12345678910111213141516171819202122232425262728with a “C” design (together called the “Chroma marks”
) 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.)
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.)
Sales increased between 2001 and 2007,
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).
Photographs of Chroma’s products are attached as Appendix A.
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