 12, 2009, now Pat. No. Des. 616,627, which is a continuation of application No. 29/302,500, filed on Jan. 17, 2008, now Pat. No. Des. 606,285.
(51) LOC (9) Cl. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 02-01 (52) U.S. Cl. ....................................................... D2/700 (58) Field of Classification Search .......... D2/700-703,
(56)
D2/731, 732,828,840,718,737,847, 714; 2/112, 113, 69; 450/96, 94, 115, 116, 122-124,
450/127, 132, 154, 10, 15, 30 See application file for complete search history.
References Cited
U.S. PATENT DOCUMENTS
357,068 A 2/1887 Dalby 570,696 A 1111896 Brown
1,683,510 A 9/1928 Wiese 1,774,613 A 9/1930 Pidgeon 1,931,822 A 10/1933 Hoffman 1,977,329 A 10/1934 Clarke 2,052,784 A 9/1936 Martin 2,052,935 A 9/1936 Moran Dll0,662 S 7/1938 Rielly D128,536 S 7/1941 Wei! D129,078 S 8/1941 Monteil D129,894 S 10/1941 Abeles 2,310,103 A 2/1943 McDonald D152,981 S 3/1949 Kaupp
JP
USOOD623377S
(10) Patent No.: US D623,377 S ** Sep. 14, 2010 (45) Date of Patent:
2,579,547 A D170,694 S
12/1951 Cadous 10/1953 Kalm
(Continued)
FOREIGN PATENT DOCUMENTS
2006-316359 1112006
(Continued)
Primary Examiner-Philip S Hyder Assistant Examiner-Anna J Burmeister (74) Attorney, Agent, or Firm-Stroock & Stroock & Lavan LLP
(57) CLAIM
The ornamental design for a garment, as shown and described herein.
DESCRIPTION
FIG. 1 is a front elevation view of Embodiment 1, of a garment;
FIG. 2 is a rear elevation view thereof;
FIG. 3 is a right elevation view thereof;
FIG. 4 is a left elevation view thereof;
FIG. 5 is a right side elevation view of Embodiment 2, of a garment, where the front and rear elevation views are the same as FIGS. 1-2; and,
FIG. 6 is a left elevation view of Embodiment 2, of a garment.
The phantom and/or broken lines are for illustrative purposes only and form no part of the claimed design. The broken lines depicting the stitching shown in the drawings are for environmental structure only and form no part of the claimed design. The broken lines depicting the human form shown in the drawings are for environmental structure only and form no part of the claimed design.
1 Claim, 6 Drawing Sheets
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 42 of 73
U.S. PATENT DOCUMENTS
D174,038 S 2/1955 Goldstein D174,114 S 3/1955 Dior D174,115 S 3/1955 Dior D174,194 S 3/1955 Prochaska D177,982 S 6/1956 Kahn D181,626 S 12/1957 Cassini 2,963,022 A 12/1960 Spetalnik 3,026,875 A 3/1962 Kaupp 3,036,574 A 5/1962 Nellie D211,231 s 6/1968 Sallysy 3,454,013 A 7/1969 Cahill D234,649 s 4/1975 Cascio D239,475 s 4/1976 Cascio 4,916,755 A 4/1990 Feigenbaum eta!. 5,915,531 A 6/1999 Hi! pert et a!.
US D623,377 S Page 2
6,000,993 A D452,600 S D453,058 S D453,255 S 6,430,748 B1 D556,978 S D595,480 S
2007/0094765 A1 2008/0078208 A1 2008/0134409 A1 2008/0229474 A1 2008/0244805 A1
12/1999 Erwin 1/2002 Kim 112002 Kim et al. 212002 Kim et al. 8/2002 Burkhart
12/2007 Thunstedt et al. 7/2009 Giugliano 5/2007 Summers eta!. 4/2008 Kronbach 6/2008 Karasina 9/2008 Fons et a!.
10/2008 Griffin
FOREIGN PATENT DOCUMENTS
JP JP
2007-146337 2007-303002
6/2007 1112007
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 43 of 73
U.S. Patent Sep.14,2010 Sheet 1 of 6 US D623,377 S
FIG. 1
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 44 of 73
U.S. Patent Sep.14,2010 Sheet 2 of 6 US D623,377 S
FIG. 2
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 45 of 73
U.S. Patent Sep.14,2010 Sheet 3 of 6 US D623,377 S
FIG. 3
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 46 of 73
U.S. Patent Sep.14,2010 Sheet 4 of 6 US D623,377 S
FIG. 4
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 47 of 73
U.S. Patent Sep.14,2010 Sheet 5 of 6 US D623,377 S
FIG. 5
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 48 of 73
U.S. Patent Sep.14,2010 Sheet 6 of 6 US D623,377 S
FIG. 6
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 49 of 73
Exhibit 5
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 50 of 73
USOOD665558S
(12) United States Design Patent Schindler
(IO) Patent No.: (45) Date of Patent:
US D665,558 S ** *Aug. 21, 2012
(54) GARMENT OTHER PUBLICATIONS
(75) Inventor: Heather Thomson Schindler, New York, NY (US)
Left-hand image on Contents page, "Self' magazine, Jan. 2006 issue.
(2 pages).*
(73) Assignee: Times Three Clothier, LLC, New York, NY (US)
(Continued)
Primary Examiner Karen E. Eldridge Powers
( * ) Notice: This patent is subject to a terminal disclaimer.
(7 4) Attorney, Agent, or Firm Stroock & Stroock & Lavan LLP
(**) Term: 14 Years
(21) Appl. No.: 29/350,288 (57) CLAIM
(22) Filed: Nov. 13, 2009 The ornamental design for a garment, as shown and described herein.
(60)
(51) (52) (58)
(56)
DE
Related U.S. Application Data
Division of application No. 29/302,500, filed on Jan. 17, 2008, now Pat. No. Des. 606,285, and a division of application No. 29/350,198, filed on Nov. 12, 2009, which is a continuation of application No. 29/302,500.
LOC (9) Cl. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 02-01 U.S. Cl. . ... ... .. ... ... ... ... ... .. ... ... ... ... .. ... ... ... ... ... . D2/701 Field of Classification Search . ... ... ... . D2/700-703,
D2/706, 708,731,732,828,840,718,737, D2/847, 714,800,717,723,756, 793,841;
450/96,94,115,116,122-124,127,132, 450/154,10,15,30,112, 1,3, 7, 11,20,
450/31, 34, 63, 64, 86, 95; 2/112, 113, 69, 2/67, 70, 73, 78.1, 78.2, 78.3, 104, 105, 109,
2/110; 66/176 See application file for complete search history.
References Cited
U.S. PATENT DOCUMENTS
26,473 A * 12/1859 Brown ............................ 450/95
(Continued)
FOREIGN PATENT DOCUMENTS
8513103.2 5/1985
(Continued)
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DESCRIPTION
This application is related to co-pending U.S. Design Application 29/350,290, filed on Nov. 13, 2009, the contents of which are hereby incorporated by reference. FIG. 1 is a front elevation view of Embodiment 1, of a garment; FIG. 2 is a rear elevation view thereof; FIG. 3 is a right elevation view thereof; FIG. 4 is a left elevation view thereof; FIG. 5 is a right side elevation view of Embodiment 2, of a garment, where the front and rear elevation views are the same as FIGS. 1-2; and, FIG. 6 is a left elevation view of Embodiment 2, of a garment. The sleeves are not shown in PIGS. 3-6 for ease of illustration. The center section and lower section of the claimed design is shaded to illustrate a different appearance. The dashed broken lines shown in the drawings illustrate environmental features that form no part of the claimed design. The dash-dot-dotdash broken lines shown at the junction of the bodice with the sleeve and the interior of the bodice represent the bounds of the design and form no part of the claimed design. The broken lines shown in the drawings are for environmental structure only and form no part of the claimed design.
