UNITED STATES DISTRICT COURTSOUTHERN DISTRICT OF NEW YORK-----------------------------------XYVES SAINT LAURENT PARFUMS, S.A. :and YSL BEAUTÉ INC.,:Plaintiffs,07 Civ. 3214 (LBS)(HBP):-against-OPINION:AND ORDERCOSTCO WHOLESALER CORPORATION,QUALITY KING DISTRIBUTORS, INC.:and J & H COSMETICS, LTD.,:Defendants.:-----------------------------------XQUALITY KING FRAGRANCE, INC.,:Third-Party Plaintiff,:-against-:J & H COSMETICS, LTD.,:Third-Party Defendant.:-----------------------------------XPITMAN, United States Magistrate Judge:I. IntroductionBy notice of motion dated July 28, 2008 (Docket Item67), defendant/proposed third party-plaintiff Quality KingDistributors, Inc. ("QKD") and third-party plaintiff Quality KingFragrance, Inc. ("QKF") move for an Order pursuant toFed.R.Civ.P. 15(a) permitting QKD and QKF to serve an amended

2third-party complaint and an Order pursuant to Fed.R.Civ.P. 21permitting QKD to add Gerald Schmeltzer as a third-partydefendant. For the reasons set forth below, the motion isgranted in part and denied in part.II. FactsThis is a trademark infringement action. As originallycommenced, it was limited to claims against Costco WholesaleCorp. ("Costco") for the alleged resale of lipstick and mascarabearing trademarks belonging to plaintiffs. The complaint wassubsequently amended to add claims against Costco, QKD and J&HCosmetics, Ltd. ("J&H") for infringement with respect to the saleof OPIUM brand perfume (Second Amended Compl., Docket Item 41).The Second Amended Complaint alleged that J&H sold counterfeitOPIUM perfume to QKD, which QKD sold to Costco and which Costcosold to retail consumers (Second Amended Compl. ¶¶ 27, 29). Inits cross claims against J&H, QKD denied that it had purchasedthe perfume in issue but admitted that QKF did purchase the OPIUMperfume in issue from J&H (Answer and Cross Claims of QKD, DocketItem 35, ¶¶ 9-10). QKD and QKF asserted cross claims against J&Hfor breach of contract, violation of the Section 43(a) of theLanham Act 15 U.S.C. § 1125(a), false advertising in violation ofthe Lanham Act, breach of implied warranty, equitable indemnity,

3equitable contribution, a declaratory judgment that J&H is liablefor any costs QKD or QKF incurred defending against plaintiff'sclaims and common law unfair competition. On that same day, QKFfiled a third-party complaint against J&H, asserting on its ownbehalf the same cross-claims that had been asserted in QKD'sAnswer and Crossclaims (QKF's Third-Party Complaint, Docket Item42, ¶ 42).Plaintiffs subsequently settled their claims againstCostco, QKD and QKF; the only remaining claims are plaintiffs'claims and QKD and QKF's claims against J&H. QKD and QKF bringthe present motion to assert claims against J&H and itsprincipal, Gerald Schmeltzer. Specifically, the proposed amendedthird party complaint asserts the following claims on behalf ofboth QKD and QKF against both J&H and Schmeltzer: (1) breach ofcontract; (2) violation of Section 43(a) of the Lanham Act, 15U.S.C. § 1125(a); (3) federal false advertizing; (4) breach ofimplied warranty; (5) equitable indemnity; (6) equitablecontribution; (7) a declaratory judgment that J&H and Schmeltzerare liable for any costs incurred by QKD and QKF in defendingagainst plaintiffs' claims, and (8) contribution and indemnitywith respect to the claims against QKD and QKF for common lawunfair competition. J&H and Schmeltzer oppose the motion.