Abercrombie & Fitch Trading Co. v. Beauty Encounter, Inc. et al

Filing 8

MEMO ENDORSEMENT with respect to 1 Motion to Compel. ENDORSEMENT: Prestige Beauty Group shall inform the Court by letter on the docket by January 29, 2024, whether it consents to transfer of the motion to compel to the United States District Court for the Central District of California pursuant to Federal Rule of Civil Procedure 45(f). SO ORDERED. (Signed by Judge Lewis J. Liman on 1/19/2024) (tg) Modified on 1/19/2024 (tg).

Case 1:23-mc-00492-LJL Document 1 Filed 12/20/23 Page 1 of 8

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

Prestige Beauty Group shall inform the Court by letter on the docket
by January 29, 2024, whether it consents to transfer of the motion to
compel to the United States District Court for the Central District of
California pursuant to Federal Rule of Civil Procedure 45(f).
Date: January 19, 2024

In the Matter of Subpoena Issued to
Third-Party Prestige Beauty Group,
LLC in Action Pending in the United
States District Court for the Central
District of California entitled

Misc Case No. 1:23-mc-00492

ABERCROMBIE & FITCH
TRADING, CO., an Ohio Corporation,

MEMORANDUM OF POINTS AND
AUTHORITIES IN SUPPORT OF
PLAINTIFF’S MOTION TO
COMPEL FURTHER RESPONSES
AND DOCUMENTS IN RESPONSE
TO SUBPOENA AGAINST
PRESTIGE BEAUTY GROUP, LLC

Plaintiff,
v.

Pending in Central District of
California, Case No. 8:23-cv-00496WLH-ADSx

BEAUTY ENCOUNTER, INC., a
California Corporation; A.A. IRIE
PERFUME, INC., a Florida
Corporation; HAZ
INTERNATIONAL, INC., a Delaware
Corporation; L.A. FRAGRANCES,
INC., a California Corporation;
NANDANSONS INTERNATIONAL,
INC., a New York Corporation; PM
TRADING CORP, a California
Corporation; PRESTIGE BEAUTY
GROUP, LLC, a New Jersey limited
liability company; and DOES 1-10,
inclusive,
Defendants.
MEMORANDUM OF POINTS AND AUTHORITIES
I.

INTRODUCTION
This Motion to Compel concerns defaulting defendant and third-party

Prestige Beauty Group, LLC’s (“Prestige”) failure to produce documents in
response to the Subpoena issued by plaintiff Abercrombie & Fitch Trading, Co.
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO
COMPEL

Case 1:23-mc-00492-LJL Document 1 Filed 12/20/23 Page 2 of 8

(“Plaintiff” or “Abercrombie”). In this trademark infringement and counterfeiting
matter, Plaintiff asserts that Prestige, as well as other defendants, manufactured,
distributed, offered for sale, and/or sold the “Accused Products” – fragrance
products that imitate legitimate Abercrombie FIERCE cologne as shown below:

What started as a case against a single defendant – Beauty Encounter, Inc.
(“Beauty Encounter”) – is turning out to be an intricate and seemingly neverending web of infringers. Plaintiff made several investigative purchases of the
Accused Products from Beauty Encounter and confirmed they were counterfeit.
Through discovery, Plaintiff tracked Beauty Encounter’s suppliers, the largest of
which appears to be Prestige, who purchased more than $2 million worth of the
Accused Products from a Singaporean entity. Abercrombie does not sell to nor has
ever authorized this Singaporean entity to sell legitimate Abercrombie products.
Although Plaintiff is aware of two of Prestige’s customers – Beauty
Encounter and defendant PM Trading Corp (“PM Trading”) – Prestige conceals
documents relating to its sales of the Accused Products (among other things) by
conspicuously stating that it is “not in possession nor has any documents” in
response to Plaintiff’s Subpoena for Documents. These responses are not only
questionable in light of Prestige’s sophisticated operations, but also ignores the
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO
COMPEL

Case 1:23-mc-00492-LJL Document 1 Filed 12/20/23 Page 3 of 8

“custody or control” tenet of FRCP 45. Accordingly, Plaintiff brings this Motion
to compel Prestige’s further responses and documents to confirm that Prestige has
conducted a diligent search and reasonable inquiry as required and that all
responsive documents in its “possession, custody, and control” have been
produced.
II.

STATEMENT OF RELEVANT FACTS
On March 20, 2023, Plaintiff filed its initial Complaint against Beauty

Encounter in the Central District of California. Through discovery, Plaintiff
learned that Beauty Encounter purchased the Accused Products from six suppliers,
including PM Trading and Prestige. Blakely Decl. ¶ 2. PM Trading also obtained
the Accused Products from Prestige and another entity. Id.
On August 18, 2023, Plaintiff issued a Subpoena to Produce Documents to
Prestige, who was served with the same on August 21, 2023. Blakely Decl. ¶ 3,
Exhs. A, B. The Subpoena requested Prestige to comply at Plaintiff’s counsel’s
New York office, 247 Water Street, Unit 1, New York, New York 10038, which is
within 100 miles of Prestige, located at 5 Sutton Place, Edison, New Jersey 08817.
Id.; Fed. R. Civ. Proc. 45(c). Prestige’s response was due September 1, 2023.
Blakely Decl. ¶ 3.
On October 2, 2023, Plaintiff filed its First Amended Complaint adding
Prestige (and others) as a defendant. Blakely Decl. ¶ 4. As Prestige failed to
Answer, the Clerk entered default against Prestige. Id.
On December 1, 2023, Prestige finally responded to the Subpoena at issue in
this Motion. Blakely Decl. ¶ 5, Exh. C. The only documents it provided were
invoices and purchase orders between Prestige and its supplier in Singapore. Id.
On December 4, 2023, Plaintiff began meeting and conferring with Prestige
by asking whether Prestige has any other documents responsive to the Subpoena,
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO
COMPEL

Case 1:23-mc-00492-LJL Document 1 Filed 12/20/23 Page 4 of 8

including but not limited to, sales records, given Plaintiff is aware of at least two of
Prestige’s customers (PM Trading and Beauty Encounter). Blakely Decl. ¶ 6.
On December 5, 2023, pursuant to the CDCA’s Local Rules, Plaintiff issued
a meet and confer letter to Prestige and requested a teleconference within 10 days.
Blakely Decl. ¶ 7. To date, Plaintiff has not heard a response from Prestige nor
received any further documents. Id.
III. FURTHER RESPONSES AND DOCUMENTS ARE WARRANTED
Plaintiff requests further responses and/or documents to Request Nos. 1, 2,
6-8, 11. In response to each of these document requests, Prestige indicates that it
“is not in possession nor has any documents [or communications] as identified” in
the Request. Blakely Decl., Exh. C (emphasis added).
Prestige’s responses ignore the “custody or control” prong of FRCP 34 & 45
such that it unclear whether Prestige has (a) conducted a diligent search and
reasonable inquiry and (b) produced any responsive documents in its custody or
control, rather than documents in its mere possession. See Fed. R. Civ. Proc.
45(a)(1)(A)(iii) (commanding a third party to produce documents “in that person’s
possession, custody, or control”); Allstate Ins. Co. v. A & F Med. P.C., 2016 U.S.
Dist. LEXIS 168554 at *13 fn. 3, *18-19 (E.D.N.Y. Dec. 6, 2016) (ordering nonparty to produce documents within his “control” and not just his possession when
his response to the subpoena only noted he had no documents within his
possession); Ramos v. Swatzell, 2014 U.S. Dist. LEXIS 202043 at *7 (C.D. Cal.
Aug. 6, 2014) (ordering third party to affirm in response to the subpoena that they
have conducted a diligent search and all responsive documents in their possession,
custody, and control have been produced); Am. Fedn. of musicians of U.S. & Can.
v. 212 Prods. LLC, 2022 U.S. Dist. LEXIS 20917 at *30 (C.D. Cal. Jan. 10, 2022)
(same); In re ATM Fee Antitrust Litig., 233 F.R.D. 542, 545 (N.D. Cal. 2005)
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO
COMPEL

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(Rule 45 and Rule 34 document requests reach documents within possession,
custody, or control of the subpoenaed person); In re Weatherford Int’l Sec. Litig.,
2013 U.S. Dist. LEXIS 154446 at *6-7 (S.D.N.Y. Oct. 28, 2013) (noting the
“possession, custody, or control” requirement of FRCP 34 applies to subpoenas
under FRCP 45).
These responses are also questionable in light of Prestige’s sophisticated
operations and the fact that Prestige has at least two known customers – Beauty
Encounter and PM Trading. The only documents Prestige produced were in
response to Request No. 3, which asks for importation documents. Blakely Decl. ¶
3, Exhs. A, C. Prestige produced invoices and purchase orders between it and its
Singaporean supplier which total approximately $2.7 million worth of purchases of
the Accused Products. Blakely Decl., Exh. C. While it conceivable that smaller
businesses may fail to keep adequate records of its sales, emails, and customer
information, it begs the question why a large entity such as Prestige claims it has
zero documents in its “possession”, especially when the purchases occurred as
recent as 2022. Blakely Decl. ¶ 5.
For example, Request No. 8 asks for documents “sufficient to identify all
PERSONS who purchased one or more ACCUSED PRODUCTS from YOU.”
Blakely Decl., Exh. A. Responsive documents would include purchase orders,
invoices, letters, emails, etc. from Prestige to its customers which identify the
customer’s contact information. In fact, Beauty Encounter has produced some
invoices relating to its purchase of the Accused Products from Prestige, so why
does Prestige claim it has no documents with any of its customers, including but
not limited to Beauty Encounter? Prestige is likely harboring this information in
an attempt to salvage its business relationships, but that is not a proper objection to
withhold documents. In any event, Prestige’s objections are waived due to
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COMPEL