1 Claim, 6 Drawing Sheets
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Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 51 of 73
US D665,558 S Page2
U.S. PATENT DOCUMENTS D234,649 S * D239,475 S * 3,949,426 A 4,377,007 A 4,916,755 A * 4,976,653 A 5,083,316 A 5,094,648 A 5,461,725 A 5,566,392 A 5,605,060 A D391,740 S 5,915,531 A * 6,000,993 A * 6,061,832 A 6,185,741 B1 6,282,720 B1 * D452,600 S * D453,058 S * D453,255 S * 6,430,748 B1 * D476,464 S 6,846,217 B1 D556,978 S * 7,395,557 B1 D595,480 S * 7,905,117 B2 *
4/1975 Cascio ........................... D2/703
240,569 A * 357,068 A * 432,442 A * 445,945 A * 570,696 A * 672,028 A * 839,699 A * 933,739 A *
1,007,047 A * 1,088,371 A * 1,110,749 A 1,121,005 A 1,191,865 A 1,249,446 A 1,323,748 A * 1,342,188 A * 1,587,099 A * 1,683,510 A * 1,770,615 A * 1,774,613 A * 1,777,215 A 1,813,043 A 1,828,310 A * 1,886,049 A 1,894,062 A * 1,897,619 A * 1,899,022 A *
D91,329 S 1,931,822 A * 1,953,797 A * 1,977,329 A * RE19,380 E * 2,000,073 A * 2,033,456 A 2,035,377 A * 2,040,058 A * 2,040,561 A * 2,052,784 A * 2,052,935 A * 2,076,748 A 2,097,777 A 2,098,881 A * 2,098,882 A * D110,662 S * 2,190,030 A D128,536 S * D129,078 S * D129,894 S * 2,274,382 A 2,310,103 A * 2,335,751 A 2,579,547 A * D170,694 S * D174,038 S * D174,114 S * D174,115 S * D174,194 S * D174,329 S * 2,723,396 A * D177,982 S * D181,626 S * 2,963,022 A * D191,347 S 3,026,875 A * 3,036,574 A * 3,060,446 A 3,066,675 A 3,217,713 A D211,231 S * 3,421,513 A 3,422,818 A 3,454,013 A * 3,479,844 A 3,556,106 A 3,582,993 A 3,683,910 A * D224,700 S * 3,699,590 A
4/1881 Appleton . .. . . . . .. . . . . .. . . . . . .. . . 66/176 2/1887 Dably ............................. 66/176 7 I 1890 Sanford . . . . . . . . . . . . . . . . . . . . . . . . . . . . 21113 2/1891 Bohne ............................. 66/176
1111896 Brown . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66/1 7 6 4/1901 Appleton . . . . . . . . . . . . . . . . . . . . . . . . 66/176
12/1906 Anderson ........................... 2/67 9/1909 Bodensiek ........................ 450/7
10/1911 Albers et al. . . . . . . . . . . . . . . . . . . . . . . 21109 2/1914 Rossiter .......................... 450/94 9/1914 De Blieux
12/1914 Farnsworth 7/1916 Workman
12/1917 Mell 12/1919 Gitenstein ........................ 2/78.3 6/1920 Jacob . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2/78.1 6/1926 Williams . . . . . . . . . . . . . . . . . . . . . . . . . 2/78.2 9/1928 Carl ................................ 450/20 7 I 1930 Herlich . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2/67 9/1930 Pidgeon .......................... 450/20 9/1930 McGill 7/1931 Foreman
10/1931 Bergh . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2/67 1111932 Rothblum
111933 Schrank .............................. 2/73 211933 Powell ................................ 2/67 211933 Duisdieker ......................... 2/67 5/1933 Redman
10/1933 Hoffman ......................... 450/95 4/1934 Daniel . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2/67
10/1934 Tobin ................................ 2/113 1111934 Craig . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2/7 8.2 511935 Goas ............................... 66/176 3/1936 Cunningham 3/1936 Redmond . . . . . . . . . . . . . . . . . . . . . . . . . 21111 511936 Craig . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 66/176 511936 Ernst ............................... 450/34 9/1936 Charles ........................... 66/176 9/1936 Moran ............................ 450/10 4/1937 Schweig
1111937 Rothman 1111937 Robbins .......................... 450/27 1111937 Robbins .......................... 450/27 7/1938 Rielly ............................ D2/714 2/1940 Kops 7 I 1941 Weil . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D2/702 8/1941 Monteil . . . . . . . . . . . . . . . . . . . . . . . . . D2/800
10/1941 Abeles ........................... D2/703 2/1942 Richman 2/1943 McDonald ........................ 2/113
1111943 Friedman 12/1951 Cadous ......................... 450/112 10/1953 Kahn ............................. D2/702 211955 Goldstein ...................... D2/702 3/1955 Dior ............................... D2/702 3/1955 Dior ............................... D2/703 3/1955 Prochaska ...................... D2/702 3/1955 Katz .............................. D2/700
1111955 Stack .............................. 450/58 6/1956 Kahn ............................. D2/702
12/1957 Cassini .......................... D2/800 12/1960 Spetalnik ........................ 450/15 9/1961 Herman 3/1962 Kaupp .......................... 450/116 511962 Jeffrey ............................ 450/30
10/1962 Horne 12/1962 Herman 4/1964 Kunel 6/1968 Sallasky . . . . . . . . . . . . . . . . . . . . . . . . . D2/702 111969 Landau 111969 Erteszek 7/1969 Cahill ........................... 450/116
1111969 Silvain 111971 Rosner 6/1971 Keller 8/1972 McKenna . . . . . . . . . . . . . . . . . . . . . . . 602/68 9/1972 Bienefeld . . . . . . . . . . . . . . . . . . . . . . D2/700
10/1972 Webber et al.
4/1976 Cascio ........................... D2/702 4/1976 George 3/1983 Sudjian 4/1990 Feigenbaum et al. .............. 2/67
12/1990 White 111992 Kuehner 3/1992 Turner
10/1995 Witczak 10/1996 Dzelzkalns 211997 Osborne 3/1998 Barrington et al. 6/1999 Hilpert et al. . . . . . . . . . . . . . . . . . . . . . . . 2169
12/1999 Erwin ............................... 450/7 5/2000 Morrison 2/2001 Kehoe 9/2001 Mayer ............................... 2/113 112002 Kim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D2/702 112002 Kim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D2/703 2/2002 Kim . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . D2/702 8/2002 Burkhart . . . . . . . . . . . . . . . . . . . . . . . . . . 2/78.1 7/2003 Jenkins 112005 Struble et al.
12/2007 Thunstedt ...................... D2/847 7/2008 Ledyard 7/2009 Giugliano . . . . . . . . . . . . . . . . . . . . . . D2/702 3/2011 Kronback . . . . . . . . . . . . . . . . . . . . . . . 66/176
2006/0242748 A1 2007/0094765 A1 * 2008/0134409 A1 * 2008/0229474 A1 * 2008/0244805 A1 *
1112006 Martz 5/2 007 Summers et al. . . . . . . . . . . . . . . . . . 21113 6/2008 Karas ina . . . . . . . . . . . . . . . . . . . . . . . . . . . 21117 9/2008 Fons et al. . . . . . . . . . . . . . . . . . . . . . . . . . 21113
1 0/2 008 Griffin . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2/7 4
DE EP EP EP EP EP EP EP EP EP GB GB GB GB GB JP JP JP JP JP JP JP JP JP JP JP wo wo
FOREIGN PATENT DOCUMENTS
202005000716 lJ1 0174179 0774241 1082951 1125566
000385562-0106 000454202-0027 000454202-0121 0006337 55-0027 000730403-0023
116526 212307
1603600 3020687 4004524 2-82707
2001-172806 2002-138302 2003-129303 A 2005-281893 A 2006-316359 2006-316359 A 2007-146337 2007-146337 A 2007-303002 2008-156812 A
96/08217 01175201
4/2005 3/1986 5/1997 3/2001 8/2001 7/2005
12/2005 12/2005 12/2006 5/2007 6/1918 3/1924
1111981 7/2005
10/2007 6/1990 6/2001 5/2002 5/2003
10/2005 * 1112006
1112006 * 6/2007
6/2007 * 1112007
7/2008 3/1996
10/2001
OTHER PUBLICATIONS
Cover and ad page picturing Serena Williams, "Lucky" magazine, Oct. 2003. (2 pages).* Mila Kunis Magazine Cover, [on-line]; [downloaded from the Internet on May 5, 2012]; [cover identified is for Oct. 2003 issue]; lJRL: <http:/ /www.whosdatedwho.com/tpx_1783/mila-kunis/ magazinecovers_13>. ( 4 pages).* Yummie Tummie and Maidenform Settle Patent Infringement and Invalidity Lawsuits, Fox News 44, PR N ewswire (20 11 ). http://www. fox44now.com/story/15242333/yummie-tummie-and-maidenformsettle-patent-infringement-and-invaliditylawsuits?clienttype=printable printed Aug. 12, 2011. Maidenform Brands, Inc. Reports Second Quarter 2011 Results and Provides Guidance for Full Year 2011, News Releases--General News, Iselin, NJ /PRNewswire via COMTEX/ Aug. 10, 2011.
