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At the SUPREME COURT FOR THE
STATE OF NEW YORK, COUNTY OF
NEW YORK held in and for New York
County at the New York County
Courthouse, 60 Centre Street, New York,
New York, on November 2010
PRESENT:
J.S.C. Index No. 651885/2010
nnn cece ce ee eee nen e nen eennennnnenee X
JMB APPAREL DESIGNER GROUP, INC.
ORDER TO SHOW CAUSE FOR
Plaintiffs A PRELIMINARY INJUNCTION
& IMMEDIATE FACT HEARING
- against -
ROBERT S. AROCHAS, D-NACH, LTD. and
FAB MILL INC.,
Defendants.
wane ene n een eee een eee ene eee,
Upon the affirmation of Joseph H. Adams, Esq., dated November 5, 2010, the affidavit of
Jeffrey Scher, sworn to November 5, 2010, the affidavit of Marcella Law, sworn to November 5,
2010, the exhibits annexed thereto, and the summons and complaint dated October 28, 2010, in
this action, filed October 29, 2010, good cause having been alleged therefore, it is hereby
ORDERED that defendants Robert S. Arochas, D-Nach, Ltd. and Fab Mills, Inc., by their
respective counsel, shall be required to SHOW CAUSE before this Court, at the New York
County Courthouse, 60 Centre Street, Foley Square, New York, New York 10956 on November
, 2010, at 10:30 a.m. or as soon thereafter as counsel can be heard, before the judge to be
assigned to this action, at the Courtroom assigned to that Judge, why the following relief should
not be granted to wit:
A. An order directing defendants Robert S. Arochas (“Arochas), D-Nach Ltd. (‘D-Nach”)
and Fab Mill, Inc. (“Fab Mill”) to recall and to remove, immediately and at their own expense,
from any retailers to whom they have sold and/or distributed them, any garments that have been
copied by defendants from the garment styles made and sold by plaintiff JMB Apparel Designer
Group Inc. (“JMB”), under the label or mark “Atelier Luxe” without consent, permission or prior
knowledge of JMB, resulting in alleged trademark infringement and unfair competition,
B. An order restraining and enjoining defendants Arochas, D-Nach, or Fab Mills from
marketing, selling, shipping or delivering any additional garments with garment style numbers
copied or identical to JMB garment styles to any third party retailer including but not limited to
those retailers known as Nordstrom Rack, Stein Mart, Annie Sez, TJ Max, Marshalls, ideeli,
Loehmans, Syms, Filenes Basement and/or Dillards during the pendency of this legal action,
C. An order restraining and enjoining Arochas, D-Nach, or Fab Mill, during the
pendency of this action, from making use of any business name, trademark or label bearing the
term “Atelier Luxe,” or any formulation of a label, or trademark name including but not limited
to the compound use of the word “Atelier”, such as “Atelier Luxe”, which plaintiffs alleged is the
label or trademark being infringed to implement the theft, copying, manufacture and sale JMB’s
proprietary style designs, in unlawful and unfair competition with JMB and in infringement of
the common law trademark rights of JMB held by JMB in the “Atelier” label or trademark.
D. An order appointing a receiver, or other court-appointed official, to supervise the
receipt, distribution and control of the revenues of D-Nach and Fab Mill, so that these revenues
may be distributed subject to the future orders of this Court, so as to enable a constructive trust to
be imposed on all revenues received by these companies and/or by Arochas individually, which
is part of the relief sought herein by JMB, as plaintiff, for the alleged wholesale copying and theft
of the JMB’s good will and its business enterprise in making and selling garment styles made and
sold by JMB under its “Atelier” trademark by defendants using the “Atelier Luxe” trademark.