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Prestige’s untimely response to the Subpoena and Prestige indeed did not formally
raise any. See Fed. R. Civ. Proc. 45(d)(2)(B).
Without understanding who Prestige’s customers are, Plaintiff is prevented
from further investigating the reach of the infringement. Plaintiff is entitled to
discover who else is selling the Accused Products. Because trademark
infringement claims are centered around a consumer’s likelihood of confusion,
every instance in which a consumer purchases a product from a business causes
further harm to Plaintiff and expands the playing field for consumers to be
confused. See AMF, Inc. v. Sleekcraft Boats, 599 F.2d 341 (9th Cir. 1979). These
unidentified entities are also potential defendants. Lockheed Martin Corp. v.
Network Solutions, Inc., 1997 U.S. Dist. LEXIS 10314 at *8-9 (C.D. Cal. Mar. 19,
1997) (any member of the distribution chain can be sued); North Face Apparel
Corp. v. Dahan, 2014 U.S. Dist. LEXIS 201737 at *17-18 (C.D. Cal. Mar. 14,
2014) (“members of a common distribution are jointly and severally liable for
trademark infringement”).
Further, documents relating to Prestige’s customers would identify the
amount of units sold to its customers and the sales derived from the same.
Prestige’s profits are relevant to Plaintiff’s recoverable damages under 15 U.S.C. §
1117(a) should Prestige set aside the default and continue litigating the matter. 15
U.S.C. § 1117(a) (plaintiff is entitled to recover defendant’s profits). Only
disclosing how much Prestige purchased from its suppliers is just one part of the
equation.
In addition, Request Nos. 1, 2, 6, and 11 include communications documents
(i.e., emails, letters, memoranda, etc.) regarding the Accused Products, Prestige,
Beauty Encounter, and Prestige’s suppliers and/or manufacturers of the Accused
Products. Blakely Decl., Exh. A. Emails between Prestige and its suppliers or
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COMPEL

Case 1:23-mc-00492-LJL Document 1 Filed 12/20/23 Page 7 of 8

customers relating to the Accused Products are highly relevant to Plaintiff’s
trademark infringement claims. For example, emails showing Prestige
acknowledges the counterfeit nature of the Accused Products (or on the flip side,
any claimed authenticity) would provide evidence of willfulness. Adobe Sys. v.
Cain, 2008 U.S. Dist. LEXIS 97227 at *11 (N.D. Cal. Oct. 22, 2008) (“willful
infringement requires ‘knowledge that the defendant’s conduct constitutes
trademark infringement’”). In this modern age of technology, it has become the
norm for businesses to communicate via email and sometimes text messages.
Accordingly, it begs the question why Prestige claims to have no responsive
documents, albeit only in its “possession.”
Finally, No. 7 requests agreements between Prestige and Beauty Encounter
relating to the Accused Products. Beauty Encounter specifically specifies what
types of agreements (i.e., contracts) it is looking for within the Request – “design,
development, procurement, supply, sales and invoicing, marketing, licensing, and
indemnification.” Blakely Decl., Exh. A. Similar to the communications
documents, any agreements that might discuss the authenticity (or lack thereof) of
the Accused Products or any agreement (or lack thereof) in Prestige indemnifying
Beauty Encounter is relevant to Plaintiff’s trademark infringement lawsuit.
Prestige’s response makes it unclear whether a diligent search and reasonable
inquiry has been performed and whether there are documents within Prestige’s
“custody or control”, and not just its mere possession.
Further, in light of Prestige’s failure to participate in the California action,
Plaintiff is prejudiced from being able to obtain further discovery from Prestige.
Although Plaintiff has issued a subpoena for Prestige’s appearance at deposition, it
is likely that Prestige will also fail to comply in light of the fact that it has failed to
communicate or cooperate with Plaintiff thus far. Therefore, this Court should
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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO
COMPEL

Case 1:23-mc-00492-LJL Document 1 Filed 12/20/23 Page 8 of 8

grant Plaintiff’s Motion in order to provide Plaintiff with means to conduct
discovery against Prestige.
IV. CONCLUSION
For the foregoing reasons, this Court should order Prestige to affirm that it
has conducted a diligent search and inquiry in response to the Subpoena Requests
at issue and compel Prestige to produce responsive documents in its possession,
custody, or control to Request Nos. 1, 2, 6-8, 11.

Dated:

December 20, 2023

BLAKELY LAW GROUP

By:

/s/ Brent H. Blakely___________
Brent H. Blakely (BB1966)
247 Water St., Unit 1
New York, New York 10038
Telephone: [phone]
Email: [e-mail]
Attorneys for Plaintiff
Abercrombie & Fitch Trading Co.

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MEMORANDUM OF POINTS AND AUTHORITIES IN SUPPORT OF PLAINTIFF’S MOTION TO
COMPEL

Case 1:23-mc-00492-LJL Document 1-1 Filed 12/20/23 Page 1 of 3

SOUTHERN DISTRICT OF NEW YORK
In the Matter of Subpoena Issued to
Third-Party Prestige Beauty Group,
LLC in Action Pending in the United
States District Court for the Central
District of California entitled

Misc Case No. 1:23-mc-00492

ABERCROMBIE & FITCH
TRADING, CO., an Ohio Corporation,

DECLARATION OF BRENT H.
BLAKELY IN SUPPORT OF
PLAINTIFF’S MOTION TO
COMPEL FURTHER RESPONSES
AND DOCUMENTS IN RESPONSE
TO SUBPOENA AGAINST
PRESTIGE BEAUTY GROUP, LLC

Pending in Central District of
California, Case No. 8:23-cv-00496WLH-ADSx

Plaintiff,
v.
BEAUTY ENCOUNTER, INC., a
California Corporation; A.A. IRIE
PERFUME, INC., a Florida
Corporation; HAZ
INTERNATIONAL, INC., a Delaware
Corporation; L.A. FRAGRANCES,
INC., a California Corporation;
NANDANSONS INTERNATIONAL,
INC., a New York Corporation; PM
TRADING CORP, a California
Corporation; PRESTIGE BEAUTY
GROUP, LLC, a New Jersey limited
liability company; and DOES 1-10,
inclusive,
Defendants.

DECLARATION OF BRENT H. BLAKELY
I, Brent H. Blakely, declare as follows:
1.

I am an attorney with Blakely Law Group, counsel of record for

plaintiff Abercrombie & Fitch Trading, Co. (“Plaintiff” or “Abercrombie”) in the
above-referenced action. I have personal knowledge of the facts stated herein,
and if called as a witness, I would and could testify competently thereto. I make
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DECLARATION OF BRENT H. BLAKELY IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL

Case 1:23-mc-00492-LJL Document 1-1 Filed 12/20/23 Page 2 of 3

this declaration in support of Plaintiff’s Motion to Compel Further Responses and
Documents in Response to Subpoena Against Prestige Beauty Group, LLC
(“Prestige”).
2.

On March 20, 2023, Plaintiff filed its initial Complaint against

defendant Beauty Encounter, Inc. (“Beauty Encounter”) in the Central District of
California.

Through discovery, my office learned that Beauty Encounter

purchased the Accused Products from six suppliers, including defendant PM
Trading Corp (“PM Trading”) and Prestige.

PM Trading also obtained the

Accused Products from Prestige and another entity.
3.

On August 18, 2023, Plaintiff issued a Subpoena to Produce

Documents to Prestige, who was served with the same on August 21, 2023. The
Subpoena requested Prestige to comply at my firm’s New York office, 247 Water
Street, Unit 1, New York, New York 10038, which is within 100 miles of
Prestige, located at 5 Sutton Place, Edison, New Jersey 08817.

Prestige’s

response was due September 1, 2023. Attached as Exhibit A is a true and correct
copy of the Subpoena. Attached as Exhibit B is a true and correct copy of the
proof of service.
4.

On October 2, 2023, Plaintiff filed its First Amended Complaint

adding Prestige (and others) as a defendant. As Prestige failed to Answer, the
Clerk entered default against Prestige.
5.

On December 1, 2023, Prestige provided its responses to the

Subpoena at issue in this Motion. The only documents it provided were invoices
and purchase orders between Prestige and its supplier in Singapore.

These

invoices show that Prestige purchased the Accused Products for approximately
$2.7 million from 2020-2022. Attached as Exhibit C is a true and correct copy of
Prestige’s responses.
6.