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US D665,558 S Page3
Associated Press, "Maidenform 2Q net income drops on settlement,'~ Forbes.com (Aug. 10, 2011 ). http:/ /www.forbes.com/feeds/ap/20 111 08/1 0/business-specialized -consumer-services-us-earnsmaidenform_8611962.html?partner=email printed Aug. 12, 2011. Maidenform's Responses and Objections to TTC's First Set of Request for Production of Documents (Nos. 1-144) Aug. 24,2010. Maidenform's Second Set of Requests for the Production of Documents and Things (Nos. 78-123) Sep. 3, 2010. Maidenform's Second Set of Interrogatories (Nos. 16-17) Sep. 3, 2010. Maidenform's First Supplemental Responses and Objections to TTC's First Set of Interrogatories Sep. 10, 2010. TTC's Responses to Maidenform's Second Set of Requests for Production (Nos. 78-123)---0ct. 12, 2010. TTC's Written Responses to Maidenform's Second Set oflnterrogatories (Nos. 16-17). San Francisco Chronicle article MFOOO 1240-1242. Women's Wear Daily article MF0001087-1088. Oct. 12, 2010. Maidenform's Responses and Objections to TTC's Supplemental First Set of Interrogatories (Nos. 1A-18A) Nov. 2010. Donner's Objections to Maidenform's Request for Production of Documents Included in the Subpoena to I. Donner Feb. 22, 2011. lA Nike Fly Lightweight + Women's Sports Top, Nike, http:// clothing-and-accessories.become.com/nike-fly-lightweightwomens-sports-top-com ... (URL is incomplete) received by Applicant Aug. 24, 2010. 2A Pretty Shapewear Camisole, SassyBax, www.sassybax.com/ pretty-camisole.php received by Applicant Aug. 24, 2010. 3A Underwire Torso Trim, SassyBax, www.sassybax.com/ underwire trim.php received by Applicant Aug. 24, 2010. 4A The Torso Trim, SassyBax, www.sassybax.com/torso_trim. php received by Applicant Aug. 24, 2010. 5A Belly Bra, JCPenney, www.jcpenney.com/jcp/X6. aspx?DeptiD=51669&CatiD=51669&Grptyp=Siz&Item ... (URL is incomplete) received by Applicant Aug. 24,2010. 6A Secret Sculptor Tunic, Shape Fx, www.shapefx.com/store/ Shapewear_Shop_by_Category_Camis_Tanks_Se . . . (URL is incomplete) received by Applicant Aug. 24, 2010. 7 A The Skinny, www.skinnycami.biz/files/ received by Applicant Aug. 24, 2010. 8A Slimplicity Lingerie Strap Camisole, Spanx, www.spanx.com/ product/index.jsp?productld=3977353&cp=2992553.40 15964&par ... (URL is incomplete) received by Applicant Aug. 24, 2010. 9 A Hide & Sleek Cami, Spanx, http:/ /web.archive.org/ ... (URL is incomplete) received by Applicant Aug. 24, 2010. lOA Hide & Sleek Full Slip 18 Inch 060A, Spanx, www.herroom. com/Spanx-060A-Hide-Sleek-Full-Slip-18-Inch.shtml received by Applicant Aug. 24, 2010. llA Teez-Her The Skinny Tank, Teez-Her, www.essentialapparel. com/index.cfm/a/catalog.prodshow/vid/72638/catid/267/Teez ... (URL is incomplete) received by Applicant Aug. 24,2010. 12A Cami-Rolls, http:/ /camirolls.com/shop.shtml received by Applicant Aug. 24, 2010. 13A TummyTee, www.redefyne.com/tummytee.html received by Applicant Aug. 24, 2010. 14A Champion Seamless Empire Top with Built-In Sports Bra, Champion, www.championusa.com/Champion/Products/WomenChampion/Women_ShopByCa ... (URL is incomplete) received by Applicant Aug. 24, 2010. 15A Cosabella Smooth Bodyshaper Cami SHPE702, CosaBella, www.herroom.com/Cosabella-Shpe702-Smooth-BodyshaperCami.shtml received by Applicant Aug. 24, 2010. 16A Daisy Fuentes Slimming Camisole, Kohls, www.kohls.com/ upgrade/webstore/product_page.j sp?Product%3C %3Eprd_id=8 received by Applicant Aug. 24, 2010. 17 A 582L Countouring Balconet Bra Cami-Long Torso, Dumi Shapewear, www.du-mi.com/store/product-info.php?pidl2.html received by Applicant Aug. 24, 2010. 18A Very Precious, Great Glam, http://greatglam.com/pd-veryprecious.cfm received by Applicant Aug. 24, 2010. 19A Sensual Charm, Great Glam, http://greatglam.com/pd-sensual-charml.cfm received by Applicant Aug. 24, 2010.
20A Yalof Schwartz, Suze, "Too Busy for the Gym?'~ Glamour, www.glamour.com/fashion/blogs/ slaves-to-fashion/2007 I 1 0/toobus ... (URL is incomplete) received by Applicant Aug. 24, 2010. Page shown present on Internet approximately Oct. 2007. 21A Underwire Torso Trim, Sassybax, http:/ /webarchive.orglweb/ 20071020033219/sassybax.com received by Applicant Aug. 24, 2010. Page shown present on Internet on Oct. 20, 2007. 22A Nancy Ganz The Belly Band Convertible Bodybriefer 3313, Nancy Ganz, www.herroom.com/NancyGanz ... (URL is incomplete) received by Applicant Aug. 24, 2010. Page shown present on Internet on Nov. 25, 2007. 23A Spanx Hide & Sleek Full Slip 060A, Spanx, www.herroom. com/Spanx-Hide ... (URL is incomplete) received by Applicant Aug. 24, 2010. Page shown on Internet on Nov. 1, 2007. 24A Spanx Hide & Sleek Cami 050, Spanx, www.herroom.com/ Spanx ... (URL is incomplete) received by Applicant Aug. 24, 2010. Page shown present on Internet on Oct. 30, 2007. 25Aa, 25Ab. 25Ac-Collection of Photographs received by Applicant on Dec. 8, 2010 received by Applicant Aug. 24,2010. 26A Alleged Ann Mason Receipt; Nov. 26, 2006. 27Aa, 27Ab Declaration of Ann Mason; May 19,2007. 28A Yummie Tummie and Maidenform Settle Patent Infringement and Invalidity Lawsuits, Fox News 44, PR Newswire (2011). http:// www.fox44now.com/story/ 15242333/yummie-tummie-andmaidenform -settle-patent-infringement -and-invaliditylawsuits?clienttype=printable printed Aug. 12, 2011. 29 A Maidenform Brands, Inc. Reports Second Quarter 20 11 Results and Provides Guidance for Full Year 2011, News ReleasesGeneral News, Iselin, NJ /PRNewswire via COMTEX/ Aug. 10, 2011. 30A Associated Press, "Maidenform 2Q net income drops on settlement," Yahoo News (Aug. 10, 2011 ). http:/ I news.yahoo.com/ maidenform-2q-net-income-drops-settlement-125621767 .htmlprintedApr. 20, 2012. 1 Email from Christine Conforte to Heather Schindler "FW: Tummy Tee," sent Dec. 1, 2006. 2 Email from Christine Conforte to Heather Schindler "Liz Lange," sent Dec. 13, 2006. 3 Email from Heather Schindler to Chistine Conforte "Liz Lange," sent Dec. 13, 2006. 4 Email from Christine Conforte "Liz Lange," sent Dec. 11, 2006. 5 Email from Heather Schindler to Christine Conforte "Liz Lange," sent Dec. 9, 2006. 6 Email from Christine Conforte to Heather Schindler "Liz Lange," sent Dec. 7, 2006. 7 Email from Heather Schindler to Christine Conforte "Liz Lange," sent Dec. 7, 2006. 8 Email from Christine Conforte to Heather Schindler, "Liz Lange," sent Dec. 6, 2006. 9 Email from Heather Schindler to Liz Lange copying Michelle Mooring and Christine Conforte, "Follow Up," sent Jan. 24, 2007. 10 Email from Liz Lange to Heather Schindler copying Christine Conforte and Michelle Mooring, "Follow Up," sent Jan. 23, 2007. 11 Email from Heather Schindler to Liz Lange copying Christine Conforte and Michelle Mooring, "Follow Up," sent Jan. 23, 2007. 12 Email from Liz Lange to Heather Schindler copying Christine Conforte "Follow Up," sent Jan. 19, 2007. 13 Email from Heather Schindler to Christine Conforte copying Michelle Mooring "FW: TummyTube,'~ sent Jan. 31, 2007. 14 Email from Christine Conforte to Heather Schindler copying Liz Lange "Tummy Tube," sent Jan. 30, 2011. 15 Email from Heather Schindler to Liz Lange copying Michelle Mooring and Christine Conforte "TummyTube," sent Feb. 6, 2007. 16 Email from Liz Lange to Heather Schindler and Christine Conforte "TummyTube,'~ sent Feb. 2, 2007. 17 Email from Heather Schindler to Christine Conforte copying Liz Lange "TummyTube," sent Feb. 2, 2007. 18 Email from Christine Conforte to Heather Schindler copying Liz Lange "TummyTube," sent Jan. 30, 2007. 19 "Style Spy," Lucky Magazine, p. 26, Jan. 2002 issue. 20 LeCove swimwear catalog, p. 26 received by Applicant Aug. 24, 2010.
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 53 of 73
US D665,558 S Page4
21 JC Penney maternity catalog, p. 165 received by Applicant Aug. 24, 2010. 22 WWD Intimates catalog, cover received by Applicant Aug. 24, 2010. 23 "Fashion Q & A,'' Shape Magazine, p. 68. Jan. 2008 issue. 24 Vogue Magazine, vol. 15, cover received by Applicant Aug. 24, 2010. 25 "Self Selects," Self Magazine, p. 162. Jun. 2000 issue. 26 "Do good while you shop," Lucky Magazine, p. 286. Oct. 2006 • ISSUe.
27 "Photo Finish," WWD Intimates catalog. 2006. 28 "Shapewear Report," In Style Magazine, pp. 338-346. Sep. 2007 issue. 29 Self Magazine advertisements. Jun. 2007 issue. 30 Self Magazine, p. 33. Dec. 2007 issue. 31 "My best stress bust is ... ," Self Magazine, p. 200. Apr. 2002 • ISSUe.
32 Times Three Clothier, LLC Sales Order No. 1000, Sales Order Date Apr. 30, 2007. 33 Email from Ivan A. Saperstein to Heather Schindler copying Michelle Mooring and J. Schindler "Gatsby's" sent Jul. 20, 2007. 34 Email from Heather Schindler to Ivan A. Saperstein copying Michelle Mooring and J. Schindler "Gatsby's" Jul. 20, 2007. 3 5 Email from Ivan A. Saperstein to Michelle Mooring, Heather Schindler and J. Schindler "Gatsby's" Jul. 20, 2007. 36 Invoice billed and shipped to Seams Beautiful-Carolyn Weaver, Invoice# 00006138, Aug. 11, 2006. 37 Invoice billed and shipped to Seams Beautiful-Carolyn Weaver, Invoice# 00006155, Aug. 25, 2006. 38 Packing Slip to Seams Beautiful, Aug. 25, 2006. 39a, 39b, 39c, 39d, 39e, 39f, 39g, 39h, 39i Maidenform v. Times Three Clothier LLC d/b/a Yummie Tummie, Case No. 10-cv-1661 (GBD) SkinnyCami Declarations. pp. 1-118 (submitted in 9parts) received by Applicant Dec. 14, 2010. 40 Applicant's Specifications. pp.1-3 (submitted in 1 part) dated May 24, 2007 -Jun. 11, 2007.
