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  • Jmb Apparel Designer Group, Inc. v. Robert S Arochas, D-Nach, Ltd., Fab Mill, Inc. Commercial Division document preview
  • Jmb Apparel Designer Group, Inc. v. Robert S Arochas, D-Nach, Ltd., Fab Mill, Inc. Commercial Division document preview
  • Jmb Apparel Designer Group, Inc. v. Robert S Arochas, D-Nach, Ltd., Fab Mill, Inc. Commercial Division document preview
  • Jmb Apparel Designer Group, Inc. v. Robert S Arochas, D-Nach, Ltd., Fab Mill, Inc. Commercial Division document preview
  • Jmb Apparel Designer Group, Inc. v. Robert S Arochas, D-Nach, Ltd., Fab Mill, Inc. Commercial Division document preview
  • Jmb Apparel Designer Group, Inc. v. Robert S Arochas, D-Nach, Ltd., Fab Mill, Inc. Commercial Division document preview
  • Jmb Apparel Designer Group, Inc. v. Robert S Arochas, D-Nach, Ltd., Fab Mill, Inc. Commercial Division document preview
  • Jmb Apparel Designer Group, Inc. v. Robert S Arochas, D-Nach, Ltd., Fab Mill, Inc. Commercial Division document preview
						
                                

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(FILED: NEW YORK COUNTY CLERK 1271372010) INDEX NO. 651885/2010 NYSCEF DOC. NO. 25 RECEIVED NYSCEF 12/13/2010 SUPREME COURT OF THE STATE OF NEW YORK COUNTY OF NEW YORK ence eee e eee e nnn en en ennn me nnn nn nennnnnenenen] JMB APPAREL DESIGNER GROUP, INC., Motion #1 Plaintiff, Index No. 651885/10 v ROBERT S. AROCHAS, D-NACH, LTD., and FAB MILL, INC., Defendants. penne nn nen ene n nee een penne cece nen en eee) DEFENDANTS’ MEMORANDUM OF LAW IN OPPOSITION TO PLAINTIFF'S ORDER TO SHOW CAUSE SEEKING, INTER ALIA, A PRELIMINARY INJUNCTION, THE APPOINTMENT OF A RECEIVER, AND FURTHER PROVISIONAL EQUITABLE RELIEF Murray L. Skala, Esq. Bruce Robins, Esq. FEDER KASZOVITZ LLP 845 Third Avenue New York, NY 10022-6601 (212) 888-8200 Attorneys for Defendants ROBERT S. AROCHAS, D-NACH, LTD., and FAB MILL, INC. Dated: New York, New York December 10, 2010 Table of Contents Page INTRODUCTION PLAINTIFF CANNOT SHOW A LIKELIHOOD OF SUCCESS ON THE MERITS A Plaintiff Has No Common Law Trademark in the Name “Atelier” Plaintiff Has No croprietary Rights in the Apparel It Sells... 12 Plaintiff's Remaining Claims and Complaints Are Equally Meritless 17 PLAINTIFF ALSO CANNOT SHOW THAT IT WILL SUFFER IRREPARABLE HARM ABSENT AN INJUNCTION, OR THAT THE BALANCE OF THE EQUITIES TIPS IN ITS FAVOR 21 PLAINTIFF HAS NOT MADE ANY SHOWING JUSTIFYING 23 THE APPOINTMENT OF A TEMPORARY RECEIVER. CONCLUSION 25 Table of Authorities Cases Page Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 9, 10 42. N.Y.2d 538, 399 N.Y.S.2d 628, 369 N.E.2d 1162 (1977) Buffalo Packaging Corp. v. Buff-Pac, Inc., 155 A.D.2d 877, 547 N.Y.S.2d 714 (4 Dept. 1989)... 10 Camelot Assocs. v. Camelot Design & Dev. LLC, 298 A.D.2d 799, 750 N.Y.S.2d 155 (3d Dept. 2002) 10 Citibank, N.A. v. Citytrust, 756 F.2d 273 (2d Cir. 1985)... 22 Credit Agricole Indosuez v. Rossiyskiy Kredit Bank, 94.N.Y.2d 541, 708 N.Y.S.2d 26 (2000) 21 Elements/Jill Schwartz, Inc. v. Gloriosa Co., 2002 U.S. Dist. LEXIS 12669 (S.D.N.Y. 2002). 14, 15 Ergotron, Inc. v. Hergo Ergonomic Support Systems, Inc., 13 1996 WL 143903 (S.D.N.Y. 1996) Faberge Int'l, Inc. v. Di Pino, 109 A.D.2d 235, 491 N.Y.S.2d 345 (Ist Dept. 1985) Gidatex S.R.L. v. Campaniello Imports Lid., 13 F. Supp. 2d 417 (S.D.N.Y. 1998)....:s0s0000 22 Girard Holding Corp. v. Hollander, 195 Misc. 878, 91 N.Y.S.2d 188 (Sup.Queens 1949) 22 Groh v. Halloran, 24 86 A.D.2d 30, 448 N.Y.S.2d 680 (Ist Dept. 1982)....... Hansen Beverage Co. v. Cytosport, Inc., 2004 WL 5104260 (C.D.Cal. 2009). 23 Headquarters Buick-Nissan, Inc. v. Michael Oldsmobile, 149 A.D.2d 302, 539 N.Y.S.2d 355 (1* Dept. 1989)... 