On December 4, 2023, my office began meeting and conferring with
2

DECLARATION OF BRENT H. BLAKELY IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL

Case 1:23-mc-00492-LJL Document 1-1 Filed 12/20/23 Page 3 of 3

Prestige by asking whether Prestige has any other documents responsive to the
Subpoena, including but not limited to, sales records, given Plaintiff is aware of
at least two of Prestige’s customers (PM Trading and Beauty Encounter). My
office did not receive a response.
7.

On December 5, 2023, pursuant to CDCA’s Local Rules, my office

issued a meet and confer letter to Prestige and requested a teleconference within
10 days. To date, my office has not heard a response from Prestige nor received
any further documents.
I declare under penalty of perjury under the laws of the United States of
America that the foregoing is true and correct.
Executed on December 20, 2023 in Manhattan Beach, California.
_/s/ Brent Blakely_______
Brent Blakely

3
DECLARATION OF BRENT H. BLAKELY IN SUPPORT OF PLAINTIFF’S MOTION TO COMPEL

Case 1:23-mc-00492-LJL Document 1-2 Filed 12/20/23 Page 1 of 34

EXHIBIT A

Case 1:23-mc-00492-LJL Document 1-2 Filed 12/20/23 Page 2 of 34

1
2
3
4
5
6

Brent H. Blakely (SBN 157292)
[e-mail]
Jamie Fountain (SBN 316567)
[e-mail]
BLAKELY LAW GROUP
1334 Parkview Avenue, Suite 280
Manhattan Beach, California 90266
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
Abercrombie & Fitch Trading, Co.

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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ABERCROMBIE & FITCH TRADING, ) CASE NO.: 8:23-cv-00496-JVS-(ADS)
)
CO., an Ohio Corporation,
)
)
) NOTICE OF PLAINTIFF
Plaintiff,
)
v.
) ABERCROMBIE & FITCH
) TRADING, CO.’S ISSUANCE OF
BEAUTY ENCOUNTER, INC., a ) SUBPOENA TO PRODUCE
)
California Corporation; and DOES 1-10, ) DOCUMENTS TO THIRD-PARTY,
) PRESTIGE BEAUTY GROUP, LLC
inclusive,
)
)
Defendant.
)
)
)
)
)

21
22

TO ALL PARTIES AND THEIR ATTORNEYS OF RECORD:

23
24

PLEASE TAKE NOTICE that Plaintiff Abercrombie & Fitch Trading, Co.

25

has issued and intends to serve Prestige Beauty Group, LLC a New Jersey limited

26

liability company with a principal place of business at 5 Sutton Place, Edison, New

27

Jersey 08817 the following Subpoena to Produce Documents, Information, or

28

Objects, as fully set forth in Attachment A to the Subpoena.
1

NOTICE OF PLAINTIFF ABERCROMBIE & FITCH TRADING, CO.’S ISSUANCE OF SUBPOENA
TO PRODUCE DOCUMENTS TO THIRD-PARTY, PRESTIGE BEAUTY GROUP, LLC

Case 1:23-mc-00492-LJL Document 1-2 Filed 12/20/23 Page 3 of 34

1
2
3
4
5

DATED:

August 18, 2023

By:

Jamie Fountain
/s/ ______________
Brent H. Blakely
Jamie Fountain
BLAKELY LAW GROUP
Attorneys for Plaintiff
Abercrombie & Fitch Trading, Co.

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2

NOTICE OF PLAINTIFF ABERCROMBIE & FITCH TRADING, CO.’S ISSUANCE OF SUBPOENA TO
PRODUCE DOCUMENTS TO THIRD-PARTY, PRESTIGE BEAUTY GROUP, LLC

Case 1:23-mc-00492-LJL Document 1-2 Filed 12/20/23 Page 4 of 34
AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action

UNITED STATES DISTRICT COURT
for the

Central District
ofof
California
__________
District
__________
ABERCROMBIE & FITCH TRADING CO.
Plaintiff

v.

BEAUTY ENCOUNTER, INC.
Defendant

)
)
)
)
)
)

Civil Action No. 8:23-cv-00496

SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION
PRESTIGE BEAUTY GROUP LLC
5 Sutton Place, Edison, NJ 08817

To:

(Name of person to whom this subpoena is directed)

✔
u Production: YOU ARE COMMANDED to produce at the time, date, and place set forth below the following

documents, electronically stored information, or objects, and to permit inspection, copying, testing, or sampling of the
material: See Attachment A.

Place: BLAKELY LAW GROUP

Date and Time:

247 Water Street, Unit 1
New York, New York 10038

09/01/2023 12:00 pm

u Inspection of Premises: YOU ARE COMMANDED to permit entry onto the designated premises, land, or
other property possessed or controlled by you at the time, date, and location set forth below, so that the requesting party
may inspect, measure, survey, photograph, test, or sample the property or any designated object or operation on it.
Place:

Date and Time:

The following provisions of Fed. R. Civ. P. 45 are attached – Rule 45(c), relating to the place of compliance;
Rule 45(d), relating to your protection as a person subject to a subpoena; and Rule 45(e) and (g), relating to your duty to
respond to this subpoena and the potential consequences of not doing so.
Date:

08/18/2023

CLERK OF COURT
OR
/s/ Jamie Fountain
Signature of Clerk or Deputy Clerk

Attorney’s signature

Plaintiff
The name, address, e-mail address, and telephone number of the attorney representing (name of party)
, who issues or requests this subpoena, are:
Brent Blakely- [e-mail] [phone];
Jamie Fountain - [e-mail] [phone]; 1334 Parkview Ave. Ste. 280 Manhattan Beach, CA 

Notice to the person who issues or requests this subpoena
If this subpoena commands the production of documents, electronically stored information, or tangible things or the
inspection of premises before trial, a notice and a copy of the subpoena must be served on each party in this case before
it is served on the person to whom it is directed. Fed. R. Civ. P. 45(a)(4).

Case 1:23-mc-00492-LJL Document 1-2 Filed 12/20/23 Page 5 of 34
AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action (Page 2)

Civil Action No. 2:23-cv-2051
PROOF OF SERVICE
(This section should not be filed with the court unless required by Fed. R. Civ. P. 45.)
I received this subpoena for (name of individual and title, if any)
on (date)

.
u I served the subpoena by delivering a copy to the named person as follows:
on (date)

; or

u I returned the subpoena unexecuted because:
.
Unless the subpoena was issued on behalf of the United States, or one of its officers or agents, I have also
tendered to the witness the fees for one day’s attendance, and the mileage allowed by law, in the amount of
$
My fees are $

.
for travel and $

for services, for a total of $

I declare under penalty of perjury that this information is true.
Date:
Server’s signature

Printed name and title

Server’s address

Additional information regarding attempted service, etc.:

0.00

.

Case 1:23-mc-00492-LJL Document 1-2 Filed 12/20/23 Page 6 of 34
AO 88B (Rev. 02/14) Subpoena to Produce Documents, Information, or Objects or to Permit Inspection of Premises in a Civil Action(Page 3)

Federal Rule of Civil Procedure 45 (c), (d), (e), and (g) (Effective 12/1/13)
(c) Place of Compliance.
(1) For a Trial, Hearing, or Deposition. A subpoena may command a
person to attend a trial, hearing, or deposition only as follows:
(A) within 100 miles of where the person resides, is employed, or
regularly transacts business in person; or
(B) within the state where the person resides, is employed, or regularly
transacts business in person, if the person
(i) is a party or a party’s officer; or
(ii) is commanded to attend a trial and would not incur substantial
expense.
(2) For Other Discovery. A subpoena may command:
(A) production of documents, electronically stored information, or
tangible things at a place within 100 miles of where the person resides, is
employed, or regularly transacts business in person; and
(B) inspection of premises at the premises to be inspected.
(d) Protecting a Person Subject to a Subpoena; Enforcement.
(1) Avoiding Undue Burden or Expense; Sanctions. A party or attorney
responsible for issuing and serving a subpoena must take reasonable steps
to avoid imposing undue burden or expense on a person subject to the
subpoena. The court for the district where compliance is required must
enforce this duty and impose an appropriate sanction—which may include
lost earnings and reasonable attorney’s fees—on a party or attorney who
fails to comply.
(2) Command to Produce Materials or Permit Inspection.
(A) Appearance Not Required. A person commanded to produce
documents, electronically stored information, or tangible things, or to
permit the inspection of premises, need not appear in person at the place of
production or inspection unless also commanded to appear for a deposition,
hearing, or trial.
(B) Objections. A person commanded to produce documents or tangible
things or to permit inspection may serve on the party or attorney designated
in the subpoena a written objection to inspecting, copying, testing, or
sampling any or all of the materials or to inspecting the premises—or to
producing electronically stored information in the form or forms requested.
The objection must be served before the earlier of the time specified for
compliance or 14 days after the subpoena is served. If an objection is made,
the following rules apply:
(i) At any time, on notice to the commanded person, the serving party
may move the court for the district where compliance is required for an
order compelling production or inspection.
(ii) These acts may be required only as directed in the order, and the
order must protect a person who is neither a party nor a party’s officer from
significant expense resulting from compliance.
(3) Quashing or Modifying a Subpoena.
(A) When Required. On timely motion, the court for the district where
compliance is required must quash or modify a subpoena that:
(i) fails to allow a reasonable time to comply;
(ii) requires a person to comply beyond the geographical limits
specified in Rule 45(c);
(iii) requires disclosure of privileged or other protected matter, if no
exception or waiver applies; or
(iv) subjects a person to undue burden.
(B) When Permitted. To protect a person subject to or affected by a
subpoena, the court for the district where compliance is required may, on
motion, quash or modify the subpoena if it requires:
(i) disclosing a trade secret or other confidential research,
development, or commercial information; or