41 Maidenform's Initial Disclosures Jul. 9, 2010. pp. 1-13 (submitted in 1 part). 42 Maidenform's Responses and Objections to TTCc's First Set of Interrogatories (Nos. 1-18) Aug. 24,2010. pp. 1-12 (submitted in 1 part). 43 Skinny Camisole Slimmer Corset Shaper Girdle, http:/ /co 1 03w. co1103.mail.live.com/mail/RteTrame_15.1.3059.0405.html?pf pf (URL is incomplete). Pages 1-3 (submitted in 1 part) received by Applicant Aug. 24, 2010 . 44a, 44b, 44c Applicant's Tummy Tees. pp. 1-3 (submitted in 3 parts). 6Ba is Applicant's Tummy Tee early prototype sewn in Feb./ Mar. 2005. 6Bb and6Bc are photos of Applicant's production sample first received May 30, 2007. 45---Gazelle Sleeveless Long Shirt, Adidas, www.shopadidas.com/ product/index.j sp?productiD=3847890&v2=y&cp=37 4817 5.3 . . . (URL is incomplete) received by Applicant Aug. 24,2010 . 46 Super Soft Slimmer Tank, MyShape, www.myshape.com/shop/ style/ 11906?ci_sku= 11906&utm_source ... (URL is incomplete) received by Applicant Aug. 24, 2010. 47 Ann Michell Spaghetti Strap Tank Top Style 982, Lauren Silva, www.laurensilva.com/ Ann_Michell_Spaghetti_Strap_Camisole_Control_Shirt_p/an ... (URL is incomplete) received by Applicant Aug. 24, 2010. 48 New Marilyn Monroe Smoothing Camisole 7762, ebay, www. cgi.ebay.com/New-Marilyn-Monroe-Smoothing-Camisole-7762-28 . .. (URL is incomplete) received by Applicant Aug. 24,2010. 49 Nancy Ganz The Belly Band Convertible Bodybriefer 3313, Her Room, www.herroom.com/Nancy-Ganz-3313-The-Belly-BandConvertible-Bodyvriefer.sht ... (URL is incomplete) received by Applicant Aug. 24, 2010. 50 Nike Seamless Airborne Women's Long Tank Top, Nike, http:// store.nike.com/us/en_us/?l=shop,pdp,ctr-inline/cid-1/pid-282277/ pgid-238467 received by Applicant Aug. 24, 2010.
* cited by examiner
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Exhibit 6
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 61 of 73
(12) United States Design Patent Schindler
(54) GARMENT
(75) Inventor: Heather Thomson Schindler, New York, NY (US)
(73) Assignee: Times Three Clothier, LLC, New York, NY (US)
(**) Term: 14 Years
(21) Appl. No.: 29/392,830
(22) Filed: May 26, 2011
(60)
(51) (52) (58)
(56)
DE
Related U.S. Application Data
Continuation of application No. 29/350,290, filed on Nov. 13, 2009, now abandoned, which is a division of application No. 29/302,500, filed on Jan. 17, 2008, now Pat. No. Des. 606,285, said application No. 29/392,830 is a continuation of application No. 29/350,288, filed on Nov. 13, 2009, which is a division of application No. 29/302,500.
LOC (9) Cl. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 02-01 U.S. Cl. . ... ... .. ... ... ... ... ... .. ... ... ... ... .. ... ... ... ... ... . D2/701 Field of Classification Search . . . . . . . . . . . . . . . . . . . D2/700,
D2/701, 702,703,706, 708, 714, 717, 718, D2/723, 731, 732, 756, 793, 800, 828, 840, D2/841, 847; 2/67, 69, 70, 73, 78.1, 78.2,
2/7 8 .3' 1 04' 1 0 5' 1 09' 11 0' 112' 113; 6 6/ 17 6; 450/1,3, 7, 10, 11, 15,20,30,31,34,63,
450/64,86,94,95,96,112,115,116,122, 450/123, 124, 127, 132, 154
See application file for complete search history.
References Cited
U.S. PATENT DOCUMENTS
357,068 A 2/1887 Dalby
(Continued)
FOREIGN PATENT DOCUMENTS
G8513103.2 8/1985
(Continued)
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USOOD666384S
(IO) Patent No.: US D666,384 S ** Sep. 4, 2012 (45) Date of Patent:
OTHER PUBLICATIONS
Left-hand image on Contents page, "Self' magazine, Jan. 2006 issue. (2 pages).*
(Continued)
Primary Examiner Karen E Eldridge Powers (7 4) Attorney, Agent, or Firm Stroock & Stroock & Lavan LLP
(57) CLAIM I claim the ornamental design for a garment, as shown and described.
DESCRIPTION
This application is related to the following applications: U.S. Design application Ser. No. 29/362,414, filed on May 25, 2010 now U.S. Pat. No. D623,377, U.S. Design application Ser. No. 29/362,498, filed on May 26, 2010 now U.S. Pat. No. D622,477, U.S. Design application Ser. No. 29/350,198, filed on Nov. 12, 2009 now U.S. Pat. No. D616,627, the contents of each of the above applications are hereby incorporated by reference. FIG. 1 is a front elevation view of embodiment 1, of a garment; FIG. 2 is a rear elevation view thereof; FIG. 3 is a right elevation view thereof; FIG. 4 is a left elevation view thereof; FIG. 5 is a right side elevation view of embodiment 2, of a garment, where the front and rear elevation views are the same as FIGS. 1-2; and, FIG. 6 is a left elevation view of embodiment 2, of a garment. The dashed broken lines depicting stitching and the human form shown in the drawings are for environmental structure only and form no part of the claimed design. The dash-dotdot-dash broken lines shownatthejunctionofthe bodice with the sleeve and the interior of the bodice represent the bounds of the design and form no part of the claimed design.
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U.S. PATENT DOCUMENTS 6,846,217 B1 D521,712 S * 7,115,015 B2 * 7,181,775 B2 * D556,978 S 7,395,557 B1 D595,480 S RE41,654 E * 7,878,881 B2 * 7,900,276 B2 * D644,411 S * D644,412 S *
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570,696 A 709,200 A * 933,739 A
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D91,329 S 1,931,822 A 1,977,329 A 2,033,456 A 2,040,058 A 2,040,657 A * 2,052,935 A 2,076,748 A 2,097,777 A D110,662 S D111,201 S * 2,190,030 A D128,536 S D129,894 S 2,274,382 A 2,310,103 A 2,335,751 A * 2,579,547 A D170,694 S D174,038 S D174,114 S D174,115 S D174,194 S D177,982 S 2,963,022 A 2,976, 708 A * D191,347 S 3,026,875 A 3,036,574 A 3,060,446 A 3,066,675 A 3,217,713 A D211,231 S 3,421,513 A 3,422,818 A 3,454,013 A 3,479,844 A 3,490,449 A * 3,556,106 A 3,582,993 A 3,699,590 A D234,649 S D239,475 S 3,949,426 A 4,377,007 A 4,916,755 A 4,976,653 A 5,083,316 A 5,094,648 A 5,461,725 A 5,566,392 A 5,605,060 A 5,667,422 A * D391,740 S D393,736 S * 5,772,492 A * 5,915,531 A 6,000,993 A 6,061,832 A 6,185,741 B1 D452,600 S D453,058 S D453,255 S 6,430,748 B1 D476,464 S 6,766,533 B1 *
1111896 Brown 9/1902 Buckley . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2/73 9/1909 Bodensiek 9/1914 De Blieux
12/1914 Farnsworth 7/1916 Workman
12/1917 Mell 9/1928 Wiese ............................. 450/20 9/1930 Pidgeon 9/1930 McGill 7/1931 Foreman
1111932 Rothblum 5/1933 Redman
10/1933 Hoffman 10/1934 Tobin 3/1936 Cunningham 5/1936 Mendel et al. 5/1936 Kops et al. .................... 139/421 9/1936 Moran 4/1937 Schweig
1111937 Rothman 7/1938 Rielly 9/1938 !merman ........................ D2/723 2/1940 Kops 7/1941 Weil
10/1941 Abeles 2/1942 Richman 2/1943 McDonald
1111943 Friedman ............................ 2/73 12/1951 Cadous 10/1953 Kahn 2/1955 Goldstein 3/1955 Dior 3/1955 Dior 3/1955 Prochaska 6/1956 Kahn
12/1960 Spetalnik 3/1961 Gordon ........................... 66/176 9/1961 Herman 3/1962 Kaupp 5/1962 Jeffrey
10/1962 Horne 12/1962 Herman 1111965 Kunel 6/1968 Salisky 111969 Landau 111969 Erteszek 7/1969 Cahill
1111969 Silvain 111970 Ewehvahn .................... 450/155 111971 Rosner 6/1971 Keller
10/1972 Webber et al. 4/197 5 Lo Cascio 4/1976 LoCascio 4/1976 George 3/1983 Sudjian 4/1990 Feigenbaum et al.
12/1990 White 111992 Kuehner 3/1992 Turner
10/1995 Witczak 10/1996 Dzelzkalns 211997 Osborne 9/1997 Erwin ............................. 450/30 3/1998 Barrington et al. 4/1998 Rubin . . . . . . . . . . . . . . . . . . . . . . . . . . . . D2/717 6/1998 Erwin ............................. 450/30 6/1999 Hilpert et al.