20 Jack Schwartz Shoes, Inc. v. Skechers U.S.A., Inc., 233 F. Supp. 2d 512 (S.D.N.Y. 2002) 9,13 u Jack Schwartz Shoes, Inc. v. Skechers U.S.A., Inc., 2002 U.S. Dist. LEXIS 25699 (Mag. Recommendation). adopted by the Court at 233 F.Supp.2d 512 (S.D.N.Y. 2002) Judith Ripka Designs, Ltd. v. Preville 935 F. Supp. 237 (S.D.N.Y. 1996) 15 Little India Stores, Inc. v. Singh, 101 A.D.2d 727, 475 N.Y.S.2d 38 (Ist Dept. 1984) 22 Maharishi Hardy Blechman Ltd. v. Abercrombie & Fitch Co., 292 F. Supp. 2d 535 (S.D.N.Y. 2003) 13, 14, 15, 16 Mal Dunn Associates, Inc. v. Kraniac. 145 A.D.2d 472, 535 N.Y.S.2d 430 (2d Dept. 1988) 20 Mayo, Lynch & Associates, Inc. v. Fine 148 A.D.2d 425, 538 N.Y.S.2d 579 (2d Dept. 1989) 20 New York City Off-Track Betting Corp. v. New York Racing Ass'n, Inc., 250 A.D.2d 437, 673 N.Y.S.2d 387 (Ist Dept. 1998) : 21 People v. Rosenthal, 6 Misc.3d 1004(A), 800 N.Y.S.2d 354, 2003 WL 23962174 (N.Y.City Crim.Ct. 2003)... 13 Quick v. Quick, 69 A.D.3d 828, 893 N.Y.S.2d 583 (2d Dept. 2010) 23 SW. Scott & Co. v. Scott. 186 A.D. 518, 174 N.Y.S. 583 (Ist Dept.1919) 19 Sally Gee, Inc. v. Myra Hogan, Inc., 699 F.2d 621 (2d Cir. 1983). 11 Sanofi-Syntholabo v. Apotex, Inc. 470 F.3d 1368 (Fed. Cir. 2006) 23 Shear Contractors, Inc. v. Shear Enterprises & Gen. Contracting, 2010 U.S. Dist. LEXIS 122173 (N.D.N.Y. November 16, 2010). 8,9,11 SportsChannel America Associates v. National Hockey League: 186 A.D.2d 417, 589 N.Y.S.2 2d (Ist Dept. 1992) 21,22 iu Temple Judea of Manhasset, Inc. v. A & B Roofing, Inc., s 24 11 Misc.3d 1078(A), 819 N.Y.S.2d 852, 2006 WL 948125 (Sup.Nass. 2006) ..essseereeer The Jewish Sephardic Yellow Pages, Ltd. v. DAG Media, Inc., 478 F. Supp. 2d 340 (E.D.N.Y. 2007) «ees . Thomas & Betts Corp. v. Ponduit Corp., 13 65 F.3d 654 (7th Cir. 1995) Tough Traveler, Lid. v. Outbound Products, 22 60 F.3d 964 (2d Cir. 1995)... TrafFix Devices, Inc. v. Marketing Displays, Inc., eee 13 532 U.S. 23 (U.S. 2001). Uciechowski v. Ehrlich, 22 221 A.D.2d 866, 634 N.Y.S.2d 251 (3d Dept. 1995) Vardaris Tech, Inc. v. Paleros, Inc., 24 49 A.D.3d 631, 853 N.Y.S.2d 601 (2d Dept. 2008) .......+++ Villardi v. Sinclair Refining Co., 21 147 N.Y.S.2d 269 (Sup. N.Y. 1955) V.S. Distribs. y. Emkay Trading Corp., 10 1 A.D.3d 350 (2d Dept. 2003) «0... Walter Karl, Inc. v. Wood, 19, 20 137 A.D.2d 22, 528 N.Y.S.2d 94 (2d Dept. 1988) Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 101 (2d Cir. 2001) 11 Zandman vy. Nissenbaum, 21 53 A.D.2d 837, 385 NYS24 562 (1st Dept. 1976) Statutes 15 U.S.C. §1056 lv INTRODUCTION ts Plaintiff's application seeking, inter alia, a preliminary injunction restricting defendan goods from from doing business, the appointment of a receiver, and recalling defendants’ customers, is meritless as a matter of fact and law. Plaintiff's claims are founded on deceptive about legal and flawed arguments which are easily refuted, and exaggerated pronouncements rights which plaintiff simply does not have. Other than how voluminous plaintiffs papers are, the only thing remarkable about them is just how groundless are plaintiff's application for provisional relief and its underlying claims. At the core of this case is a disgruntled employer desperately trying to bar its former ignores employee and his associates from competing against it. Plaintiff, for obvious reasons, critical facts including that the employee (Bob Arochas) was employed on an at-will basis, or without any restrictive covenant, by a garment company which has no proprietary designs well styles, no proprietary name, no trade secrets and that does business with retailers that are known to all. The decline in business that plaintiff is facing is simply the result of buyers wanting to do confused business with “Bob’s company” rather than with plaintiff. They admittedly are not styles and about whose goods they are buying; goods that plaintiff concedes are “traditional” designs in the public domain that can be copied by anyone. In fact, plaintiff's garments of others. (principally women’s pants and jackets) are themselves copies of designs and styles