(ii) disclosing an unretained expert’s opinion or information that does
not describe specific occurrences in dispute and results from the expert’s
study that was not requested by a party.
(C) Specifying Conditions as an Alternative. In the circumstances
described in Rule 45(d)(3)(B), the court may, instead of quashing or
modifying a subpoena, order appearance or production under specified
conditions if the serving party:
(i) shows a substantial need for the testimony or material that cannot be
otherwise met without undue hardship; and
(ii) ensures that the subpoenaed person will be reasonably compensated.
(e) Duties in Responding to a Subpoena.
(1) Producing Documents or Electronically Stored Information. These
procedures apply to producing documents or electronically stored
information:
(A) Documents. A person responding to a subpoena to produce documents
must produce them as they are kept in the ordinary course of business or
must organize and label them to correspond to the categories in the demand.
(B) Form for Producing Electronically Stored Information Not Specified.
If a subpoena does not specify a form for producing electronically stored
information, the person responding must produce it in a form or forms in
which it is ordinarily maintained or in a reasonably usable form or forms.
(C) Electronically Stored Information Produced in Only One Form. The
person responding need not produce the same electronically stored
information in more than one form.
(D) Inaccessible Electronically Stored Information. The person
responding need not provide discovery of electronically stored information
from sources that the person identifies as not reasonably accessible because
of undue burden or cost. On motion to compel discovery or for a protective
order, the person responding must show that the information is not
reasonably accessible because of undue burden or cost. If that showing is
made, the court may nonetheless order discovery from such sources if the
requesting party shows good cause, considering the limitations of Rule
26(b)(2)(C). The court may specify conditions for the discovery.
(2) Claiming Privilege or Protection.
(A) Information Withheld. A person withholding subpoenaed information
under a claim that it is privileged or subject to protection as trial-preparation
material must:
(i) expressly make the claim; and
(ii) describe the nature of the withheld documents, communications, or
tangible things in a manner that, without revealing information itself
privileged or protected, will enable the parties to assess the claim.
(B) Information Produced. If information produced in response to a
subpoena is subject to a claim of privilege or of protection as
trial-preparation material, the person making the claim may notify any party
that received the information of the claim and the basis for it. After being
notified, a party must promptly return, sequester, or destroy the specified
information and any copies it has; must not use or disclose the information
until the claim is resolved; must take reasonable steps to retrieve the
information if the party disclosed it before being notified; and may promptly
present the information under seal to the court for the district where
compliance is required for a determination of the claim. The person who
produced the information must preserve the information until the claim is
resolved.
(g) Contempt.
The court for the district where compliance is required—and also, after a
motion is transferred, the issuing court—may hold in contempt a person
who, having been served, fails without adequate excuse to obey the
subpoena or an order related to it.

For access to subpoena materials, see Fed. R. Civ. P. 45(a) Committee Note (2013).

Case 1:23-mc-00492-LJL Document 1-2 Filed 12/20/23 Page 7 of 34

ATTACHMENT A

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Pursuant to Rule 45 of the Federal Rules of Civil Procedure, YOU ARE
COMMANDED to produce documents, electronically stored information, or objects
in accordance with the following definitions and instructions.
I.

DEFINITIONS AND INSTRUCTIONS
Unless a contrary meaning clearly appears in the context, the following

definitions shall apply and be used herein, regardless of whether upper- or
lower-case letters are used:
A.

“YOU,” and “YOUR,” refers to Prestige Beauty Group, LLC and its

past or present

affiliates,

partnerships, partners,

and

parents,
all

subsidiaries,

related

entities,

directors, employees, internal and outside

predecessors,
as

well

counsel,

successors,

as

agents,

its

officers,

representatives,

consultants, and any person acting under its control or on its behalf.
B.
Plaintiff

“PLAINTIFF”
Abercrombie

or
&

&

FITCH”

Co.

and

“ABERCROMBIE
Fitch

Trading,

refers
its

to

parent

company, Abercrombie & Fitch Trading Company, in this Civil Action.
C.

“DEFENDANT” refers to Defendant Beauty Encounter, Inc.,

including any past or present affiliates, parents, subsidiaries, predecessors,
successors, partnerships,

partners,

and

all

related

entities,

as

well

as

officers, directors, employees, internal and outside counsel, agents, representatives,
consultants, and any person acting on its behalf.
D.

“COMPLAINT” refers to the most recent Complaint filed by PLAINTIFF

in the present action. Attached here as Exhibit 1.
E. “ABERCROMBIE & FITCH TRADING, CO. MARKS” refers collectively
to the Abercrombie & Fitch Trading, Co., FIERCE, ABERCROMBIE, and
ABERCROMBIE & FITCH word trademarks, design trademarks, word plus design
composite trademarks identified by U.S. registration number in Paragraph 8 of the
COMPLAINT.

1

ATTACHMENT A

Case 1:23-mc-00492-LJL Document 1-2 Filed 12/20/23 Page 8 of 34

1

F. “ACCUSED PRODUCTS” refers to any product designed, manufactured,

2

advertised, marketed, distributed, offered for sale, and/or sold by DEFENDANTS that

3

bears identical or confusingly similar reproduction of any one or more of the

4

ABERCROMBIE & FITCH TRADING, CO.’s MARKS as exemplified in Paragraph

5

18 of the COMPLAINT and reproduced below for reference:

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7
8
9
10
11
12
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15
16
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G.

“PERSON(S)” shall mean a natural person, firm, association, organization,

partnership, business trust, corporation, or public entity.
H.

“DOCUMENT(S)” refers to and means any physical document or

18

electronically stored information on any medium, as defined in Federal Rule of Civil

19

Procedure 34(a), including, but not limited to, papers, writings, tangible objects, letters,

20

correspondence, bills, memoranda, electronic mail (“email”), messages, laboratory

21

books, reports, photographs, computer presentations, electronic files, electronic

22

transmissions, computer data, video or audio, spreadsheets, facsimiles, drawings,

23

blueprints, and notes.

24

I.

“COMMUNICATE” and “COMMUNICATIONS” shall mean the

25

transmittal of information in the form of facts, ideas, inquiries, or otherwise, which

26

include any meeting, conference, face-to-face conversation, e-mail communication,

27

telephone conversation, or conference or communication used by any media, as well as

28

any written, taped, or recorded communication of any kind whatsoever.
2

ATTACHMENT A

Case 1:23-mc-00492-LJL Document 1-2 Filed 12/20/23 Page 9 of 34

1

J.

“IDENTIFY” person(s), for each person identified, provide: (i) the full

2

name, last known address, and telephone number; (ii) his/her employer, position, and

3

title; and (iii) a general description of relevant information he/she has knowledge of.

4

K.

“DESCRIBE” facts, events, or circumstances, provide a narrative of all

5

your knowledge regarding such facts, events, or circumstances, including an

6

explanation of: (i) where and when any such facts, events, and circumstances occurred;

7

and (ii) the actions and conduct of all person(s) involved in such facts, events, and

8

circumstances.

9

L.

“REFERRING” or “RELATING” means any subject matter in connection

10

with, comprising, consisting, indicating, describing, evidencing, showing, discussing,

11

commenting on, considering, recommending, dealing with, identifying,

12

incorporating, mentioning, pertaining to or involving in any way, in whole or in part,

13

the subject matter “REFERRING” or “RELATING” to.

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ATTACHMENT A

Case 1:23-mc-00492-LJL Document 1-2 Filed 12/20/23 Page 10 of 34

1
2
3

DOCUMENTS YOU ARE COMMANDED TO PRODUCE
SUBPOENAED DOCUMENT NO. 1
All COMMUNICATIONS between YOU and DEFENDANT that refer or relate

4

to ABERCROMBIE & FITCH.

5

SUBPOENAED DOCUMENT NO. 2

6

All COMMUNICATIONS between YOU and DEFENDANT that refer or relate

7

to the ACCUSED PRODUCTS.

8

SUBPOENAED DOCUMENT NO. 3

9

All DOCUMENTS that refer or relate to the importation into the United States

10

of any ACCUSED PRODUCTS, including but not limited to U.S. Customs

11

Declarations, Bill of Ladings, Invoices, and any other documentation provided to any

12

third-party freight forwarder, warehousing agent, or U.S. governmental entity

13

regarding the importation of fragrance products identified as Abercrombie® Fierce®,

14

regardless of whether such products where imported by YOU for, on behalf of, or at

15

the direction of DEFENDANT or through third-party intermediaries.