12/1999 Erwin 5/2000 Morrison 2/2001 Kehoe 112002 Kim 112002 Kim 2/2002 Kim 8/2002 Burkhart 7/2003 Jenkins 7/2004 Meier et al. . . . . . . . . . . . . . . . . . . . . . . . . . 2/67
5/2006 Overby . . . . . . . . . . . . . . . . . . . . . . . . . . D2/717 10/2006 Horii et al. ...................... 450/33 2/2007 Carney . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2/311
12/2007 Thunstedt 7/2008 Ledyard 7/2009 Giugliano 9/2010 Struble et al .................... 450/31 2/2011 Hendrickson ................... 450/36 3/2011 Hendrickson et al ............. 2/237 9/2011 Guerrier . . . . . . . . . . . . . . . . . . . . . . . . D2/703 9/2011 Reuther . . . . . . . . . . . . . . . . . . . . . . . . . D2/714
200110054303 A1 * 2004/0163159 A1 * 2006/0242748 A1 2007/0094765 A1 2007/0118062 A1 * 2008/0078208 A1 * 2008/0134409 A1 2008/0244805 A1 2009/0299258 A1 * 201110061147 A1 *
12/2 00 1 Browder, Jr. . . . . . . . . . . . . . . . . . . . . 66/1 71 8/2004 Edwards et al. . ................. 2/338
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10/2008 Griffin 12/2009 Cureington-Sims ............ 602/61 3/2011 Welfeld . . . . . . . . . . . . . . . . . . . . . . . . . . . . 2/237
DE EP EP EP EP EP EP EP EP EP GB GB GB GB GB JP JP JP JP JP JP JP JP JP wo wo
FOREIGN PATENT DOCUMENTS
202005000716 lJ1 0174179 0774241 1082951 1125566
000385562-0106 000454202-0027 000454202-0121 0006337 55-0027 000730403-0023
116526 212307
1603600 3020687 4004524 2-82707
2001-172806 2002-138302 2003-129303 A 2005-281893 A 2006-316359 A 2007-146337 A 2007-303002 2008-156812 A
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4/2005 3/1986 5/1997 3/2001 8/2001 7/2005
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1111981 7/2005
10/2007 6/1990 6/2001 5/2002 5/2003
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1112007 7/2008 3/1996
10/2001
OTHER PUBLICATIONS
Cover and ad page picturing Serena Williams, "Lucky" magazine, Oct. 2003. (2 pages).* Mila Kunis Magazine Cover, [on-line]; [downloaded from the Internet on May 5, 2012]; [cover identified is for Oct. 2003 issue]; lJRL: <http:/ /www.whosdatedwho.com/tpx_1783/mila-kunis/ magazinecovers_13>. ( 4 pages).* Maidenform Brands, Inc. Reports Second Quarter 2011 Results and Provides Guidance for Full Year 2011, News Releases--General News, Iselin, NJ /PRNewswire via COMTEX/ Aug. 10, 2011. Associated Press, "Maidenform 2Q net income drops on settlement," Forbes.com (Aug. 10, 2011). http://www.forbes.com/feeds/ap/20 111 08/1 O/business-specialized-consumer-services-us-earnsmaidenform_8611962.html?partner=email printedAug. 12,2011. Maidenform's Responses and Objections to TTC's First Set of Requests for Production of Documents (Nos. 1-144) Aug. 24, 2010. Maidenform's Second Set of Requests for the Production of Documents and Things (Nos. 78-123) Sep. 3, 2010. Maidenform's Second Set of Interrogatories (Nos. 16-17) Sep. 3, 2010. Maidenform's First Supplemental Responses and Objections to TTC's First Set of Interrogatories Sep. 10, 2010. TTC's Responses to Maidenform's Second Set of Requests for Production (Nos. 78-123)---0ct. 12, 2010.
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US D666,384 S Page3
TTC's Written Responses to Maidenform's Second Set oflnterrogatories (Nos. 16-17). San Francisco Chronicle article MFOOO 1240-1242. Women's Wear Daily article MF0001087-1088. Oct. 12, 2010. Maidenform's Responses and Objections to TTC's Supplemental First Set of Interrogatories (Nos. 1A-18A) Nov. 26, 2010. I. Donner's Objections to Maidenform's Request for Production of Documents Included in the Subpoena to I. Donner Feb. 22, 2011. Email from Christine Conforte to Heather Schindler "FW: Tummy Tee," sent Dec. 1, 2006. Email from Christine Conforte to Heather Schindler "Liz Lange,', sent Dec. 13, 2006. Email from Heather Schindler to Chistine Conforte "Liz Lange," sent Dec. 13, 2006. Email from Christine Conforte "Liz Lange," sent Dec. 11, 2006. Email from Heather Schindler to Christine Conforte "Liz Lange,', sent Dec. 9, 2006. Email from Christine Conforte to Heather Schindler "Liz Lange,', sent Dec. 7, 2006. Email from Heather Schindler to Christine Conforte "Liz Lange,', sent Dec. 7, 2006. Email from Christine Conforte to Heather Schindler, "Liz Lange,', sent Dec. 6, 2006 Email from Heather Schindler to Liz Lange copying Michelle Mooring and Christine Conforte, "Follow Up,', sent Jan. 24, 2007. Email from Liz Lange to Heather Schindler copying Christine Conforte and Michelle Mooring, "Follow Up,', sent Jan. 23, 2007. Email from Heather Schindler to Liz Lange copying Christine Conforte and Michelle Mooring, "Follow Up,', sent Jan. 23, 2007. Email from Liz Lange to Heather Schindler copying Christine Conforte "Follow Up,', sent Jan. 19, 2007. Email from Heather Schindler to Christine Conforte copying Michelle Mooring "FW: TummyTube," sent Jan. 31, 2007. Email from Christine Conforte to Heather Schindler copying Liz Lange "Tummy Tube,', sent Jan. 30, 2011. Email from Heather Schindler to Liz Lange copying Michelle Mooring and Christine Conforte "TummyTube," sent Feb. 6, 2007. Email from Liz Lange to Heather Schindler and Christine Conforte "TummyTube," sent Feb. 2, 2007. Email from Heather Schindler to Christine Conforte copying Liz Lange "TummyTube,', sent Feb. 2, 2007. Email from Christine Conforte to Heather Schindler copying Liz Lange "TummyTube,', sent Jan. 30, 2007. "Style Spy,', Lucky Magazine, p. 26, Jan. 2002 issue. LeCove swimwear catalog, p. 26 received by Applicant Aug. 24, 2010. JC Penney maternity catalog, p. 165 received by Applicant Aug. 24, 2010. WWD Intimates catalog, cover received by Applicant Aug. 24,2010. "Fashion Q & A,', Shape Magazine, p. 68. Jan. 2008 issue. Vogue Magazine, vol. 15, cover received by Applicant Aug. 24, 2010. "Self Selects,', Self Magazine, p. 162. Jun. 2000 issue. "Do good while you shop," Lucky Magazine, p. 286. Oct. 2006 issue. "Photo Finish," WWD Intimates catalog. 2006. "Shapewear Report," In Style Magazine, pp. 338-346. Sep. 2007 • ISSUe.
Self Magazine advertisements. Jun. 2007 issue. Self Magazine, p. 33. Dec. 2007 issue. "My best stress bust is ... ,',Self Magazine, p. 200. Apr. 2002 issue. Times Three Clothier, LLC Sales Order No. 1000, Sales Order Date Apr. 30, 2007. Email from Ivan A. Saperstein to Heather Schindler copying Michelle Mooring and J. Schindler "Gatsby's" sent Jul. 20, 2007. Email from Heather Schindler to Ivan A. Saperstein copying Michelle Mooring and J. Schindler "Gatsby's" Jul. 20, 2007. Email from Ivan A. Saperstein to Michelle Mooring, Heather Schindler and J. Schindler "Gatsby's', Jul. 20, 2007. Invoice billed and shipped to Seams Beautiful-Carolyn Weaver, Invoice# 00006138, Aug. 11, 2006. Invoice billed and shipped to Seams Beautiful Carolyn Weaver, Invoice# 00006155, Aug. 25, 2006. Packing Slip to Seams Beautiful, Aug. 25, 2006.