And, how is this known? Because it was Arochas himself, while employed by plaintiff, who copied these designs and styles from garments sold by others. Plaintiff does not have any “fair game” protectable interest in these styles and designs and, as demonstrated below, they are for anyone in the business -- just as defendants’ garments are! attributable to plaintiff not The fact that plaintiff's sales may have diminished is simply with the same skill, having replac ed Arochas with any one employee or a team of employees g prevents plaintiff from hiring experi ence and relationships with customers that he has. Nothin at better prices or otherwise equal or better replacements or delivering a better product plaintiff's apparent difficulties in recapturing its customers; its failure to do so is the reason for selling its products -- not anything that defendants have done. simply has no protectable As demonstrated below and in the opposing affidavit, plaintiff interest that warrants injunctive relief. The loss of business which it claims to be suffering is of a protectable trademark or original its own doing and could readily have been avoided by using h a long term employment contract) designs or by having kept Arochas in its employ (e.g., throug yment setting conducive to by subjecting him to a restrictive covenant, or by creating an emplo out of profits and to his remaining (which would have required plaintiff not to cheat Arochas to do, thus placing the oper: ate a legitimate business enterprise) - none of which plaintiff elected feet. blame for any losses it allegedly is suffering squarely at its own why neither the relief As more fully demonstrated below, there are a host of reasons are warranted. sought in the underlying action nor in this interim application er”. It has no common First, plaintiff does not have an exclusive right to the name “Ateli ff offers no proof to support its law trademark right in that name and for obvious reasons, plainti claim that the name has secondary meaning. As the United States Patent and Trademark Office which simply means “al (“USPTO”) has found on several occasions the word “Atelier”, arked or workshop or studio *! is a generic or descriptive term which cannot be tradem | The American Heritage Dictionary (3d Ed. 1994). entities listed in the directory appropriated to the exclusion of others. 2 Thus, there are countless er” in their name. See printout of the New York Department of State which have the word “Ateli Aff. Plaintiff's conclusory from N.Y. Department of State website, Exhibit F to the Arochas annually, its use of the assertion that, in a brief four years, selling a mere $6 million of goods ary meaning as longtime titans of word “Atelier” has somehow acquired the same sort of second industry such as “Gucci” or “Tiffany 1g Ss is patently absurd. Plaintiff offers absolutely no evidence - no evidence of moneys spent to support its exaggerated assertion of secondary meaning the word has acquired secondary advertising its “brand”, no consumer surveys showing that meaning, no media coverage. Nothing! For this reason alone the motion for provisional relief ark infringement and unfair should be denied and the underlying causes of action for tradem acquired secondary meaning competition based on plaintiff's use of the word “Atelier” having should be dismissed sua sponte. the line of clothing Second, Arochas did not use any proprietary information to create There is nothing unique or sold by his new employer, defendant D-Nach Ltd. (“D-Nach”). they were “create d” by Arochas original about their styles or designs. In fact, it is significant that copied from styles of in exactly the same way he “created” plaintiff's product line: they were any confidential information garments sold by others. Suffice it to say that Arochas did not use nothing proprietary about or trade secrets to help create D-Nach’s product line