Brown et al v. Young

Filing 5

Notice of Motion and Motion for Preliminary Injunction; Memorandum of Points and Authorities in Support filed by Bella Bridesmaid, LLC, Bridget Brown. Motion Hearing set for 7/19/2011 10:00 AM in Courtroom 2, 5th Floor, San Jose before Magistrate Judge Howard R. Lloyd. (Attachments: # 1 Declaration of Bridget Brown, # 2 Declaration of Dawn Newton, # 3 t Declaration of Jeff Tofanelli, # 4 Declaration of Whitney Slatkin, # 5 Declaration of Kevin Chin, # 6 Declaration of Andrew Weeks, # 7Declaration of Nancy Chin, # 8Declaration of Amy Kuschel, # 9 Declaration of Lindsie Jones, # 10 Declaration of Angie Silvy, # 11 Supplement Briefing Schedule, # 12(Proposed) Order )(Newton, Dawn) (Filed on 6/10/2011) Text modified on 6/13/2011; incorrect event type used when posting Declarations (bw, COURT STAFF).

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DAVID C. LEE #193743
DAWN NEWTON #209002
ILSE C. SCOTT #233433
FITZGERALD ABBOTT & BEARDSLEY LLP
1221 Broadway, 21st Floor
Oakland, California 94612
Telephone: [phone]
Facsimile: [phone]
Emails: [e-mail]; [e-mail];
[e-mail]

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Attorneys for Plaintiffs
Bridget Brown and Bella Bridesmaid, LLC

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UNITED STATES DISTRICT COURT

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NORTHERN DISTRICT OF CALIFORNIA - SAN JOSE

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BRIDGET BROWN and BELLA
BRIDESMAID, LLC

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Plaintiffs,
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vs.

Case No.: C11-02517 HRL
DECLARATION OF BRIDGET BROWN
IN SUPPORT OF PLAINTIFFS’
MOTION FOR PRELIMINARY
INJUNCTION

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YVONNE YOUNG,
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Defendant.

Date: July 19, 2011
Time: 10:00 a.m.
Dept. Courtroom 2, 5th Floor

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I, BRIDGET BROWN, declare as follows:

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1.

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I am a Plaintiff in this action. I have personal knowledge of the facts contained

in this declaration and, if called as a witness, I would testify competently thereto.
2.

In 2000, I founded a luxury boutique carrying high end bridesmaid attire, and

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operating under the brand name Bella Bridesmaid. I began Bella Bridesmaid as a single store

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location on Union Street, in San Francisco, California. The concept I created was to have a

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boutique that catered specifically to bridesmaids, carrying gowns and accessories suitable for

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bridal parties.

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3.

Over the next decade, I developed Bella Bridesmaid into a nationwide franchise,

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with locations from coast to coast. Today there are more than 40 Bella Bridesmaid locations in

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26 states. Attached as Exhibit A is a map showing the locations of current Bella Bridesmaid

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boutiques across the United States.

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4.

Bella Bridesmaid boutiques carry high end gowns, and have a number of

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exclusive arrangements with designers whose dresses are not carried in any other stores. The

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stores operate by appointment only and are designed to provide an intimate and luxurious

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environment for a bride and her bridal party to view and order dresses.

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While Bella Bridesmaid boutiques are designed to cater primarily to bridesmaids,

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my San Francisco flagship boutique also carries wedding gowns. In addition, the stores are

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frequently visited by brides who are interested in purchasing a bridesmaid dress in white or

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ivory and wearing it as a wedding gown, either because they prefer the simpler design of a

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bridesmaid dress compared to the average wedding gown or because the price of a bridesmaid

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gown is lower than the typical wedding gown.
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Since 2000, while expanding the Bella Bridesmaid name nationwide, I have

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continued to operate the original Bella Bridesmaid storefront location in San Francisco as the

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chain’s flagship store, located at 2250 Union Street, Suite 1B, in San Francisco, California.

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7.

The San Francisco boutique is widely known throughout the San Francisco

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wedding industry. Since 2000, I have continuously advertised Bella Bridesmaid in both local

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and national magazines. Since its inception, Bella Bridesmaid LLC, Bella Bridesmaid

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Franchises, LLC (the franchising entity) and I have collectively spent tens of thousands of

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dollars on promoting the Bella Bridesmaid name. Between December 2008 and today, I have

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spent $19,000 on advertising in San Francisco Brides, a leading local publication read by brides

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who are planning their weddings. Bella Bridesmaid has also continuously advertised four times

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a year in the national magazine Martha Stewart Weddings since 2006, and this year took out a

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full page advertisement in the national magazine C Magazine.