16

SUBPOENAED DOCUMENT NO. 4

17

All DOCUMENTS relating to the supply of any ACCUSED PRODUCTS to

18

DEFENDANT, including but not limited to suggestions, ideas, strategies,

19

recommendations, and decisions regarding how, when, where, and why any

20

ACCUSED PRODUCTS are transported, distributed, shipped, and delivered to

21

DEFENDANT, and by whom.

22

SUBPOENAED DOCUMENT NO. 5

23

All DOCUMENTS and COMMUNICATIONS that refer or relate to

24

DEFENDANT’S decision to sell any ACCUSED PRODUCTS, including but not

25

limited to documents analyzing, considering, and/or assessing manufacturing and

26

supply costs, profits, revenue, and sales of any ACCUSED PRODUCTS.

27

SUBPOENAED DOCUMENT NO. 6

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4

ATTACHMENT A

Case 1:23-mc-00492-LJL Document 1-2 Filed 12/20/23 Page 11 of 34

1

All DOCUMENTS provided to DEFENDANT that contains any one or more of

2

the terms “ABERCROMBIE,” “ABERCROMBIE & FITCH,” and “FIERCE,”

3

regardless of the order or placement of the terms, including but not limited to all

4

COMMUNICATIONS with DEFENDANT such as e-mails, notes, and memoranda in

5

which any one or more of said terms appear in either the body, subject, heading, or

6

attachment(s) of such COMMUNICATIONS.

7

SUBPOENAED DOCUMENT NO. 7

8

All DOCUMENTS that refer or relate to any agreement between YOU and

9

DEFENDANT concerning any ACCUSED PRODUCTS, including but not limited to

10

contracts which YOU and DEFENDANT entered into related to the design,

11

development, procurement, supply, sales and invoicing, marketing, licensing, and

12

indemnification from liability arising from any ACCUSED PRODUCTS.

13

SUBPOENAED DOCUMENT NO. 8

14

All DOCUMENTS sufficient to identify all PERSONS who purchased one or

15

more ACCUSED PRODUCTS from YOU for resale purposes (ie. non-retail

16

customers).

17

SUBPOENAED DOCUMENT NO. 9

18

All DOCUMENTS that refer or relate to YOUR acquisition, purchase, and

19

procurement of ACCUSED PRODUCTS, including PERSONS involved in the

20

acquisition, purchase, and procurement of ACCUSED PRODUCTS.

21

SUBPOENAED DOCUMENT NO. 10

22

All DOCUMENTS that refer or relate to the Suppliers, distributors,

23

manufacturers of ACCUSED PRODUCTS offered for sale and/or sold by YOU that

24

bear one or more ABERCROMBIE & FITCH TRADING, CO. MARKS.

25

SUBPOENAED DOCUMENT NO. 11

26

All DOCUMENTS and COMMUNICATIONS regarding the source of the

27

ACCUSED PRODUCTS; source meaning from the manufacture and any distributors

28

where the ACCUSED PRODUCTS was purchased and/or sold by YOU.
5

ATTACHMENT A

Case 1:23-mc-00492-LJL Document 1-2 Filed 12/20/23 Page 12 of 34

1
Respectfully,

2
3
4
5
6
7

DATED:

August 18, 2023

By:

Jamie Fountain
/s/ ______________
Brent H. Blakely
Jamie Fountain
BLAKELY LAW GROUP
Attorneys for Plaintiff
Abercrombie & Fitch Trading, Co.

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ATTACHMENT A

Case 1:23-mc-00492-LJL Document 1-2 Filed 12/20/23 Page 13 of 34

EXHIBIT 1

Case
Case
8:23-cv-00496
1:23-mc-00492-LJL
Document
Document
1 Filed1-2
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Filed 12/20/23
Page 1 of Page
15 Page
14 ofID
34#:1

1
2
3
4
5
6
7

Brent H. Blakely (SBN 157292)
[e-mail]
Jamie Fountain (SBN 316567)
[e-mail]
BLAKELY LAW GROUP
1334 Parkview Avenue, Suite 280
Manhattan Beach, California 90266
Telephone: [phone]
Facsimile: [phone]
Attorneys for Plaintiff
Abercrombie & Fitch Trading, Co.

8

UNITED STATES DISTRICT COURT

9

CENTRAL DISTRICT OF CALIFORNIA

10
11
12
13
14
15
16
17
18
19
20
21
22
23

ABERCROMBIE & FITCH TRADING, )
CO., an Ohio Corporation,
)
)
)
Plaintiff,
)
)
)
v.
)
BEAUTY ENCOUNTER, INC., a
)
)
California Corporation; and DOES
)
1-10, inclusive,
)
)
Defendant.
)
)
)
)
)
)
)
)
)
)
)

CASE NO.: 8:23-cv-496
COMPLAINT FOR DAMAGES AND
EQUITABLE RELIEF:
1. FEDERAL TRADEMARK
INFRINGEMENT UNDER THE
LANHAM ACT
2. FALSE DESIGNATION OF
ORIGIN AND FALSE
ADVERTISING
3. TRADEMARK INFRINGEMENT
UNDER CALIFORNIA COMMON
LAW
4. UNFAIR COMPETITION IN
VIOLATION OF CAL. BUS. &
PROF. CODE § 17200 et seq.
5. UNFAIR COMPETITION UNDER
CALIFORNIA COMMON LAW
JURY TRIAL DEMANDED

24
25
26
27
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1
COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF

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Plaintiff Abercrombie & Fitch Trading, Co. (“Abercrombie” or “Plaintiff”)

2

for its Complaint against Defendant BEAUTY ENCOUNTER, INC. (“Beauty

3

Encounter”) and DOES 1-10 (collectively “Defendant”) alleges as follows:
JURISDICTION AND VENUE

4
5

1.

This action arises out of Defendant’s complicit and unlawful acts

6

constituting trademark infringement and unfair competition under the Lanham Act, 15

7

U.S.C. § 1051, et seq. (the “Lanham Act”), for related claims under the statutory and

8

common law of the State of California.

9

2.

This Court has subject matter jurisdiction over the federal claims asserted

10

in this action under 28 U.S.C. §§ 1331 and 1338(a) and supplemental jurisdiction over

11

Plaintiff’s state law claims pursuant to 28 U.S.C. § 1367(a) because they are so related

12

to the federal claims that they form part of the same case or controversy.

13

3.

This Court has personal jurisdiction over Defendant pursuant to 28

14

U.S.C. § 1400 because Defendant maintains its headquarters and/or reside in and have

15

committed acts of infringement in this district.

16

4.

Venue is proper under 28 U.S.C. §§ 1391(b)-(c) because a substantial

17

part of the events or omissions giving rise to the claims alleged occurred in this

18

judicial district, and 28 U.S.C. § 1400(b) because Defendant committed acts of

19

infringement in this judicial district.
THE PARTIES

20
21

5.

Plaintiff Abercrombie & Fitch Trading, Co. is a corporation organized

22

and existing under the laws of the state of Ohio with an office and principal place of

23

business located at 6301 Fitch Path, New Albany, Ohio 43054. Abercrombie operates

24

retail outlets throughout the United States, including within this district. Abercrombie

25

has been, in part, engaged in the business of manufacturing and distributing

26

throughout the world, including within this district, clothing and other goods under

27

multiple world-famous common law and federally registered trademarks, including

28

those identified in Paragraph 8 below.
2
COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF

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6.

Upon information and belief, Defendant Beauty Encounter, Inc. is a

2

corporation organized and existing under the laws of the state of California with an

3

office and principal place of business located at 18480 Pacific Street, Fountain Valley,

4

California 92708.
7.

5

Abercrombie is informed and believes that, together with Beauty

6

Encounter, other individuals and entities currently named as DOES 1-10 may also be

7

responsible in one manner or another for the wrongs alleged herein, in that at all

8

relevant times, each one (including Beauty Encounter) was the agent and servant of

9

the others and acting within the course and scope of said agency and employment.

10

These other individuals and entities are sued under fictitious names DOES 1-10

11

because their true names and capacities are currently unknown to Abercrombie.

12

Abercrombie will seek leave to amend this Complaint when the true names and

13

capacities of DOES 1-10 are ascertained.
ALLEGATIONS COMMON TO ALL CAUSES OF ACTION

14
15
16

A.

Abercrombie’s Trademark Rights
8.

