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Order denying PI Motion Chroma v Boldface (Kardashians).pdf

Order denying PI Motion Chroma v Boldface (Kardashians).pdf

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Published by: Lara Pearson on Jan 27, 2013
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10/15/2014

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12345678910111213141516171819202122232425262728UNITED STATES DISTRICT COURTCENTRAL DISTRICT OF CALIFORNIACHROMA MAKEUP STUDIO LLC,Plaintiff,v.BOLDFACE GROUP, INC.; BOLDFACELICENSING + BRANDING,Defendants. _______________________________ )))))))))))CASE NO.:CV 12-9893 ABC (PJWx)ORDER RE: PLAINTIFF’S MOTION FORA PRELIMINARY INJUNCTIONPending before the Court is Plaintiff Chroma Makeup Studio LLC’s(“Chroma’s”) motion for a preliminary injunction, filed on December 5,2012. (Docket No. 19.) Defendants Boldface Group, Inc. and BoldfaceLicensing + Branding (together “Boldface”) opposed on December 17 andChroma replied on December 24. The Court ordered the parties to filesupplemental briefs, which they did on January 3 and January 8, 2013.The Court heard oral argument on Monday, January 14, 2013. For thereasons below, the motion is DENIED.
Case 2:12-cv-09893-ABC-PJW Document 77 Filed 01/23/13 Page 1 of 57 Page ID #:1513
 
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BACKGROUND
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This trademark case arises out of a clash between Chroma, aprimarily Los Angeles-based business selling cosmetic products andservices under various marks using the word CHROMA, and Boldface, alicensing company engaged in the nationwide roll-out of a cosmeticsline under marks using the word KHROMA, which is affiliated with thecelebrity Kardashian sisters — Kourtney, Kim, and Khloe.
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By way ofthis motion, Chroma seeks to enjoin Boldface’s use of the word KHROMAon its cosmetics throughout the United States, believing that theproduct launch has caused and will cause substantial consumerconfusion.Plaintiff Chroma’s backstory is one of small business success.It operates from two locations, one in Beverly Hills and one inEncino. The Beverly Hills location is one block from Rodeo Drive inBeverly Hills, California, in what has become known as the “GoldenTriangle,” the most exclusive shopping district in Los Angeles. (ReyDecl. ¶ 4.) For twelve years, Chroma has used the marks CHROMA,CHROMA COLOUR, CHROMA MAKEUP STUDIO, and CHROMA MAKEUP STUDIO along
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The Court has reviewed the parties’ objections to evidence andto the extent those objections are inconsistent with the Court’sruling, they are OVERRULED. The Court GRANTS Boldface’s requests forjudicial notice.
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The Kardashians are famous television personalities. Kourtneybecame famous from an appearance on a 2005 reality series calledFilthy Rich: Cattle Drive; two years later, all three sisters werefeatured on a reality series called Keeping Up with the Kardashians,now in its seventh season, with 3.6 million viewers for the seventhseason finale and at least two more seasons on the horizon.(Sobiesczyk Decl. ¶ 3.) That show also spawned three spin-off series.(Id. ¶ 4.) In 2010, the Kardashians wrote a best-selling book andthat year, Kim Kardashian was the highest paid reality television starat $6 million. (Id.) In 2012, Khloe Kardashian was a host of thereality competition series The X Factor. (Id.)2
Case 2:12-cv-09893-ABC-PJW Document 77 Filed 01/23/13 Page 2 of 57 Page ID #:1514
 
12345678910111213141516171819202122232425262728with a “C” design (together called the “Chroma marks”
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) for its beautyservices, as well as cosmetics and beauty products, which it sellsfrom its Beverly Hills location, from the Chroma Makeup Studio atButterfly Loft in Encino, California, and online through its websitewww.chromamakeupstudio.com. (Id. ¶¶ 5—6.)
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Chroma has not registeredany marks with the United States Patent and Trademark Office (“PTO”).Chroma considers itself a provider of a “premiere line ofcosmetics and [] elite makeup services” (Compl. ¶ 20), and has gainedprominence in the beauty industry in Los Angeles. It has celebrityclients; it was ranked #1 in the beauty supply category on the “L.A.Hotlist!” in 2011; and it has been covered in local magazines like LosAngeles Confidential, Beverly Hills, and Moxley Head to Toe Guide toBeauty Services in Los Angeles, as well as in national magazines likeVogue, Elle, Self, Genlux, and Lucky. (Rey Decl. ¶¶ 9—11; CasinoDecl. ¶¶ 6—8, Ex. 1.) Its cosmetics are considered high-end, withsome priced as high as $135. (Ostoya Decl. 21, Ex. A.) Its yearlysales from 2001 to 2012 ranged between $406,484.80 and $552,402.37,40% of which came from product sales and 60% from sales of services.(Rey Reply Decl. ¶ 14.)
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Sales increased between 2001 and 2007,
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For the first time in its supplemental brief, Boldface arguesthat Chroma’s marks are limited to CHROMA MAKEUP STUDIO and CHROMACOLOUR. Because this argument was raised for the first time afterChroma’s reply brief and Chroma has not had a chance to respond, theCourt declines to consider it. See Graves v. Arpaio, 623 F.3d 1043,1048 (9th Cir. 2010).
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Photographs of Chroma’s products are attached as Appendix A.
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In its supplemental brief, Chroma’s counsel inconsistentlyrepresented that Chroma’s yearly sales of between $400,000 and$550,000 were for products only, and because the products sell around$20 an item on average, that represents sales of 25,000 to 27,500products each year. (Chroma Supp. Br. 10.) The Court accepts the(continued...)3
Case 2:12-cv-09893-ABC-PJW Document 77 Filed 01/23/13 Page 3 of 57 Page ID #:1515

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