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8.

As a result of the extensive advertising and promotional efforts for the boutiques’

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high end services, Bella Bridesmaid’s marks are widely and favorably recognized and relied

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upon by the consuming public in the bridal industry as indicating luxury services originating

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exclusively from Bella Bridesmaid. Since I opened the flagship San Francisco Bella

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Bridesmaid location, the brand has received unsolicited and unpaid mentions in more than 50

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magazine articles, e-zines and blogs, including San Francisco Magazine, SF Gate, SF Weekly,

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San Francisco Brides magazine, The Examiner blog (examiner.com), The Bride’s Guide (the

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Martha Stewart Weddings magazine blog), 7x7 Magazine’s blog, Daily Candy

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(dailycandy.com), Paper City (papercitymag.com), Pink Blossom List blog

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(pinkblossomlist.blogspot.com), The City Sage blog (annesage.com), Style Me Pretty blog

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(stylemepretty.com), Amy Nichols’ blog (amynichols.com, a San Francisco wedding planner),

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and the Lovely Little Details blog (lovelylittledetails.com).

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We have also received accolades in the San Francisco Baylist’s Best of the Bay

annual contest, in which popular Bay Area businesses in various categories are nominated and

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voted by the public. In both 2010 and 2011, Bella Bridesmaid received 2nd place for “Best

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Wedding Dresses.” (baylist.cityvoter.com/bella-bridesmaid/biz/118926)

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10.

In order to protect the extensive goodwill symbolized by the mark, I sought and

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obtained a federal registration for the mark, BELLA BRIDESMAID + Design, for retail store

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services featuring bridal clothing and accessories on the Principal Register of the United States

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Patent and Trademark Office (“USPTO”) Registration Number 3,114,088, with a registration

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dated July 11, 2006 (the “Mark”). A true and correct copy of the USPTO’s listing for this

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registration is attached hereto as Exhibit B and incorporated herein by reference.

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In or about November 2009, I first learned that a new bridal boutique had opened

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in San Francisco at 1821 Steiner Street, which had signage for a bridal salon advertising itself as

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“The Bella Bride.” “The Bella Bride” storefront was just 0.8 miles away from Bella Bridesmaid

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Attached as Exhibit C is a print-out from Google Maps, showing the distance between Bella

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Bridesmaid’s San Francisco location and 1821 Steiner Street, San Francisco. Prior to the

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opening of “The Bella Bride,” the storefront at 1821 Steiner Street had operated as a bridal salon

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called L’Ezu Atelier, a business which never had any negative impact on Bella Bridesmaid and

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had never been confused with my store, to my knowledge.

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DECLARATION OF BRIDGET BROWN - CASE NO. C11-02517 HRL
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I subsequently discovered that on June 1, 2009, Yvonne Young registered the

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domain name "thebellabride.com" as the URL for her Internet website. The domain name for

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Bella Bridesmaid is "bellabridesmaid.com," a domain name I have owned and used in

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commerce in connection with the Bella Bridesmaid federally registered trademark since 2000.

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In response to these discoveries, I contacted Ms. Young, notified her of the

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infringement on Bella Bridesmaid’s Mark, and asked her to change the name of her salon. After

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a personal meeting with my husband and me, Ms. Young agreed to change the name of her

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salon to “Yve’s” and said that she would start that transition by putting “Yve’s” in front of her

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store name. Based on her representation that she was moving away from “The Bella Bride” to

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“Yve’s,” I accepted her proposal and agreed to allow her a reasonable time in which to modify

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her signage to reflect “Yve’s Bella Brides” as an interim name. True and correct copies of the

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e-mail exchanges between myself and Ms. Young, reflecting our agreement, are attached hereto

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as Exhibits D-L.

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Initially, Ms. Young told me that she would have the name change completed

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before May 2010. When she later told me that the change was more complicated than she had

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anticipated and was taking longer but was still in process, I agreed to allow her the additional

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time she needed to complete the change. I know firsthand the demands of operating a small

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business, and I have prided myself on having a positive relationship with others in the wedding

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industry in San Francisco, so I was willing to provide her with some leeway, since she assured

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me continuously that the name change would happen soon.