Abercrombie is the owner of all rights in and to the following

17

trademarks, which are valid and registered on the Principal Register of the United

18

States Patent and Trademark Office (collectively the “Abercrombie Marks”):
Registration Registration
Trademark
Class / Goods
Number
Date
ABERCROMBIE &
September IC 003 – Cologne
FITCH
1,999,665
10, 1996

19
20
21
22
23
24
25
26

FIERCE

ABERCROMBIE

2,713,598

3,343,871

May 6, 2003

IC 003 - Personal care
products namely, fragrances

IC 003 - Fragrances,
November 27, namely, colognes and
2007
perfumes

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28
3
COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF

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Registration
Number

Trademark

2

Registration
Date

Class / Goods

July 2, 2013

IC 003 - Body lotion; Body
spray used as a personal
deodorant and as fragrance;
Body sprays; Cologne;
Deodorants for personal use;
Fragrances for personal use;
Hair shampoos; Perfume
and Shower and bath gel

3
4
5

ABERCROMBIE &
FITCH

4,361,667

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7
8
9
10
11
12
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20
21
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25
26
27
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The Abercrombie Marks are used in conjunction with the manufacture and
distribution of high-quality goods in the categories identified above. True and correct
copies of the Certificates of Registration for the Abercrombie Marks are attached
hereto as Exhibit “1.”
9.

The above U.S. registrations for the Abercrombie Marks are valid,

subsisting, in full force and effect, and many are incontestable pursuant to 15 U.S.C. §
1065. The registrations for the Abercrombie Marks constitute prima facie evidence of
their validity and of Abercrombie’s exclusive right to use the Abercrombie Marks
pursuant to 15 U.S.C. § 1057(b). The Abercrombie Marks have been used exclusively
and continuously by Abercrombie and have never been abandoned.
10.

The Abercrombie Marks have been used in interstate commerce to

identify and distinguish Abercrombie’s quality goods for an extended period of time
and the Abercrombie Marks have been used by Abercrombie long prior in time to
Defendant’s use of copies of the Abercrombie Marks
11.

The Abercrombie Marks have achieved tremendous fame and

recognition, which has only added to the distinctiveness of the marks. As a result, the
Abercrombie Marks are both famous marks and valuable assets. As such,
Abercrombie has built substantial goodwill in the Abercrombie Marks, which is of
incalculable and inestimable value to Abercrombie.
12.

The Abercrombie Marks have been widely promoted, both in the United
4
COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF

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States and throughout the world, and are famous and widely recognized trademarks. In

2

fact, Abercrombie expends substantial resources developing, advertising and

3

otherwise promoting the Abercrombie Marks.
13.

4

Abercrombie extensively uses, advertises, and promotes the Abercrombie

5

Marks in the United States in association with the sale of quality goods and has

6

carefully monitored and policed the use of the Abercrombie Marks.
14.

7

The Abercrombie Marks are distinctive signifying to the purchaser that

8

the products come from Abercrombie and are manufactured to Abercrombie’s quality

9

standards. All genuine Abercrombie products are inspected and approved by or on

10

behalf of Abercrombie prior to distribution and sale. As a result of Abercrombie’s

11

efforts, members of the consuming public readily identify merchandise bearing or sold

12

under the Abercrombie Marks, as being quality goods sponsored and approved by

13

Abercrombie.
15.

14
15

Accordingly, the Abercrombie Marks have achieved secondary meaning

as identifiers of quality goods.
16.

16

Genuine goods bearing the Abercrombie Marks are widely legitimately

17

advertised, promoted, and sold by Abercrombie to consumers in every state, including

18

California, through Abercrombie & Fitch® retail stores and through the official

19

abercrombie.com website.

20

B.

21

Defendant’s Infringing Activities
17.

Upon information and belief, Defendant is engaged in the wholesale and

22

retail sale of fragrance products through Beauty Encounter retail stores, third-party

23

retailers, including Amazon, Stylicy, eBay, and Walmart, and Defendant’s website

24

beautyencounter.com, which is available to consumers nationwide.

25

18.

The present lawsuit arises from Defendant’s design, manufacture,

26

distribution, advertisement, marketing, offering for sale, and sale of fragrance

27

products which infringe upon Plaintiff’s rights to the Abercrombie Marks (“Accused

28

Products”), an exemplar of which is shown below, through Defendant’s retail store,
5
COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF

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website, eBay store (“beautyencounter” (143839)), Walmart marketplace, and

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Amazon:

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4
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7
8
9
10
11

19.

Abercrombie is informed and believes and herein alleges that Defendant

12

is a competitor and has introduced the Accused Products into the stream of commerce

13

to exploit Abercrombie’s reputation in the market established in the Abercrombie

14

Marks, brand, and products.

15
16
17

20.

Abercrombie has not granted a license or any other form of permission to

Defendant with respect to any of its trademarks or other intellectual property.
21.

Upon information and belief, Defendant may have sold additional

18

products that infringe upon Abercrombie’s trademarks or other intellectual property.

19

Abercrombie will seek leave to amend as additional information becomes available

20

through discovery.

21

22.

Abercrombie is informed and believes and herein alleges that Defendant

22

acted in bad faith and that Defendant’s acts have misled and confused and were

23

intended to cause confusion, or to cause mistake, or to deceive as to the affiliation,

24

connection, or association of the Accused Products with Abercrombie, or as to the

25

origin, sponsorship, or approval of the Accused Products by Abercrombie.

26

FIRST CLAIM FOR RELIEF

27

(Trademark Infringement and Counterfeiting - 15 U.S.C. § 1114)

28

23.

Abercrombie incorporates by reference each and every one of the
6
COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF

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preceding paragraphs as though fully set forth herein.
24.

This is a trademark infringement action against Defendant based on its

3

unauthorized use in commerce of counterfeit imitations of the federally registered

4

Abercrombie Marks in connection with the sale, offering for sale, distribution, and/or

5

advertising of infringing goods. The Abercrombie Marks are highly distinctive marks.

6

Consumers have come to expect the highest quality from Abercrombie products sold,

7

offered for sale, or marketed under the Abercrombie Marks.

8

25.

Defendant has sold, offered to sell, marketed, distributed, and advertised,

9

and is still selling, offering to sell, marketing, distributing, and advertising products

10

using counterfeit reproductions of the Abercrombie Marks without Abercrombie’s

11

permission.

12

26.

Abercrombie is the exclusive owner of the Abercrombie Marks.

13

Abercrombie’s United States Registrations for the Abercrombie Marks are in full

14

force and effect. Upon information and belief, Defendant has knowledge of

15

Abercrombie’s rights in the Abercrombie Marks, and is willfully infringing and

16

intentionally using counterfeits of the Abercrombie Marks. Defendant’s willful,

17

intentional and unauthorized use of the Abercrombie Marks is likely to cause and is

18

causing confusion, mistake, and deception as to the origin and quality of the

19

counterfeit Accused Products among the general public.

20
21
22

27.

Defendant’s activities constitute willful trademark infringement and

counterfeiting under Section 32 of the Lanham Act, 15 U.S.C. § 1114.
28.

Abercrombie has no adequate remedy at law, and if Defendant’s actions

23

are not enjoined, Abercrombie will continue to suffer irreparable harm to its

24

reputation and the goodwill of its well-known Abercrombie Marks.

25

29.

The injuries and damages sustained by Abercrombie have been directly

26

and proximately caused by Defendant’s wrongful reproduction, use, advertisement,

27

promotion, offering to sell, and sale of counterfeit Abercrombie products.

28

30.

In light of the foregoing, Plaintiff is entitled to injunctive relief
7
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prohibiting Defendant from using any of the Abercrombie Marks and/or any marks

2

identical and/or confusingly similar thereto, and to recover from Defendant all

3

damages, including attorney’s fees, that Plaintiff has sustained and will sustain as a

4

result of such infringing acts, and all gains, profits and advantages obtained by

5

Defendant as a result thereof, in an amount not yet known, as well as the costs of this

6

action pursuant to 15 U.S.C. § 1117(a), attorneys’ fees and treble damages pursuant to

7

15 U.S.C. § 1117 (b), and/or statutory damages pursuant to 15 U.S.C. § 1117(c).

8

SECOND CLAIM FOR RELIEF

9

(False Designations of Origin and False Descriptions - 15 U.S.C. § 1125(a))

10
11
12

31.

Abercrombie incorporates by reference each and every one of the

preceding paragraphs as though fully set forth herein.
32.

Defendant’s promotion, marketing, offering for sale, and sale of

13

counterfeit Abercrombie products has created and is creating a likelihood of

14

confusion, mistake, and deception among the general public as to the affiliation,

15

connection, or association with Abercrombie or the origin, sponsorship, or approval of

16

Defendant’s counterfeit Abercrombie products by Abercrombie.

17

33.

By using the Abercrombie Marks on counterfeit products, such as the

18

Accused Products, Defendant created a false designation of origin and a misleading

19

representation of fact as to the origin and sponsorship of the Accused Products.

20

34.

Defendant’s false designation of origin and misrepresentation of fact as

21

to the origin and/or sponsorship of the Accused Products to the general public

22

involves the use of counterfeit marks and is a willful violation of Section 43 of the

23

Lanham Act, 15 U.S.C. § 1125.

24

35.

Abercrombie has no adequate remedy at law and, if Defendant’s actions

25

are not enjoined, Abercrombie will continue to suffer irreparable harm to its

26

reputation and the goodwill of the Abercrombie brand.

27
28

36.

