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Case 1:14-cv-08011-JGK Document 8 Filed 10/27/14 Page 1 of 2

Case 1:14-cv-08011-JGK Document 6 Filed 10/23/14 Page 1 of 2



October 23, 2014

The Honorable John G. Koeltl
United States District Court for the
Southern District of New York
500 Pearl Street
New York, New York 10007-1312

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Re: Chanel, Inc. v. Hellerdlb/a What About Yves,

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Dear Judge Koeltl:

I represent Defendant Jeanine Heller in the above-captioned litigation. I write to
request an Extension of Time in which to file a motion to dismiss Plaintiff Chanel, Inc.'s
Complaint under Federal Rule of Civil Procedure 12(b)(6). This is my first request for
such an extension, to which counsel for Plaintiff has consented (subject to the timetable
set forth below, and contingent on Court's approval.) If the Court deems it appropriate
and/or necessary to treat this letter-motion as one for an extension of time in which to file
a separate request for a pre-motion conference, 1 I request that the Court treat the letter as
such. In that event, I respectfully ask that the Court extend accordingly the time in which
to file a dispositive motion in lieu of a responsive pleading.
An extension is warranted in this case not only because of the very short period

during which I have represented the Defendant and in light of opposing counsel's



I phrase my request in this manner in an effort to avoid misconstruing the intended interaction of this
Court's Individual Rules of Practice and the procedures specified in Standing Order l 1-MISC-00388, In re:
Pilot Project Regarding Case Management Techniques for Complex Civil Cases in the Southern District of
New York, I :14-CV-08011-JGK, Docket Entry No. 3, at 17 (filed Oct. 3, 2014) ("A party intending to file a
(pre-trial] motion governed by the preceding paragraph (other than Rule 12(b) motions must request by
letter ... a pre-motion conference in advance of filing any such motion.") (emphasis added)~ id. ("Motions
pursuant to Rule 12(b) are subject to a different procedure [than other pre-trial motions]. The Court may
consider one of the following options"-specifically, (a) not requiring a pre-motion conference, (b)
requinng the parties to exchange letters in the hope of curing pleading deficiencies, or (c) holding a
conference after the motion is made.) The Standing Order provides, of course, that it applies only to a
designated case "unless the judge to whom [a qualifying] case is assigned determines otherwise," id. at I,
but the Order has been entered on the docket of this case in full. As the applicable Local Rules and ECF
Rules likewise defer to each judge's preferences concerning the logistics of motion practice, they do not
provide additional guidance in this area. Thus, as discussed below, if it is possible to proceed without a
pre-motion conference, I request that the Court do so, especlally if no addrtional time will be provided.

Case 1:14-cv-08011-JGK Document 8 Filed 10/27/14 Page 2 of 2

Case 1:14-cv-08011-JGK Document 6 Filed 10/23/14 Page 2 of 2

qualified consent, but also because issues to be raised in the forthconring motion are
relatively complex, involving (1) arguments that Plaintiff has not properly invoked-and
cannot properly invoke- - the Lanham Act, as a threshold matter, in this dispute; (2) a
demonstration of the implausibility/non-cognizable nature of Plaintiff's claims, as well as
the dispositive applicability, as a matter oflaw, of both statutory and judge-made
defenses to Plaintiff's claims for federal and state trademark infringement and dilution;
(3) an analysis showing why all of Plaintiff's claims are foreclosed, as a matter of law, by
Defendant's First Amendment rights; and (4) arguments concerning the preclusion of
liability in this case under both constitutional and statutory-interpretation principles that
govern trademark-copyright interface. Please note that this is a non-exhaustive, non-final
list of the bases for my client's planned Motion to Dismiss under Rule 12(b)(6).
As mentioned above, Plaintiff's counsel has consented to the following filing and
briefmg timetable for Defendant's 12(b)(6) Motion, subject to the Court's approval:
November 7, 2014:

Deadline for Defendant to file Motion to Dismiss under 12(b)(6)

November 21, 2014: Deadline for Plaintiff to file Opposition to Motion to Dismiss
November 28, 2014: Deadline for Defendant to file Reply Brief in Support of Motion
Plaintiff's counsel has stated that a pre-motion conference will be necessary in
this case, noting that the proposed dates must accord with the Court's scheduling of such
a conference. However, for reasons identified in footnote 1, it is not clear to me that a
pre-motion conference is, in fact, in required here. Further, while I certainly do not
object to the Court's scheduling of a pre-motion conference, I do informally request that
the Court decline to order such a conference in this case, as the arguments Defendant
plans to make are best suited a full analysis on the papers and, as the Court sees fit, in
post-filing oral argument.

Respectfully submitted,

Charles E. Colman (CC-1133)

419 Lafayette St., 2nd Floor
New York, NY 10003
(212) 960-8949 (p)
(212) 960-8969 (j)
Attorney for Jeanine Heller