M aidenform v. Times Three Clothier LLC dlb/ a Yummie Tummie, Case No. 10-cv-1661 (GBD) SkinnyCami Declarations. pp. 1-118 (submitted in 9 parts) received by Applicant Dec. 14, 2010. Applicant's Specifications. pp 1-3 (submitted in 1 part) dated May 24, 2007 -Jun. 11, 2007. Mai denform' s Initial Disclosures Jul. 9, 20 1 0. pp. 1-13 (submitted in 1 part). Maidenform's Responses and Objections to TTC's First Set of Interrogatories (Nos. 1-18) Aug. 24, 2010. pp. 1-12 (submitted in 1 part). Skinny Camisole Slimmer Corset Shaper Girdle, http://co103w. co1103.mail.live.com/mail/RteTrame_15.1.3059.0405.html?pf pf (URL is incomplete). pp. 1-3 (submitted in 1 part) received by Applicant Aug. 24, 2010. Applicant's Tummy Tees. pp. 1-3 (submitted in 3 parts). 6Ba is Applicant's Tummy Tee early prototype sewn in Feb./Mar. 2005. 6Bb and 6Bc are photos of Applicant's production sample first received May 30, 2007. Gazelle Sleeveless Long Shirt, Adidas, www.shopadidas.com/product/index.jsp?productiD=3847890&v2=y&cp=3748175.3 ... (URL is incomplete) received by Applicant Aug. 24,2010. Super Soft Slimmer Tank, MyShape, www.myshape.com/shop/style/ 11906?ci_sku= 11906&utm_source . . . (URL is incomplete) received by Applicant Aug. 24, 2010. Ann Michell Spaghetti Strap Tank Top Style 982, Lauren Silva, www.laurensilva.com/ Ann_Michell_Spaghetti_Strap_Camisole_Control_Shirt_p/an ... (URL is incomplete) received by Applicant Aug. 24, 2010. New Marilyn Monroe Smoothing Camisole 7762, ebay, www.cgi. ebay.com/New-Marilyn-Monroe-Smoothing-Camisole-7762-28 ... (URL is incomplete) received by Applicant Aug. 24,2010. Nancy Ganz The Belly Band Convertible Bodybriefer 3313, Her Room, www.herroom.com/Nancy-Ganz-3313-The-Belly-BandConvertible-Bodyvriefer.sht ... (URL is incomplete) received by Applicant Aug. 24, 2010. Nike Seamless Airborne Women's Long Tank Top, Nike, http:/ /store. nike.com/us/en_us/? 1 =shop,pdp,ctr-inline/cid-1/pid-282277 /pgid-238467 received by Applicant Aug. 24, 2010. Nike Fly Lightweight+ Women's Sports Top, Nike, http:/ /clothingand -accessories.become.com/nike-fly-lightweight -womens-sportstop-com ... (URL is incomplete) received by Applicant Aug. 24, 2010. Pretty Shapewear Camisole, SassyBax, www.sassybax.com/prettycamisole.php received by Applicant Aug. 24, 2010. Underwire Torso Trim, SassyBax, www.sassybax.com/underwire_ trim. php received by Applicant Aug. 24, 2010. The Torso Trim, SassyBax, www.sassybax.com/torso_trim.php received by Applicant Aug. 24, 2010. Belly Bra, JCPenney, www.jcpenney.com/jcp/X6. aspx?DeptiD=51669&CatiD=51669&Grptyp=Siz&Item ... (URL is incomplete) received by Applicant Aug. 24,2010. Secret Sculptor Tunic, Shape Fx, www.shapefx.com/store/ Shapewear_Shop_by_Category_Camis_Tanks_Se ... (URL is incomplete) received by Applicant Aug. 24, 2010. The Skinny, www.skinnycami.biz/files/ received by Applicant Aug . 24,2010. Slimplicity Lingerie Strap Camisole, Spanx, www.spanx.com/product/index.j sp?productld=39773 53&cp=29925 53.40 15964&par . . . (URL is incomplete) received by Applicant Aug. 24,2010. Hide & Sleek Cami, Spanx, http:/ /web.archive.orgl . . . (URL is incomplete) received by Applicant Aug. 24, 2010. Hide & Sleek Full Slip 18 Inch 060A, Spanx, www.herroom.com/ Spanx-060A-Hide-Sleek-Full-Slip-18-Inch.shtml received by Applicant Aug. 24, 2010. Teez-Her The Skinny Tank, Teez-Her, www.essentialapparel.com/ index.cfm/a/catalog.prodshow/vid/72638/catid/267 /Teez ... (URL is incomplete) received by Applicant Aug. 24,2010. Cami-Rolls, http:/ /camirolls.com/shop.shtml received by Applicant Aug. 24, 2010. TummyTee, www.redefyne.com/tummytee.html received by Applicant Aug. 24, 2010.
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US D666,384 S Page4
Champion Seamless Empire Top with Built-In Sports Bra, Champion, www.championusa.com/Champion/Products/Women-Champion/Women_ShopByCa . . . (URL is incomplete) received by Applicant Aug. 24, 2010. Cosabella Smooth Bodyshaper Cami SHPE702, CosaBella, www. herroom.com/Cosabella-Shpe702-Smooth-Bodyshaper-Cami.shtml received by Applicant Aug. 24,2010. Daisy Fuentes Slimming Camisole, Kohls, www.kohls.com/upgrade/webstore/product_page.j sp?PRODUCT%3C%3 Eprd_id=8 received by Applicant Aug. 24, 2010. 582L Countouring Balconet Bra Cami-Long Torso, Dumi Shapewear, www.du-mi.com/store/product-info.php? pid12.html received by Applicant Aug. 24, 2010. Very Precious, Great Glam, http://greatglam.com/pd-very-precious. cfm received by Applicant Aug. 24, 2010. Sensual Charm, Great Glam, http://greatglam.com/pd-sensualcharm1.cfm received by Applicant Aug. 24, 2010. Yalof Schwartz, Suze, "Too Busy for the Gym?" Glamour, www. glamourcom/fashion/blogs/ slaves-to-fashion/2007 I 1 0/too-bus . . . (URL is incomplete) received by Applicant Aug. 24, 2010, Page shown present on Internet approximately Oct. 2007. Underwire Torso Trim, Sassybax, http:/ /webarchive.orglweb/ 20071020033219/sassybax.com received by Applicant Aug. 24, 2010, Page shown present on Internet on Oct. 20, 2007.
Nancy Ganz The Belly Band Convertible Bodybriefer 3313, Nancy Ganz, www.herroom.com/N ancyGanz . . . (URL is incomplete) received by Applicant Aug. 24, 2010, Page shown present on Internet on Nov. 25, 2007. Spanx Hide & Sleek Full Slip 060A, Spanx, www.herroom.com/ Spanx-Hide ... (URL is incomplete) received by Applicant Aug. 24, 2010, Page shown present on Internet on Nov. 1, 2001. Spanx Hide & Sleek Cami 050, Spanx, www.herroom.com/Spanx .. . (URL is incomplete) received by Applicant Aug. 24, 2010, Page shown present on Internet on Oct. 30, 2007. Collection of Photographs received by Applicant (submitted in 3 parts) on Dec. 8, 2010 received by Applicant Aug. 24, 2010. Alleged Ann Mason Receipt; Nov. 26, 2006. Declaration of Ann Mason; May 19, 2007. Yummie Tummie and Maidenform Settle Patent Infringement and Invalidity Lawsuits, Fox News 44, PR N ewswire (20 11 ). http://www. fox44now.com/story/15242333/yummie-tummie-and-maidenformsettle-patent-infringement-and-invaliditylawsuits?clienttype=printable printed Aug. 12, 2011. Maidenform Brands, Inc. Reports Second Quarter 2011 Results and Provides Guidance for Full Year 2011, News Releases--General News, Iselin, NJ /PRNewswire via COMTEXT/ Aug. 10, 2011. Associated Press, "Maidenform 2Q net income drops on settlement," Yahoo News (Aug. 10, 2011 ). http:/ /news.yahoo.com/maidenform-2q-net-income-drops-settlement-125621767.html printed Apr. 20, 2012.
* cited by examiner
Case 1:13-cv-00710-WSD Document 4-14 Filed 04/02/13 Page 65 of 73
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-1- NY 74509515v4
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SPANX, INC, ) ) Plaintiff, ) Case No. 12-CV-00710-WSD ) v. ) ) TIMES THREE CLOTHIER, LLC ) d/b/a Yummie Tummie, ) ) Defendant. )
DECLARATION OF RICHARD ROTHFELD
I, Richard Rothfeld, declare that:
1. I am the General Counsel of Times Three Clothier, LLC d/b/a
Yummie Tummie (“Yummie Tummie”). As a result of my position, I am familiar
with the organization of Yummie Tummie, its business operations, and the location
of witnesses and documents in Yummie Tummie’s possession. I am also familiar
with companies in the shapewear garment industry.
2. Yummie Tummie is a limited liability company organized under the
laws of New York. Yummie Tummie’s headquarters and showroom are located in
New York City.
Case 1:13-cv-00710-WSD Document 4-18 Filed 04/02/13 Page 1 of 3
-2- NY 74509515v4
3. Yummie Tummie owns several patents related to apparel products
which are at issue in this action. Documents and records relating to the
development of Yummie Tummie’s patents are located at Yummie Tummie’s
offices in New York City.
4. Heather Thomson, the inventor of the products at issue, and Wendy
Herman, head of sales of the products at issue, reside in the New York
metropolitan area and their offices are located in New York City.
5. In light of negotiations between Yummie Tummie and Spanx
regarding Yummie Tummie’s infringement allegations, Yummie Tummie
refrained from filing suit against Spanx, although it was ready to do so.
6. Attached as Exhibit 1 is an article from Forbes Magazine entitled
“Undercover Billionaire: Sara Blakely Joins the Rich List Thanks to Spanx”
available at http://www.forbes.com/sites/clareoconnor/2012/03/07/ undercover-
billionaire-sara-blakely-joins-the-rich-list-thanks-to-spanx/ (last accessed April 1,
2013).
7. Based on Exhibit 1, Yummie Tummie is a significantly smaller
company than Spanx, Inc. measured in any conceivable manner.
I hereby declare that all statements made herein of my own knowledge are
true and that these statements were made with the knowledge that willful false
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This story appears on the Mar. 26, 2012 cover of Forbes.
Sara Blakely stands topless at a conference room table. It’s Monday morning
at the Spanx headquarters in Atlanta, and the founder of the hosiery company
has been in a product development meeting for all of five minutes before
walking out abruptly. She returns a minute later in nothing but a lacy taupe
bra with black pants and beige wedges and adjusts herself in a full-length
mirror, worrying aloud about the metal clasps on this early prototype. Will
they create lumps under her clothes? Her CEO, Laurie Ann Goldman — petite
and glamorous in a leopard print shift dress — tugs on Blakely’s straps.
Meet Sara Blakely
The conference room looks like a boudoir designed by Willy Wonka: a jar of
gum balls here, a loud houndstooth print there. Blakely hardly blinks in the
presence of five colleagues and me as she removes the bra and tries on a
second prototype. She’s been getting half-naked in public for the last decade,
controlling every detail of the new category in women’s retail—shapewear—
that she created from a one-product wonder sold out of her apartment.