In light of the foregoing, Abercrombie is entitled to injunctive relief

prohibiting Defendant from using any of the Abercrombie Marks and/or any marks
8
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identical and/or confusingly similar thereto, and to recover from Defendant all

2

damages, including attorney’s fees, that Abercrombie has sustained and will sustain as

3

a result of such infringing acts, and all gains, profits and advantages obtained by

4

Defendant as a result thereof, in an amount not yet known, as well as the costs of this

5

action pursuant to 15 U.S.C. § 1117(a).

6

THIRD CLAIM FOR RELIEF

7

(Unfair Competition in Violation of Cal. Bus. & Prof. Code, § 17200 et. seq.)

8
9
10

37.

Abercrombie incorporates by reference each and every one of the

preceding paragraphs as though fully set forth herein.
38.

Defendant’s misappropriation and unauthorized use of the Abercrombie

11

Marks to promote the Accused Products is likely to confuse or mislead consumers into

12

believing that such products are authorized, licensed, affiliated, sponsored, and/or

13

approved by Abercrombie, constituting deceptive, unfair, and fraudulent business

14

practices and unfair competition in violation of the California Unfair Business

15

Practices Act, Cal. Bus. & Prof. Code, § 17200 et. seq. (“UCL”).

16

39.

Upon information and belief, Defendant’s deceptive, unfair, and

17

fraudulent business practices were willfully undertaken with full knowledge of

18

Abercrombie’s rights in the Abercrombie Marks and with the intent to misappropriate

19

Abercrombie’s goodwill and reputation established in the Abercrombie Marks.

20

40.

Defendant’s conduct is unfair within the meaning of the UCL because it

21

allows Defendant to benefit unjustly by virtue of the goodwill and positive reputation

22

that members of the general public associate with Abercrombie and its products. As

23

described herein, and on information and belief, Defendant has intentionally violated,

24

and continues to violate, Abercrombie’s rights in the Abercrombie Marks to enjoy the

25

commercial benefits derived therefrom.

26

41.

Defendant’s conduct is fraudulent in violation of the UCL because

27

Defendant is willfully and deliberately misleading the public by using in commerce

28

reproductions, counterfeits, copies, and/or colorable imitations of authentic
9
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Abercrombie products.
42.

2

This conduct is likely to confuse the public as to whether Defendant’s

3

products are somehow associated, affiliated, or connected with Abercrombie, or vice

4

versa.

5

43.

As a direct and proximate result of the foregoing acts, Abercrombie has

6

suffered and will continue to suffer significant injuries in an amount to be determined

7

at trial.

8

California Unfair Business Practices Act, Cal. Bus. & Prof. Code, § 17200 et. seq.,

9

including an accounting and disgorgement of all illicit profits that Defendant made on

Abercrombie is entitled to all available relief provided for under the

10

account of its deceptive, unfair, and fraudulent business practices.

Furthermore,

11

because Abercrombie has no adequate remedy at law for Defendant’s ongoing

12

unlawful conduct, Abercrombie is entitled to injunctive relief prohibiting Defendant

13

from unfair competition.

14

FOURTH CLAIM FOR RELIEF

15

(Trademark Infringement under California Common Law)

16
17
18
19
20

44.

Abercrombie incorporates by reference each and every one of the

preceding paragraphs as though fully set forth herein.
45.

Abercrombie owns all rights, title, and interest in and to the Abercrombie

Marks, including all common law rights in said marks.
46.

Defendant, without authorization from Abercrombie, used and continues

21

to use counterfeit designations that are identical to, substantially indistinguishable

22

from, or confusingly similar to the Abercrombie Marks.

23

47.

The foregoing acts of Defendant are intended to cause, have caused, and

24

are likely to continue to cause confusion, mistake, and deception among consumers,

25

the public, and the trade as to whether Defendant’s Accused Products originate from,

26

or are affiliated with, sponsored by, or endorsed by Abercrombie.

27
28

48.

Upon information and belief, Defendant acted with knowledge of

Abercrombie’s rights in the Abercrombie Marks and with deliberate intention or
10
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willful blindness to unfairly benefit from the incalculable goodwill symbolized

2

thereby.
49.

3
4

common law of the state of California.
50.

5
6

Upon information and belief, Defendant made and will continue to make

substantial profits and/or gains to which it is not in law or equity entitled.
51.

7
8

Defendant’s acts constitute trademark infringement in violation of the

Upon information and belief, Defendant intends to continue its infringing

acts, unless restrained by this Court.
52.

9

Defendant’s acts have damaged and will continue to damage

10

Abercrombie’s reputation and brand, and Abercrombie has no adequate remedy at

11

law.

12

FIFTH CLAIM FOR RELIEF

13

(Unfair Competition under California Common Law)

14
15
16
17
18

53.

Abercrombie incorporates by reference each and every one of the

preceding paragraphs as though fully set forth herein.
54.

Abercrombie owns and enjoys common law trademark rights to the

Abercrombie Marks in California and throughout the United States.
55.

Defendant’s unlawful acts in appropriating rights in Abercrombie Marks

19

was intended to capitalize on Abercrombie’s goodwill for Defendant’s own pecuniary

20

gains. Abercrombie has expended substantial time, resources and effort to obtain an

21

excellent reputation for itself and the Abercrombie Marks.

22

Abercrombie’s efforts, Defendant is now unjustly enriched and are benefiting from

23

property rights that rightfully belong to Abercrombie.

24

48.

As a result of

Defendant’s unauthorized use of the Abercrombie Marks has caused and

25

is likely to cause confusion as to the source of Defendant’s products, all to the

26

detriment of Abercrombie.

27
28

49.

Defendant’s acts are willful, deliberate, and intended to confuse the public

and to injure Abercrombie.
11
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50.

Defendant’s acts constitute unfair competition under California common

51.

Abercrombie has been irreparably harmed and will continue to be

law.

4

irreparably harmed as a result of Defendant’s unlawful acts unless Defendant is

5

permanently enjoined from its unlawful conduct.

6

52.

The conduct herein complained of was extreme, outrageous, fraudulent,

7

and was inflicted on Abercrombie in reckless disregard of Abercrombie’s rights in the

8

Abercrombie Marks. Said conduct was despicable and harmful to Abercrombie and as

9

such supports an award of exemplary and punitive damages in an amount sufficient to

10

punish and make an example of the Defendant and to deter Defendant from similar

11

such conduct in the future.

12

53.

Abercrombie has no adequate remedy at law.

13

56.

In light of the foregoing, Abercrombie is entitled to injunctive relief

14

prohibiting Defendant from using the Abercrombie Marks or marks identical and/or

15

confusingly similar thereto, and to recover all damages, including attorneys’ fees, that

16

Abercrombie has sustained and will sustain and all gains, profits and advantages

17

obtained by Defendant as a result of its infringing acts alleged above in an amount not

18

yet known, and the costs of this action.
PRAYER FOR RELIEF

19
20
21

WHEREFORE, Plaintiff Abercrombie & Fitch Trading, Co. respectfully prays
for judgment against Defendant Beauty Encounter, Inc. and DOES 1-10 as follows:

22

1. An order permanently enjoining and restraining Defendant, their agents,

23

servants, employees, officers, associates, and all persons acting in concert with any of

24

them from using Abercrombie’s Marks, or any marks, designs, works, confusingly

25

similar/substantially similar thereto, including, but not limited to:

26

a.

manufacturing, designing, importing, advertising, marketing,

27

promoting, supplying, distributing, offering for sale, or selling the Accused

28

Products, and/or any products which bear any of the Abercrombie Marks
12
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and/or any marks/designs identical, substantially similar, and/or confusingly

2

similar thereto;

3

b.

engaging in any other activity constituting unfair competition with

4

Abercrombie, or acts and practices that deceive consumers, the public, and/or

5

trade, including without limitation, the use of designations associated with

6

Abercrombie; and
c.

7

committing any other act which falsely represents or which has

8

the effect of falsely representing that the goods and services of Defendant are

9

licensed by, authorized by, offered by, produced by, sponsored by, or in any

10

other way associated with Abercrombie.

11

2. An order requiring Defendant to recall from any distributors and retailers

12

and to deliver to Abercrombie for destruction or other disposition all remaining

13

inventory of Accused Products, or other merchandise bearing the Abercrombie Marks

14

and/or any marks/works confusingly similar thereto, including all advertisements,

15

promotional and marketing materials therefore, as well as means of making same;
3.

16

An order requiring Defendant to file with this Court and serve on

17

Abercrombie within thirty (30) days after entry of the injunction a report in writing,

18

under oath setting forth in detail the manner and form in which Defendant has

19

complied with the injunction;
4. An order for an accounting of all gains, profits and advantages derived by

20
21

Defendant on account of the unlawful acts complained of herein;

22

5. An award of all damages, including attorney’s fees, that Plaintiff has

23

sustained, and all gains, profits and advantages obtained by Defendant, and the costs

24

of this action pursuant to 15 U.S.C. § 1117(a);
6. An award of attorneys’ fees and treble damages pursuant to 15 U.S.C. § 1117

25
26

(b);

27

7. An award of statutory damages pursuant to 15 U.S.C. § 1117(c);

28

8. An award of damages equal to Defendant’s profits and all damages sustained
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COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF

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by Abercrombie as a result of Defendant’s wrongful acts;
9. An award of punitive damages and Abercrombie’s costs, attorneys’ fees, and
interest as allowed under all applicable federal statutes and California state laws; and
10. All other relief that the Court may deem just and proper.