E. An order requiring defendants to communicate in writing the retailers to whom they
have sold the alleged garment styles copied from the JMB garment styles to advise these retailers
that all of the garments previously sold or delivered to them by Arochas, directly or through D-
Nach or Fab Mill, were unauthorized copies of the same garment styles owned by JMB and
previously manufactured and sold by JMB to these retailers and to advise these retailers that
defendants have no legal right to make market or sell such garments, and that defendants shall
not undertake or attempt to make or sells such garments to these retailers in the future, and
GOOD CAUSE having been alleged in the supporting papers on this application, to assist
the Court in determining the request made herein for the preliminary injunctive relief requested,
defendants shall be required to show cause why interim or orders should not be granted for the
following relief:
F. An order scheduling an evidentiary hearing on this application for preliminary
injunctive relief at the Court’s earliest available date, to determine and to verify the extent of the
improper conduct by defendants, based, inter alia, on the direct comparison of the JMB style
numbers with the same style or product numbers of the garments currently being sold by
defendants as Atelier Luxe branded garments, and, in anticipation of such an evidentiary hearing,
G. An order requiring defendants to produce to plaintiffs counsel forthwith, within five
(5) business days prior the scheduled date of the hearing requested above, a detailed sworn
written statement, identifying the specific garment styles and quantities of such garments sold by
defendants to date, from May 1, 2010 to the present, to third party retailers, together with copies
of physical and/or digital business records maintained by defendants, including invoices,
purchase orders, and shipment or delivery records, which include or contain the specific
garment style numbers assigned and used by defendants for the garments styles sold or delivered
by them to these retailers to date, and good cause therefor having been alleged: it is further
ORDERED that answering papers, if any, to this application shall be served by
defendants’ counsel, so as to be received in the offices of plaintiff's counsel, no later than five
(5) business days before the return date set forth for this application, and it is further
ORDERED that counsel for both parties shall appear on the return date hereof, and be
prepared to schedule an evidentiary hearing at the Court’s first available opportunity, and it is
ORDERED that service of this order to show cause, and the papers on which it is granted
by personal delivery, upon the offices of Robert Arochas, and D-Nach Ltd, and Fab Mill, Inc., at
250 West 39" Street, New York, New York 10018, or by overnight express commercial delivery
or U.S. Post Office express mail delivery to those addresses, to be received by on or before
November , 2010 at their offices, provided however that it is specifically made a part of this
order that, in order to implement such service properly, it is not necessary for plaintiff to serve
multiple copies of this order and its supporting papers on the individual defendants at their
shared offices at the indicated address, but that service of one copy of the papers on that office,
shall be deemed to be good and sufficient service hereof.
Dated: November 2010
JSC.
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At the SUPREME COURT FOR THE STATE OF NEW YORK, COUNTY OF NEW YORK held in and for New York County at the New York County Courthouse, 60 Centre Street, New York, New York, on November 2010 PRESENT: J.S.C. Index No. 651885/2010 nnn cece ce ee eee nen e nen eennennnnenee X JMB APPAREL DESIGNER GROUP, INC. ORDER TO SHOW CAUSE FOR Plaintiffs A PRELIMINARY INJUNCTION & IMMEDIATE FACT HEARING - against - ROBERT S. AROCHAS, D-NACH, LTD. and FAB MILL INC., Defendants. wane ene n een eee een eee ene eee, Upon the affirmation of Joseph H. Adams, Esq., dated November 5, 2010, the affidavit of Jeffrey Scher, sworn to November 5, 2010, the affidavit of Marcella Law, sworn to November 5, 2010, the exhibits annexed thereto, and the summons and complaint dated October 28, 2010, in this action, filed October 29, 2010, good cause having been alleged therefore, it is hereby ORDERED that defendants Robert S. Arochas, D-Nach, Ltd. and Fab Mills, Inc., by their respective counsel, shall be required to SHOW CAUSE before this Court, at the New York County Courthouse, 60 Centre Street, Foley Square, New York, New York 10956 on November , 2010, at 10:30 a.m. or as soon thereafter as counsel can be heard, before the judge to be assigned to this action, at the Courtroom assigned to that Judge, why the following relief should not be granted to wit: A. An order directing defendants Robert S. Arochas (“Arochas), D-Nach Ltd. (‘D-Nach”) and Fab Mill, Inc. (“Fab Mill”) to recall and to remove, immediately and at their own expense, from any retailers to whom they have sold and/or distributed them, any garments that have been copied by defendants from the garment styles made and sold by plaintiff JMB Apparel Designer Group Inc. (“JMB”), under the label or mark “Atelier Luxe” without consent, permission or prior