Today Spanx is to slimming undergarments what Kleenex is to tissues: a
brand that stands for the category. It nets an estimated 20% on revenue just
south of $250 million. In recent months four Wall Street investment banks
separately valued Spanx at an average $1 billion, a sum Forbes corroborated
with the help of industry analysts. Blakely owns 100% of the private company,
has zero debt, has never taken outside investment and hasn’t spent a nickel
on advertising. At 41 she’s the youngest woman to join this year’s World’s
Billionaires list without help from a husband or an inheritance. She is part of a
tiny, elite club of American women worth ten figures on their own, including
Oprah Winfrey and Meg Whitman.
Lots of women, from Betty Grable to Kim Kardashian, have put their butts on
the line to plump their profiles and profits. Far fewer have had to overcome
three phobias—fear of heights, fear of flying and stage fright—to master the art
of selling. Blakely is on the road “always,” she says. She feels dizzy in tall
buildings (it doesn’t help to have a Manhattan condo on the 37th floor) and
often cries in midair. She’s unwilling to board a plane without her iPod, so she
LI ST S | 3/07/2012 @ 11:54AM | 988,301 views
Undercover Billionaire: SaraBlakely Joins The Rich ListThanks To Spanx
Clare O'Connor, Forbes Staff
The billionaire beat: wealth, entrepreneurs and money in politics.
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can play the same Mark Knopfler song, “What It Is,” at every takeoff. “I have
sweaty palms, panic attacks, my heart’s racing,” says Blakely, whose Floridian
roots you occasionally hear in her “Ah” for “I.” She once had to muster the
courage to hawk her wares 6 to 12 times a month on home shopping channel
QVC; now that Spanx is so well-known, it’s maybe once a month but for hours
at a time. Blakely had early practice wrestling with anxiety when she
occasionally did standup comedy. “Every time I went onstage I was so terrified
I almost threw up,” she recalls. “I learned why they call it the greenroom.”
Spanx started as a one-woman show. In her first year Blakely shilled her new
invention from a folding table in the foyer of Neiman Marcus, with a giant
before-and-after photo of her derriere in cream slacks and bikini briefs
underneath in one shot (an embarrassingly obvious Maginot Line) and $30
Spanx Power Panties (et voilà! no more line) in the other.
Over the last couple of years Spanx has depended less on Blakely’s face—and
other body parts—to shift its shapers and stay ahead of a handful of copycats.
The company is now run by a team of 125, only 16 of them men. It sells 200
products in 11,500 department stores, boutiques and online shops in 40
countries. Distributors worldwide clamor to get on the stockist list. “With
international, we’re just warming up,” says Goldman.
Blakely would still happily pose in nothing but Spanx on the cover of any of
the nine catalogs mailed each year to 6 million shoppers, but she knows
Goldman, 49, won’t go for it. “I’m game for anything,” says Blakely. “The
company has to pull me back.” Goldman, who created the first business plan
at Spanx over the founder’s objections that it would stunt creativity, plays the
straight man to Blakely’s more impulsive act.
Fueling her more impetuous side is her entrepreneurial twin: husband Jesse
Itzler, 43, a former rapper from Long Island, who has backed and cofounded a
few startups, including Marquis Jet, which sells fractional air-travel time.
When I meet him at his midtown Manhattan office, he bounds up the stairs in
a sweaty headband, his blond curls dripping. He’s come from an intense
cardio workout with a Navy SEAL he hired to move in with him and Sara for a
month. (This is more efficient than hiring rickshaws from his office, as he
used to do, and paying the driver to be a passenger while he hauled the vehicle
all the way home.)
Itzler regards Blakely’s accomplishments with amazement and amusement.
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“She’s 50% Lucille Ball, 50% Einstein. I keep a list of Sara-isms in my phone,”
he says, referring to her goofy moments. “There’s something every day.”
Recent example: wearing two different shoes, one red-soled Christian
Louboutin and one plain boot, and having to hobble up the escalator at
Bloomingdale’s. Legend: On the way to the Screen Actors Guild Awards one
year, Blakely realized in the limo she’d forgotten her jewelry at her hotel.
Instead of turning back, she had her driver stop at a candy store—and
accessorized her gown with stretchable candy necklaces and bracelets. Spanx
fans recognize her on the street, in stores and in airports and want to show
their allegiance. “Women flash her,” says Itzler. “Imagine that. She’s just
really good. She’s the best, man.”
***
Blakely didn’t set out to invent anything, but she always had a knack for
hucksterism. The daughter of a personal injury lawyer and an artist, she grew
up in the beach town of Clearwater, Fla., always looking to make a buck. She’d
set up a haunted house at Halloween and charge her neighbors admission. Or,
tearing a page from Tom Sawyer, she’d trick her friends into doing her chores
by turning weedpulling into a competition. As a teen she pulled off a rare
double act: popular blonde cheerleader and debate team champion (no
performance anxiety then).
But tragedy eclipsed her sunny childhood. While riding a bike around her cul-
de-sac, she saw a car run over her best friend, right in front of her. “I think
that when you witness death at age 16, there’s a sense of urgency about life,”
she says. “The thought of my mortality—I think about it a lot. I find it
motivating. It can be any time that your number’s up.”
That same year Blakely’s parents separated. Not long afterward, both her
prom dates died in horrible circumstances. She sought solace in her father’s
Wayne Dyer cassette tapes, memorizing all ten volumes of the motivational
speaker’s How to Be a No-Limit Person series. Dyer preaches “self-
actualization” and “eliminating your erroneous zones.” She was so moved that
she marched to her principal’s office to suggest they include the cassette tapes
in the Clearwater High curriculum. Her friends couldn’t run the other way fast
enough. “People used to fight over who had to ride home with me at night
after a party,” says Blakely. “No one wanted to be in my car—they’d be, like,
‘No! She’s going to make us listen to that motivational crap!’”
Blakely started her first business in 1990, a kids’ club at the Clearwater Beach
Hilton, charging $8 a child for a few hours of babysitting while moms and
dads tanned. She was just out of high school, had no experience, no CPR
training — and no insurance. She got away with it for three summers before
trying to steal business from rival hotels’ summer programs. It was only when
she went to pitch the Hilton’s general manager— age 20, in her first suit from
Casual Corner—that she was busted. “He literally escorted me off the
premises,” Blakely remembers.
After getting a degree in legal communications at Florida State, Blakely twice
took the LSAT exam for law school admission and twice scored abysmally.
Frustrated, she drove from Clearwater to Orlando to audition for a job at
Disney World. Two inches too short to fill the 5-foot-8 Goofy costume, she
instead spent eight hours a day on a moving walkway buckling visitors into
their seats at Epcot’s now closed World of Motion ride. “I think I wanted to
postpone reality, having spent my whole life thinking I’d be a lawyer,” says
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Blakely, who as a kid loved watching her dad in court. “It didn’t work. My first
day at Disney I went on break and saw
Snow White dragging on a cigarette.”
After three months of misery at Disney, Blakely applied for a job she’d seen
advertised on a billboard. She spent the next seven years at Danka, then a $1
billion Florida-based office supply company, now part of Japanese printer
giant Ricoh. It taught her the art of the cold call. “They gave me a cubicle, a
phone book and a territory of four zip codes in Clearwater and said, ‘Now go
sell $20,000 of fax machines a month door-to- door,’” she recalls.
Blakely again found herself being escorted out of buildings. “I’d get business
cards ripped up in my face because I was soliciting.” But with her easy charm,
good looks and slick debating skills, she became, at age 25, Danka’s national
sales trainer.
***
Like many startups, Spanx began life as an answer to an irritating problem.
The panty hose Blakely was forced to wear at both Disney and Danka were
uncomfortable and old-fashioned. “It’s Florida, it’s hot, I was carrying fax
machines,” she says. She hated the way the seamed foot stuck out of an open-
toe sandal or kitten heel. But she noticed that the control-top eliminated
panty lines and made her tiny body look even firmer. She’d bought a new pair
of cream slacks for $78 at Arden B and was keen to wear them to a party. “I cut
the feet off my pantyhose and wore them underneath,” she says. “But they
rolled up my legs all night. I remember thinking, ‘I’ve got to figure out how to
make this.’ I’d never worked in fashion or retail. I just needed an
undergarment that didn’t exist.”
Blakely, then 27, moved to Atlanta, set aside her entire $5,000 savings and
spent the next two years meticulously planning the launch of her product
while working nine to five at Danka. She spent seven nights straight at the
Georgia Tech library researching every hosiery patent ever filed. She visited
craft stores like Michaels to find the right fabrics. She sought out hosiery mills
in the Yellow Pages and started cold calling, only to be told no repeatedly.
Immune to rejection thanks to years selling door-to-door, she decided just to
show up. At the Highland Mills hosiery factory in Charlotte, N.C., she was
turned away, only to receive a call from the manager two weeks later. He had
daughters, he told her, who wouldn’t let him pass up her invention. (Today
the Spanx line is manufactured in 15 countries, including Thailand, Israel and
Honduras; the cotton crotches are still hand-sewn in North Carolina.)
To save $3,000 in legal fees she wrote her own patent from a Barnes & Noble
textbook, setting aside $150 to incorporate her company, but couldn’t decide
on a name. After a succession of terrible ideas she settled on Spanks,
substituting an “x” at the last minute after reading that made-up names sold
better. “The word ‘Spanx’ was funny,” she says. “It made people laugh. No one
ever forgot it.” In the summer of 2000 she spent evenings on a friend’s
computer designing her packaging. She went for cherry red and, with the help
of a graphic artist, created a blonde cartoon model with a long ponytail called
Sunny—Sara’s animated alter ego.