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I now believe that Ms. Young had no intention of changing her business name or

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that she has deliberately delayed changing her business name despite her promises to me, in

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order to continue trading on the tremendous goodwill associated with my nationally recognized

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Mark and enormous reputation in San Francisco. Even the easiest steps that she could have

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taken to minimize or eliminate confusion were not taken. She now shows absolutely no

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indication of eventually changing her name to “Yve’s” and has refused to even stop using “The

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Bella Bride.”

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Ms. Young assured me that she always answers the phones at her business as

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“Yve’s Bella Bride” and that she was doing everything she could both to limit any confusion

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between our two businesses and to help with the transition to her new business name. In April

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2011, I received an angry call from a bride who said I had not returned multiple voicemail

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messages she had left for me. After I determined that she had been leaving messages for “Yve’s

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Bella Bride,” I called that store to hear its outgoing voicemail message. The voicemail message

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referred to the store exclusively as “The Bella Bride” and repeated that name twice. It never

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mentioned Yve. On April 25, 2011, I recorded that voicemail message as it played over the

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phone. Attached as Exhibit M is a true and correct transcription of the voicemail message I

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recorded.
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As of June 7, 2011, the organic search results for “The Bella Bride” in San

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Francisco show that Ms. Young is advertising her business online as “The Premiere San

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Francisco Bridal Salon: The Bella Bride.” Nothing in the listing references Yve. The second

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listing, which is also hers, lists “Trunk Shows and Bridal Events at The Bella Bride, San

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Francisco, CA,” also omitting any reference to Yve or “Yve’s Bella Bride.” A true and correct

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copy of this printout from Google is attached as Exhibit N.

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To date, Ms. Young’s signage currently continues to reference “The Bella Bride”

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and until today she continued to use her “thebellabride.com” domain. This morning (June 10th),

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I learned that Ms. Young has changed her site, undoubtedly in response to this lawsuit, of which

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she has notice. If you go directly to www.thebellabride.com, there is a blank page with no

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content. However, the sub-pages for that web site remain active, including

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www.thebellabride.com/yves and www.thebellabride.com/events. True and correct screenshots

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of these pages are attached as Exhibit O. In addition, the search engine listings for Ms. Young’s

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new site, which is apparently www.yvesbellabrides.com, still reference “The Bella Bride.” A

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true and correct screenshot showing the search engine listing is attached as Exhibit P.

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DECLARATION OF BRIDGET BROWN - CASE NO. C11-02517 HRL
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Since November 2009, after “The Bella Bride” opened, I have been contacted by

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wedding industry vendors who thought that Bella Bridesmaid might be expanding into

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traditional bridal gowns, as well as by customers who confused the two stores. I have received

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numerous comments and inquiries from individuals who believe that “The Bella Bride” is

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related to Bella Bridesmaid. I have also received complaints from customers who have assumed

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that there is a relationship between the two businesses. The declarations submitted together

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with this one represent only a small fraction of the contacts I have received regarding confusion

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between the two businesses.

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Given the ongoing confusion of Bella Bridesmaid with “The Bella Bride,” I am

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extremely worried that Bella Bridesmaid’s goodwill and profits will be negatively impacted. I

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have invested a great deal of time and money in building up Bella Bridesmaid’s goodwill and

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recognition, and am concerned that customer and vendor confusion with “The Bella Bride” will

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undermine those efforts.

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I no longer believe that Ms. Young will cooperate in trying to eliminate

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confusion between our two stores, which was the basis for my willingness to allow her to

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temporarily continue using the phrase “Bella Bride” in a portion of her store’s name. Until we

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brought legal action, she took none of the steps she repeatedly promised would do very quickly,

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and it now appears that she has no intention of moving toward “Yve’s” as the name of her

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business at all.

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In San Francisco, spring and fall are the two “wedding seasons” in the dress

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business, and we see much higher traffic during those seasons. We have now suffered through a

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couple of busy seasons with Ms. Young’s infringement, while I attempted to be supportive of a

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small business in my industry and relied on Ms. Young’s promises of a coming name change. If

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Ms. Young’s continuing trademark infringement is not enjoined immediately, we will have to

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suffer through another fall high season while fighting the confusion and negative impact of her

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infringement. My business will be negatively impacted and Bella Bridesmaid’s name and

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goodwill will continue to be harmed.

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