and there is simply outlets, and which were copied solid colored two-legged pants, which are being sold in retail g a trademark application for the mark 2 As one examining attorney for the USPTO has held in rejectin attached definition, is a ‘studio’ or “Atelier »”. “ATELIER, as translated by the applicant and defined in the from a designer studio or workshop. It is ‘workshop. > It is aterm that describes the source of the goods as coming ive. Attached are six (6) registrations with a widely used in the clothing field and r ‘outinely disclaimed as descript E to the accompanying Affidavit of Robert disclaimer of ATELIER used in connection with clothing. » See Exhibit Arochas (“Arochas Aff.”) (emphasis added). forth in the email about which from other manufacturers in the first place! Even the “specs” set ts of JMB garments, but plaintiff tries to “make such a big deal” are not even measuremen to “knock off”. (Arochas Aff., rather of garments of a retailer which JMB was itself seeking available on websites 419). These measurements, which are readily ascertainable and readily line they related to, and (Arochas Aff., 19), are not “proprietary” to the owner of the clothing certainly not proprietary at all to the plaintiff. have gotten their Third, plaintiff's unsupported conjecture that defendants could not begun competing with it products to market for the fall season unless Arochas had improperly while still employed is absolute nonsense. Again, as shown in the accompanying Arochas Aff. g defendants’ clothing line and the documentary evidence annexed, the process of manufacturin began after Arochas left plaintiff's employ. Plaintiffs speculation that this production could not have occurred in such a short time frame is flatly wrong. ood of success on the Plaintiff cannot and has not come close to demonstrating a likelih nary injunctive relief. merits of any of its claims, one of the mandatory prerequisites for prelimi contrary, the equities tip Nor can plaintiff show that the equities tip in its favor since, to the decisively in defendants’ favor". competitive In essence, plaintiff is attempting, through baseless assertions, to obtain a marketplace, due to defendants’ advantage from this Court that it knows it cannot achieve in the s. As set forth in his superior skill and experience and the superior fit and value of its garment t”.) 3 Exhibit C to the Affidavit of Marcella Law (the “Law Affidavi of likelihood of ultimate 4 “Preliminary injunctions are .. ‘drastic’ remedies which require a clear showing is granted and that the success on the merits, that the movant will s uffer irreparable injury unless the relief sought v. Di P’ ino, 109 A.D.2d 235, 240, 491 balance of the equities lies in favor of the movant.” Faberge Int'l, Inc. N.Y.S.2d 345, 349 (Ist Dept. 1985) (citations omitted). d of his rightful share of affidavit, Arochas is the wronged party here, having been cheate ss practices that made its profits plaintiff's profits by plaintiff's fraudulent accounting and busine It is ironic for plaintiff to now claim that defendants’ lawful activit y is conveniently disappear. profits during its six years endangering pl aintiff’s profits when plaintiff has never shown any real share of profits. It of existence! Plaintiff's misconduct goes beyond cheating Arochas out of his improprieties whi ch Arochas extends to business practices involving immigration and tax In addition to showing a balance discovered and complained about while in plaintiff's employ. it from securing any equitable of equities in defendants’ favor, plaintiff's “unclean hands” bars relief. opposition to plaintiff's As demonstrated below and in the accompanying affidavits in the facts to attempt to gain an unfair motion, plaintiff here has gone beyond playing “loose” with and unwarr: anted competitive advantage. Plaintiff has completely misportrayed its business, its it is not