CHARLES OF THE RITZ GROUP v. QUALITY KING DIST., 86 Civ. 4251 (EW).
| Decision Date | 16 July 1987 |
| Docket Number | No. 86 Civ. 4251 (EW).,86 Civ. 4251 (EW). |
| Citation | 664 F. Supp. 152 |
| Parties | CHARLES OF THE RITZ GROUP LTD. and Yves Saint Laurent Parfums Corp., Plaintiffs, v. QUALITY KING DISTRIBUTORS, INC., Deborah International Beauty, Ltd., and Deborah Richman, Defendants. |
| Court | U.S. District Court — Southern District of New York |
Paskus, Gordon & Mandel, New York City, for plaintiffs; Lile H. Deinard, of counsel.
Robert L. Sherman, Mineola, N.Y., for defendant Deborah Intern. Beauty, Ltd.
Albin & Richman, Garden City, N.Y., for defendant Deborah Richman.
Plaintiffs are Charles of the Ritz Group Ltd. and Yves Saint Laurent Parfums Corp., makers of OPIUM perfume. Defendants are Quality King Distributors, Inc., Deborah International Beaury, Ltd., and Deborah Richman, makers and distributors of OMNI, a perfume that simulates the scent of OPIUM. On June 20, 1986, this Court issued a preliminary injunction against defendants' use of the sentence, "IF YOU LIKE OPIUM, YOU'LL LOVE OMNI," or any similar or equivalent language. This sentence had been imprinted on a tab that protruded from the top of each box of OMNI perfume. In August 1986, defendants moved that this Court clarify whether the injunction would bar use of a tab imprinted with a modified version of the sentence, to wit, "IF YOU LIKE OPIUM, A FRAGRANCE BY YVES ST. LAURENT, YOU'LL LOVE OMNI, A FRAGRANCE BY DEBORAH INTERNATIONAL BEAUTY." It was held that this modified sentence also violated the original injunction.
Plaintiffs now allege that defendants are responsible for continued use of the two versions of the sentence noted above and the use of a new tab that consists of the modified sentence, held to be enjoined last August, followed by a disclaimer in smaller type. This new tab thus reads in full:
Plaintiffs move that defendants be held in contempt of court for having (1) used, caused, encouraged, assisted, contributed to, or permitted the use of enjoined words or phrases in advertisements or promotions of Omni; and (2) failed to remove and eliminate such words or phrases from advertisements or promotions of Omni. In the alternative, plaintiffs move that defendants and those in active concert with them be preliminarily enjoined from use of the new combination of slogan and disclaimer.
A party may be found in contempt only if (1) the order alleged to have been violated is "clear and unambiguous"; (2) the proof of noncompliance is "clear and convincing;" and (3) the defendant had not "been reasonably diligent and energetic in attempting to accomplish what was ordered." EEOC v. Local 638, 753 F.2d 1172, 1178 (2d Cir.1985), aff'd, ___ U.S. ___, 106 S.Ct. 3019, 92 L.Ed.2d 344 (1986); Powell v. Ward, 643 F.2d 924, 931 (2d Cir.1981), cert. denied, 454 U.S. 832, 102 S.Ct. 131, 70 L.Ed.2d 111 (1981). After a contested hearing at which both sides offered testimony, the Court finds plaintiffs have not sustained their burden of proof. Because no evidence was offered at the hearing linking defendant Quality King, a shareholder of Deborah International and a distributor of its products, to the activities alleged to constitute contempt, Quality King's motion to dismiss the contempt charge against it was granted. The analysis of the contempt motion below thus concerns only defendants Richman and Deborah International.
Plaintiffs presented their evidence of contempt chiefly through an examination of defendant Deborah Richman, an officer of defendant Deborah International. They cited as instances of contempt: (1) an advertisement for Peoples' Drug Stores from the August 1986 issue of a regional edition of Seventeen Magazine (Px. 3); (2) an advertisement published by Walgreen's Drug Stores in the Chicago Tribune on November 30, 1986 (Px. 4) and another, two-page Walgreen's advertisement for the 1986 Christmas season (Px. 6); (3) a flyer for Drugfair advertising a sale ending on December 13, 1986 (Px. 5); (4) a trade advertisement for Deborah International Beauty, which appeared in an unnamed trade journal in September 1986 (Px. 8); and (5) a tab insert used in boxes of OPIUM in store displays starting in October or November 1986 (Px. 9), along with photographs of one such display (Px. 10, 11, 12). For the following reasons, plaintiffs' evidence fails to meet the "clear and convincing" standard of proof.
The Peoples' Drug, Walgreen's, and Drugfair advertisements are all "co-op advertisements" — advertisements placed by the retailer and paid for with an allowance provided by the manufacturer, Deborah International. With respect to the Peoples' Drug advertisement, Deborah Richman testified that the advertisement was prepared by Deborah International and was printed by June 24, 1986. According...
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