Blakely flew to Dallas that fall to meet with buyers from Neiman Marcus.
Current CEO Karen Katz was president of all the upscale chain’s stores at the
time and remembers seeing Blakely in a conference room, pitching. “Sara’s
effort was to solve an age-old problem for women in a modern way,” Katz
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says. She adds that Blakely’s obvious charisma and unusual backstory didn’t
hurt. “We were smitten from the beginning.” With Neiman in the bag, Blakely
convinced Bloomingdale’s, Saks and Bergdorf Goodman to give her a shot.
Blakely was still working her day job at Danka, keeping her side business top
secret, sitting up all night shoving Spanx orders into white padded envelopes
from Office Depot. She was 24/7 customer service, answering phone calls
from her bathtub or bed. Her then boyfriend quit his job and took care of
shipping and handling.
Unable to shell out for advertising, Blakely took on marketing and p.r. She
tore out journalists’ bylines from magazines and called them. She took over
morning staff meetings at department stores to show sales associates why
Spanx shouldn’t languish in the beige hinterland of the hosiery floor but be
sold alongside womenswear and shoes. If that didn’t work, she improvised,
once sneaking some red Spanx packages onto a rack she bought at Target and
placing them by a cash register in Neiman. “All the staff assumed someone
else had approved it, until they caught me on CCTV,” she laughs.
She connived her way to her biggest coup, shipping samples to Oprah
Winfrey’s longtime stylist Andre Walker, who noticed the talk-show host
started looking ten pounds lighter. In November 2000 Winfrey named Spanx
her favorite product of the year on the annual audience scream-a-thon that
was her Favorite Things Show. When Blakely got the call from Harpo
Productions, she was warned to get her website ready, since orders would
undoubtedly cascade after the show. Spanx didn’t have a website. “We took a
color copy of the packaging and scanned it in,” Blakely says. “I ran a
considerable Web business for $18 a month.” She resigned from Danka two
weeks before the show aired. Spanx was profitable from day one, and raked in
$4 million its first year and $10 million the next.
For the next two years Blakely constantly traveled to do in-store demos and
local news appearances. In 2001 she scored a coveted deal with QVC, which
turned her down until it read a Forbes story (“Footless and Fancy-Free,” Apr.
2, 2001) that described Blakely as an “accidental entrepreneur” who’d
reinvented the girdle. So what if Spanx took the high road (Bergdorf ) and the
low (QVC) at once? Women were buying like mad.
“Sara was out there shaking her butt and selling her product,” says Goldman
in her office, next door to Blakely’s and furnished like an Upper East Side
living room—velvet fittings, monogrammed Louis Vuitton trunks. Goldman, a
ten-year veteran of Coca-Cola, where she ran the licensing division in 54
countries, came on board in 2002, first as a consultant, then as CEO. She was
Spanx’s fifth employee. Her office was the kitchen in Blakely’s apartment in
Decatur, but she knew that wouldn’t be the case for long. “I wanted to run
Spanx like a public company from the start. I thought, Let’s get Ernst & Young
to do our audits. They didn’t really do companies our size, but I said we were
going to be bigger one day. We did the same with IT.”
As Goldman set about professionalizing the company, Blakely found a
publicity stunt she couldn’t pass up. After six auditions she was cast on
Richard Branson’s 2003 reality show, Rebel Billionaire, which aired on Fox in
2004. Her lawyers (and her dad) begged her not to do it. But Blakely says she
wanted to meet and learn from the Virgin mogul. Branson saw it as another
sign of her p.r. savvy. “She was already reasonably successful before, and she
cleverly thought the show would help,” he says.
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Leaving Spanx in Goldman’s hands for three months, Blakely won task after
task—shocking her teammates and the crew. “I was cast as the girl who’d have
the meltdown from heights on the first episode and lose her mind,” she says.
Blakely followed daredevil Branson up the side of a moving hot air balloon at
8,000 feet, climbing a rope ladder the equivalent of a 17-story building. She’d
be a world record holder if she’d remembered to call Guinness afterward.
“Sara was the runner-up overall,” says Branson. “The only reason I didn’t give
her the top prize was because she was already successful. She didn’t need a leg
up.” Instead, Branson cut her a personal check for $750,000 to start a
foundation. To date Blakely and Spanx have donated $17.5 million to charities
primarily aimed at supporting girls and women—college scholarships in South
Africa, homes for single mothers and their families (via Habitat for Humanity)
and empowerment grants supporting entrepreneurship among them.
“Isn’t my wife delicious?” Itzler asks aloud in an Atlanta restaurant, while
gripping her thigh under the table. He’s flown in from New York for one day to
watch Blakely speak to a group of jobless women seeking inspiration. With six
homes—two in Atlanta, an Upper West Side condo in Manhattan, a
Connecticut summer house, an outpost near Blakely’s brother in La Jolla,
Calif. and a new place in Clearwater—he and his wife often miss each other.
One of them usually has in tow their 2-year-old son, Lazer, named after
Itzler’s Brooklyn-born greatgrandfather.
Blakely and Itzler met six years ago through Marquis Jet, an offshoot of
NetJets. He’d come up with the idea of allowing travelers to buy time on
private planes at age 27, after a few years in L.A. rapping (biggest hit: “Shake It
Like a White Girl”) and writing sports jingles, including the NBA’s Knicks
anthem “Go New York Go.” In 2006, when he planned a celebrity poker
tournament, a sales rep suggested he invite Blakely, who by then was
successful (and brave) enough to fly on private planes. Itzler had never heard
of Spanx and Googled Blakely’s picture, thinking, “Yeah, she can come. Top of
the list.” Each was hooked, even though both were attached to other people.
They married in 2008 in Boca Grande, Fla. in front of Blakely’s early Spanx
employees and Itzler’s friends from his years in the music and sports
industries. “We had very successful people and, like, thugs,” he says.
Blakely had a moment of panic weeks before the wedding. She sat Itzler down
at a favorite Upper West Side restaurant and told him the secret only her
immediate family knew: just how rich she was. “She said to me, ‘I’m not sure
you really know how successful Spanx is—[and] I am.’” Blakely told him the
company pulled in not a couple of million dollars a year but a couple of
hundred million. Itzler started crying. “I was just so happy for her.”
Itzler himself isn’t exactly poor. In 2010 he sold Marquis to Berkshire
Hathaway, which owns NetJets, for an undisclosed amount. He now owns a
stake in Zico, a trendy coconut water brand (Coca-Cola has 20%), as well as
Voli, a low-calorie vodka, and Sheets, a caffeinated version of Listerine’s strip
that dissolves on the tongue—all held through his 100 Mile Group, an
incubator and marketing company. Investors in various projects include
friends LeBron James and Gisele Bündchen.
Blakely has strong views about her wealth. “I feel like money makes you more
of who you already are,” she says from behind a mirrored desk in her plush
Atlanta office, stirring a bowl of take-out soup and exhausted from a sleepless,
flu-ridden night. “If you’re an asshole, you become a bigger asshole. If you’re
nice, you become nicer. Money is fun to make, fun to spend and fun to give
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away.” Most fun: anonymously buying dinner for an entire restaurant crowd
at her favorite Japanese steak house in Atlanta or bidding on travel
“experiences” like VIP trips to Paris Fashion Week and Sundance at the
charity auctions she and Itzler attend.
Coming off its best year ever, Spanx has big plans for expansion. Goldman is
pushing to double international sales, now over 15% of the total, within three
years. She spends a lot of time jetting around Asia, laying the groundwork for
Spanx in countries that don’t obsess about their posteriors quite as much as
Westerners do. She and Blakely plan to open stand-alone shops, first in
Atlanta, then slowly worldwide. They’re pushing their cheaper diffusion line,
Assets, and adding new categories— swimwear, activewear, men’s underwear
—as customers demand more options and competitors like Yummie Tummie,
Dr. Rey Shapewear, Skweez Couture and Body Wrap (as well as Victoria’s
Secret and Maidenform) flood the booming shapewear market.
Spanx is often the most expensive brand on the shapewear rack, but it hasn’t
hurt sales. “If you have a great product, you can charge whatever you want,”
says Noah Wrubel, CEO of lingerie site BareNecessities.com. “I as a retailer
have no interest in a race to the bottom. Anyone can make a cheaper product.”
Blakely can afford to fund Spanx’s planned growth, but she and Goldman
might, for the first time, consider a public offering or an injection of outside
capital to speed things up. “We’ve been approached consistently from day one,
and it was never something I entertained,” Blakely says. “Now, for the first
time, I may entertain it.”
She still gets teary-eyed whenever she rides up the escalator in
Bloomingdale’s to see the Spanx shop that opened last spring. “I have to pinch
myself,” she says, hobbling in her different shoes, greeting shop assistants
and adoring customers who recognize her from years of TV appearances. “Five
grand,” she says, thinking back a decade. “Good investment.”
This article is available online at:
http://www.forbes.com/sites/clareoconnor/2012/03/07/undercover-billionaire-sara-blakely-joins-the-rich-list-thanks-to-spanx/
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US2008 997414.1
IN THE UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
SPANX, INC., ) ) Plaintiff, ) Case No. 13-CV-00710-WSD ) v. ) ) TIMES THREE CLOTHIER, LLC ) d/b/a Yummie Tummie, ) ) Defendant. )
[PROPOSED] ORDER
For good cause shown, Defendant Times Three Clothier, LLC’s Motion to
Transfer, or, in The Alternative, Stay this Action is hereby GRANTED.
This ______ day of ______________, 2013.
______________________________
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