knowledge of JMB, resulting in alleged trademark infringement and unfair competition, B. An order restraining and enjoining defendants Arochas, D-Nach, or Fab Mills from marketing, selling, shipping or delivering any additional garments with garment style numbers copied or identical to JMB garment styles to any third party retailer including but not limited to those retailers known as Nordstrom Rack, Stein Mart, Annie Sez, TJ Max, Marshalls, ideeli, Loehmans, Syms, Filenes Basement and/or Dillards during the pendency of this legal action, C. An order restraining and enjoining Arochas, D-Nach, or Fab Mill, during the pendency of this action, from making use of any business name, trademark or label bearing the term “Atelier Luxe,” or any formulation of a label, or trademark name including but not limited to the compound use of the word “Atelier”, such as “Atelier Luxe”, which plaintiffs alleged is the label or trademark being infringed to implement the theft, copying, manufacture and sale JMB’s proprietary style designs, in unlawful and unfair competition with JMB and in infringement of the common law trademark rights of JMB held by JMB in the “Atelier” label or trademark. D. An order appointing a receiver, or other court-appointed official, to supervise the receipt, distribution and control of the revenues of D-Nach and Fab Mill, so that these revenues may be distributed subject to the future orders of this Court, so as to enable a constructive trust to be imposed on all revenues received by these companies and/or by Arochas individually, which is part of the relief sought herein by JMB, as plaintiff, for the alleged wholesale copying and theft of the JMB’s good will and its business enterprise in making and selling garment styles made and sold by JMB under its “Atelier” trademark by defendants using the “Atelier Luxe” trademark. E. An order requiring defendants to communicate in writing the retailers to whom they have sold the alleged garment styles copied from the JMB garment styles to advise these retailers that all of the garments previously sold or delivered to them by Arochas, directly or through D- Nach or Fab Mill, were unauthorized copies of the same garment styles owned by JMB and previously manufactured and sold by JMB to these retailers and to advise these retailers that defendants have no legal right to make market or sell such garments, and that defendants shall not undertake or attempt to make or sells such garments to these retailers in the future, and GOOD CAUSE having been alleged in the supporting papers on this application, to assist the Court in determining the request made herein for the preliminary injunctive relief requested, defendants shall be required to show cause why interim or orders should not be granted for the following relief: F. An order scheduling an evidentiary hearing on this application for preliminary injunctive relief at the Court’s earliest available date, to determine and to verify the extent of the improper conduct by defendants, based, inter alia, on the direct comparison of the JMB style numbers with the same style or product numbers of the garments currently being sold by defendants as Atelier Luxe branded garments, and, in anticipation of such an evidentiary hearing, G. An order requiring defendants to produce to plaintiffs counsel forthwith, within five (5) business days prior the scheduled date of the hearing requested above, a detailed sworn written statement, identifying the specific garment styles and quantities of such garments sold by defendants to date, from May 1, 2010 to the present, to third party retailers, together with copies of physical and/or digital business records maintained by defendants, including invoices, purchase orders, and shipment or delivery records, which include or contain the specific garment style numbers assigned and used by defendants for the garments styles sold or delivered by them to these retailers to date, and good cause therefor having been alleged: it is further ORDERED that answering papers, if any, to this application shall be served by defendants’ counsel, so as to be received in the offices of plaintiff's counsel, no later than five (5) business days before the return date set forth for this application, and it is further ORDERED that counsel for both parties shall appear on the return date hereof, and be prepared to schedule an evidentiary hearing at the Court’s first available opportunity, and it is ORDERED that service of this order to show cause, and the papers on which it is granted by personal delivery, upon the offices of Robert Arochas, and D-Nach Ltd, and Fab Mill, Inc., at 250 West 39" Street, New York, New York 10018, or by overnight express commercial delivery or U.S. Post Office express mail delivery to those addresses, to be received by on or before November , 2010 at their offices, provided however that it is specifically made a part of this order that, in order to implement such service properly, it is not necessary for plaintiff to serve multiple copies of this order and its supporting papers on the individual defendants at their shared offices at the indicated address, but that service of one copy of the papers on that office, shall be deemed to be good and sufficient service hereof. Dated: November 2010 JSC.