entitled both as a name and its garments in a desperate attempt to secure relief to which patently meritless that not only matter of fact and law. As shown below, plaintiff's claims are so dismissed by the court, sua must plaintiff's motion be denied but the underlying claims should be sponte. PLAINTIFF CANNOT SHOW A LIKELIHOOD OF SUCCESS ON THE MERITS Plaintiff Has No Common Law Trademark in the Name “Atelier” e proposition, Plaintiff's case is largely premised on a preposterous and unsupportabl meaning. What makes this namely, that plaintiff's “Atelier” mark has acquired secondary hstanding the volume of contention even more outrageous and preposterous is that notwit ted plaintiffs submission, there is not one iota of evidence to support this patently exaggera contention! plaintiff has All that is presented is the conclusory statement, repeated many times, that secondary the right to the “Atelier” mark which it claims (without any support) has acquired anyone else. meaning such that the name belongs exclusively to it and cannot be used by word While plaintiff seeks to elevate the name “Atelier”, a merely descriptive or generic “Levi's”, “Versace” or (it means salon or artist’s studio in French) to the likes of “Gucci”, “Tiffany 3 Ss , there is simply no basis to even think that this common word has achieved that protected status with respect to plaintiff's goods. To even suggest this proposition is absurd, given that: tions database there are 186 entities on the NYS Department of State, Division of Corpora that use the name “Atelier” as part of their name, 97 of which begin with the word “Atelier”. Trademark there are 16 federal registrations registered with the United States Patent and Office (“USPTO”) for marks in which the word ATELIER forms a part. twelve of those registrations disclaim the exclusive right to use the word “ATELIER” ated to apart from the trademark, recognizing that the word by itself cannot be appropri the exclusion of others since it is merely a descriptive or generic word.’ (“Disclaimer of 5 See 15 U.S.C. §1056; Trademark Manual of Examining Procedure §1213.03 is comprised in part of matter that, as applied to the unregistrable components of marks” at 1213.03(b)* If a mark be disclaime d to permit registration on the goods/services, is generic or doe: s. not function as a mark, th e matter must of the Act) or on the Supplemen tal Register.”) . See Miller Principal Register (including regi: stration under §2(f) Aff, 45. applied to the USPTO for «plaintiff's affiliate, BMJ International Co. Inc. (“BMJ”), in fact , women's dresses, trousers, the “Atelier” mark in class 25 for “Wearing apparel namely on the grounds, inter skirt, and sportswear”; the application was rejected by the USPTO alia, that it was confusingly similar to the registered mark ATELIER BY B. THOMAS 793, a result that for “Women’s outerwear, namely, jackets and coats ”°, Reg. No. 3,491, g with respect to would not have occurred if the word “Atelier” had secondary meanin plaintiff's goods.’ See accompanying affidavit of L. Miller. by plaintiff to the It is thus obvious that the “Atelier” mark is not subject to appropriation ants) has a right to use the exclusion of others. No person, including plaintiff (as well as defend y means “designer studio or word “atelier” by itself as a trademark because the word literall , e.g. “Atelier Versace”, workshop” and connotes designer goods of a very high quality AIMEE.’ “Classiques Entier Atelier Bella” (used by Nordstrom!), Atelier proposition that the And plaintiff, more than anyone, knows that its self-aggrandizing “Atelier” mark belongs exclusively to it has no merit because: for less than five * plaintiff has, by its own admissions, only been using the mark years;® e defendant Arochas’s mark “ATELIER LUXE” for “Ladies’ apparel, namely, blouses, jackets and ladies’ suits, sportswear, outerwear, tops, bottoms, pants, “However, the © Atelier File Wrapper Ser. No. 78760364, Final Office Action sent January 31, 2007: applied to applicant’s goods, would be likely examining attorney remains of the opinion that ap| plicant’s mark, when Trademark Act with the mark in Reg. No. 2,474,842 to cause confusion within the meaning of Section 2(d) of the B. THOMAS) as to Class 25. This refusal is maintaine d and made FINAL.” Miller Aff., Exh. D. (ATELIER BY 7 Miller Aff., see Exhs. G and H. USPTO for jeans” went unopposed by plaintiff and has been approved by the registration on the Principal Register for trademarks;? there is no proof that plaintiff has spent a “nickel” on advertising; by its sales the limited revenues which plaintiff claims have been generated ; (currently, six million dollars a year with little or no profit) purchasers (or there is no survey or comparable evidence to support the claim that ively with anyone else for that matter) associate the mark “Atelier” exclus plaintiff; Atelier”, and in plaintiff recently applied to the USPTO to register the mark “Bask a position completely its application disclaimed any rights to the word “Atelier” -- contrary to the position it now takes in this litigation! stinctive mark was Recently, a claim of secondary meaning for a similarly non-di used by numero’ us business entities. summarily rejected, where as here, the name was commonly 2010 U.S. Dist. LEXIS Shear Contractors, Inc. v. Shear Enterprises & Gen. Contracting, that mere “conclusory 122173, *21 (N.D.N.Y. November 16, 2010). The court found me the “heavy burden” and statements” to support such a claim are insufficient to overco of secondary meaning: “rigorous evidentiary requirements” necessary to support a claim Plaintiff] has offered no tangible evidence to establish secondary meaning. Aside from the fact that [plaintiff] has been in existence for twenty-five years, during which time it has continuously used the “Shear” mark, [plaintiff] offers only conclusory statements and generalities . .. without providing any evidence of advertising 8 See Plaintiff's Memorandum of Law at 2. 2010. It will register in due course. ® Ser, No. 85002685 approved for registration on November 13, Miller Aff., 94 fn.1. expenditures or success, consumer studies, sales number, or other probative information or data.” (Citations omitted) Shear, supra, 2010 U.S. Dist. LEXIS 122173 at *10."° The same result is compelled by New York common law.'' Absent a showing that a name has distinctive quality or is one which has acquired secondary meaning in the public’s mind, an unregistered mark is not legally protectable. Allied Maintenance Corp. v. Allied Mechanical Trades, Inc., 42 N.Y.2d 538, 543, 399 N.Y.S.2d 628, 369 N.E.2d 1162 (1977). As the New York Court of Appeals explained in Allied Maintenance, supra, merely descriptive words or generic names are not protectable absent a showing of secondary meaning. Its explanation of why the word “allied” is merely descriptive and cannot function as a trademark is onall “fours” with why plaintiff has no protectable right in the word “atelier”: [I]t is quite apparent that the name "Allied" is a weak trade name. Rather than being distinctive, arbitrary, fanciful or coined, it is, in essence, generic or descriptive. Although the name "Allied" evidentiary 10 “Secondary meaning is an inherently fact-bound determination entailing vigorous requirements, and the bur: den of proof rests on the party asserting exclusive rights in the mark ... .”. The Jewish Sephardic Yellow Pages, Ltd. vy. DAG Media, Inc., 478 F.Supp.2d 340, 344 (E.D.N.Y. 2007) (citations, internal quotations, omitted) (granting summary judgment dismissing trademark in: fringement action where plaintiff failed to demonstrate that its registered trademark had acquired secondary meaning). Accord Ergotron, Inc. v. Hergo Ergonomic Support Systems, Ind., 1996 WL 143903, *7 (S.D.N.Y. 1996)(“A party attempting to show that its ons omitted); Jack product has acquired secondary meaning has a heavy burden”, which plaintiff did not meet)(citati 2002 U.S. Dist. Lexis 2569! 9, *68 (Mag. Recommendation), adopted Schwartz Shoes, Inc. v. Skechers U.S.A., Inc., 2002)(“The burden of proving secondary meaning rests with Plaintiff by the Court at 233 F.Supp.2d 512 (S.D.N.Y. requirements .”)(citation s, internal quotations, omitted). The factors to be and entails vigorous evidentiary advertising expenditures; (2) considered in determining whether a mark has acquired secondary meaning include “(1) the mark; and (6) consumer studies; (3) sales success; (4) unsolicited media coverage; (5) attempts to plagiarize Accord Ergotron, length and exclusivity of the mark’s use.” Jewish Sephardic, supra, 478 F.Supp.2d at 344. ng secondary supra, 1996 WL 143903 at *7. “A consumer survey is the most important element in demonstrati meaning, because such a survey provides direct evidence.” Ergotron, supra, 1996 WL 143903 at *8 (citations omitted). Here, plaintiff has not only failed to proffer this “most important” evidence, it has failed to proffer any evidence of secondary meaning. 4! «qplaintiff’s] claims of trademark infringement and unfair competition under New York State common law must fail since there is "no difference in the relevant principles under either [state or federal] law.” Shear, supra, 2010 U.S. Dist. LEXIS 122173 at *20 citing Safeway Stores, Inc. v. Safeway Props., Inc., 307 F.2d 495, 497 0.1 (2d Cir. 1962). bespeaks of more originality than " maintenance", it is nevertheless acommon word in English usage today. There is nothing in the name "Allied Maintenance" itself which indicates that it is an inherently strong trade name susceptible to dilution. Nor can it be said that the name Allied Maintenance has acquired a secondary meaning. Plaintiff seeks to prevent the defendant from using the word "allied" in any connection with its business. To establish secondary meaning it must be shown that through exclusive use and advertising by one entity, a name or mark has become so associated in the mind of the public with that entity or its product that it identifies the goods sold by that entity and distinguishes them from goods sold by others. A quick glance at the New York City phone directories will reveal the existence of at least 300 business entities in the metropolitan area incorporating the word "allied" in their trade name. In light of the large number of business entities using the generic term allied in their trade name, it cannot be said that the name "allied" has acquired a secondary meaning. We remain unconvinced that the public associates the word "allied" with the plaintiff's cleaning and maintenance service. l citations Allied Maintenance, supra, 42 N.Y.2d at 545-546 (emphasis supplied) (interna omitted)'?. including Similarly, “atelier” is a common word in use by others in the clothing business owners of federally registered trademarks. It is a name included in the corporate names of almost said, by itself, to have two hundred businesses in New York State alone, and cannot possibly be 's acquired secondary meaning such as to associate that word only with plaintiff or plaintiff (3d 2 See Camelot Assocs. v. Camelot Design & Dev. LLC, 298 A.D.2d 799, 800 750 N.Y.S.2d 155, 156 “plaintiff did not Dep’t 2002) (affirming summary judgment t rejecting claim of trademark infringement where has developed a secondary meaning associated with plaintiff in produce any evidence that the trade name ‘Camelot’ 715 547 N.Y.S.2d 714, the public's mind”); Buffalo Packaging C ‘orp. v. Buff-Pac, Inc., 155 A.D.2d 877, 878, establish either that its name was (N.Y.A.D. 4 Dept.,1989) (affirming dismissal whe re“[p]laintiff's proof failed to distinctive or had acquired a secondary meaning in the marketplace”); see also V.S. Distribs. v. Emkay Trading “the generic Corp., 1 A.D.3d 35 (0, 350-351 (2d Dep't 2003) (rejecting plai intiff’s claim of unfair competitionlackwhere any special Russian word ‘Tvorog’ and the descriptive terms attached t 10 it, ‘Soft Cheese Russian Style,” f not have the exclusive right to appropriate these words). qualities and, therefore, the plaintifdid 10 pervasive goods. Indeed, plaintiff has not provided an iota of evidence to show that through its use and advertising, the word has come to be associated with it and it alone." f assumed the By choosing a mark that is neither fanciful, unique nor distinctive, plaintif it did not risk that others would use the same name. And, certainly, plaintiff very well knew that application to have exclusive rights to use of the word “Atelier” since the USPTO rejected its actually had trademark that very name — a rejection that would not have occurred had plaintiff Aff., (8. That the any cognizable claim to the exclusive use of the word “Atelier”. See Miller highlighted by word “Atelier” as used by plaintiff does not have secondary meaning, is further “Bask Atelier”. In plaintiff's disclaimer of the same word in its recent application for the mark to the exclusive use of connection with that trademark application, plaintiff disclaimed any right it professes the word “Atelier” less than a month before it instituted the instant action in which the exact opposite! See Miller Aff, 419. Plaintiff's disclaimer to the USPTO would not have contends)! occurred had its use of the mark “Atelier” acquired secondary meaning (as it now about any Since plaintiff has no rights to the name “Atelier” it has no basis to complain k. Thus, confusion with defendant’s use of its (soon to be registered) ATELIER LUXE trademar trademark not only is there no basis for a preliminary injunction, but plaintiff's claims for Inc. v. infringement and unfair competition must be dismissed. Shear, supra. See Sally Gee, Myra Hogan, Inc., 699 F.2d 621, 624 (2d Cir. 1983) (citing Allied, supra). or In sum, plaintiff's conclusory contentions about the mark having secondary meaning the mark “Atelier that its “good will” in the mark is being damaged by defendants’ use of — are patently Luxe”—a mark which in fact had been approved by the USPTO for registration have Nor has plaintiff identified any unique or distinctive non-functional aspects of its trade dress that 11 od of baseless. Plaintiff has not demonstrated, nor can it, that it has a substantial likeliho will” in the name succeeding on its claims based on secondary meaning or damage to its “good law. As such, the “Atelier”. In fact, the exact opposite has been established here as a matter of lawsuit, comes “house of cards” which plaintiff has attempted to construct, in the form of this protectable tumbling down with the demolition of its fundamental premise — that it has a interest, good will, or exclusive rights to the name “Atelier”. B. Plaintiff Has No Proprietary Rights in the Apparel It Sells designs and Plaintiff's contention that it has proprietary rights in non-distinctive, copied s as its claim styles that are in the public domain is as factually and legally flawed and meritles about the name “atelier” having secondary meaning. The moving papers make clear that plaintiff's products which are the subject of this apparel'*. action, pants and jackets, are unremarkable, non-distinctive, garden variety, everyday is anything Plaintiff itself characterizes them as “traditional” and there is no showing that there unique or proprietary about them. Plaintiff makes no claim that its garments are copyrighted or putting copyrightable. In fact, it was Defendant Arochas, who was the one responsible for for plaintiff, together the plaintiff's line of clothes. As he explains in his affidavit, while working he Arochas simply copied designs and styles of other pants and jackets sold in the stores—t typical modus operandi for th