5
6

Dated:

March 20, 2023

BLAKELY LAW GROUP

7
8
9
10

By:

Jamie Fountain
_/s/ ________________
Brent H. Blakely
Jamie Fountain
Attorneys for Plaintiff
Abercrombie & Fitch Trading, Co.

11
12
13
14
15
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18
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20
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22
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24
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26
27
28
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DEMAND FOR JURY TRIAL

2

Pursuant to Rule 38(b) of the Federal Rules of Civil Procedure, Plaintiff

3

Abercrombie & Fitch Trading, Co. hereby demands a trial by jury as to all claims in

4

this Civil Action.

5
6

Dated:

March 20, 2023

BLAKELY LAW GROUP

7
8
9
10

By:

Jamie Fountain
/s/ ____________
Brent H. Blakely
Jamie Fountain
Attorneys for Plaintiff
Abercrombie & Fitch Trading, Co.

11
12
13
14
15
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18
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21
22
23
24
25
26
27
28
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COMPLAINT FOR DAMAGES AND EQUITABLE RELIEF

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EXHIBIT 1

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EXHIBIT B

Case 1:23-mc-00492-LJL Document 1-3 Filed 12/20/23 Page 2 of 2

ATTORNEY OR PARTY WITHOUT ATTORNEY (Name and Address):

TELEPHONE NO.:

Brent H. Blakely, Esq. (SBN: 157292)
BLAKELY LAW GROUP
1334 Parkview Avenue, Suite 280
Manhattan Beach, California 90266
ATTORNEY FOR (Name):

FOR COURT USE ONLY

[phone]

Ref. No. or File No.

95847

Plaintiff, Abercrombie & Fitch Trading, Co.

Insert name of court and name of judicial and branch court, if any:

UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
SHORT TITLE OF CASE:

ABERCROMBIE & FITCH TRADING, CO., an Ohio Corporation, v. BEAUTY ENCOUNTER, INC.

PROOF OF SERVICE

HEARING DATE:

September 1, 2023

TIME:

12:00 p.m.

DEPT./DIV. CASE NUMBER:
:

8:23-cv-00496-JVS-(ADS)

1. At time of service I was at least 18 years old & not a party to the action
2. I served the following documents: SUBPOENA TO PRODUCE DOCUMENTS, INFORMATION, OR OBJECTS
OR TO PERMIT INSPECTION OF PREMISES IN A CIVIL ACTION

3. a. Name of party served: PRESTIGE BEAUTY GROUP LLC
b . Person with whom left: Banwari Kapoor, Manager, Authorized to accept.
4. Address: 5 Sutton Place, Edison, NJ 08817
5. I served the party:
b. by personal service: On: August 21, 2023 at 3:39 PM
(1) Code of Civil Procedure – CCP 2020.220 (b) serve the subpoena by personal delivery
(2) Code of Civil Procedure – CCP 2020.220 (c) Personal service of any deposition subpoena
6. The Subpoena was served by delivering a true copy thereof.
7. Witness fees in the amount of $0.00 were tendered at the time of service.

Fees for Service:
Person serving: Raymond Dash
County Legal Attorney Service
816 S. Figueroa St., # 100
Los Angeles, California 90017
Tel.: [phone]

a New Jersey Process Server
(1) an independent contractor
(2) Registration No.: N/A
(3) County: N/A

I declare under penalty of perjury under the laws of the State of California that the foregoing is true and correct.

�KiJd;

Executed on: August 21, 2023

Signature: _____________________________
Proof of Service complies with CRC 982(a)(23) as required by CCP 417.10

PROOF OF SERVICE

Case 1:23-mc-00492-LJL Document 1-4 Filed 12/20/23 Page 1 of 4

EXHIBIT C

Case 1:23-mc-00492-LJL Document 1-4 Filed 12/20/23 Page 2 of 4

BORRUS, GOLDIN, FOLEY, VIGNUOLO, HYMAN & STAHL
A Professional Corporation
2875 U.S. Highway #1
North Brunswick, New Jersey 08902
Telephone [phone]
Attorneys for Prestige Beauty Group LLC
James E. Stahl, Esq. New Jersey Attorney No. 281971972

ABERCROMBIE & FITCH TRADING CO.,
an Ohio Corporation,

UNITED STATES DISTRICT COURT
for the
Central District of California

Plaintiff,
v.

Civil Action No. 8:23-cv-00496-JVS-ADS

BEAUTY ENCOUNTER, INC., a
California Corporation; and DOES 1-10,
inclusive,

RESPONSE TO SUBPOENA TO PRODUCE
DOCUMENTS, INFORMATION, OR
OBJECTS OR TO PERMIT INSPECTION
OF PREMISES IN A CIVIL ACTION

Defendants.

To:

Brent Blakely, Esq.
Tara A. Currie, Esq.
Blakely Law Group
1334 Parkview Avenue, Suite 280
Manhattan Beach, CA 90266
Email: [e-mail]
Email: [e-mail]
The undersigned, as counsel for Prestige Beauty Group LLC (“Prestige”), located at 5

Sutton Place, Edison, New Jersey 08817, by way of Response to the Subpoena, annexed hereto as
Exhibit “A”, states:
The following responses represent a true and accurate response to the Subpoena based upon
the identified documents requested and an investigation of the records of Prestige:
RESPONSE AS TO SUBPOENAED DOCUMENT NO. 1.:
possession nor has any communications as identified in request No. 1.

1

Prestige is not in

Case 1:23-mc-00492-LJL Document 1-4 Filed 12/20/23 Page 3 of 4

RESPONSE AS TO SUBPOENAED DOCUMENT NO. 2.:

Prestige is not in

possession nor has any communications as identified in request No. 2.
RESPONSE AS TO SUBPOENAED DOCUMENT NO. 3.: See invoices, bills of
lading, etc., annexed hereto as Exhibit “B”, in connection with purchase of alleged “ACCUSED
PRODUCTS”. Prestige does not know whether any of the products described in the enclosures
are or are not “ACCUSED PRODUCTS”, however, the invoices do indicate a reference to
Abercrombie and Fierce.
RESPONSE AS TO SUBPOENAED DOCUMENT NO. 4.:

Prestige is not in

possession nor has any documents as identified in request No. 4.
RESPONSE AS TO SUBPOENAED DOCUMENT NO. 5.:

Prestige is not in

possession nor has any communications or documents as identified in request No. 5.
RESPONSE AS TO SUBPOENAED DOCUMENT NO. 6.:

Prestige is not in

possession nor has any communications or documents as identified in request No. 6.
RESPONSE AS TO SUBPOENAED DOCUMENT NO. 7.:

Prestige is not in

possession nor has any documents as identified in request No. 7.
RESPONSE AS TO SUBPOENAED DOCUMENT NO. 8.:

Prestige is not in

possession nor has any documents as identified in request No. 8.
RESPONSE AS TO SUBPOENAED DOCUMENT NO. 9.:

Prestige is not in

possession nor has any documents as identified in request No. 9.
RESPONSE AS TO SUBPOENAED DOCUMENT NO. 10.:
possession nor has any documents as identified in request No. 10.

2

Prestige is not in

Case 1:23-mc-00492-LJL Document 1-4 Filed 12/20/23 Page 4 of 4

RESPONSE AS TO SUBPOENAED DOCUMENT NO. 11.:

Prestige is not in

possession nor has any communications or documents as identified in request No. 11.
BORRUS, GOLDIN, FOLEY, VIGNUOLO,
HYMAN & STAHL, P.C.
Attorneys for Prestige Beauty Group LLC

By:
JAMES E. STAHL

DATED:

December 1, 2023

P:\Docs\JES\WP51\PLEADINGS\US District Court\Prestige Beauty Group\111323 Response Subpoena.docx

3

Case 1:23-mc-00492-LJL Document 1-5 Filed 12/20/23 Page 1 of 2

UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK
In the Matter of Subpoena Issued to
Third-Party Prestige Beauty Group,
LLC in Action Pending in the United
States District Court for the Central
District of California entitled

Misc Case No. 1:23-mc-00492

ABERCROMBIE & FITCH
TRADING, CO., an Ohio Corporation,

[PROPOSED] ORDER GRANTING
PLAINTIFF’S MOTION TO
COMPEL FURTHER RESPONSES
AND DOCUMENTS IN RESPONSE
TO SUBPOENA AGAINST
PRESTIGE BEAUTY GROUP, LLC

Plaintiff,
v.

Pending in Central District of
California, Case No. 8:23-cv-00496WLH-ADSx

BEAUTY ENCOUNTER, INC., a
California Corporation; A.A. IRIE
PERFUME, INC., a Florida
Corporation; HAZ
INTERNATIONAL, INC., a Delaware
Corporation; L.A. FRAGRANCES,
INC., a California Corporation;
NANDANSONS INTERNATIONAL,
INC., a New York Corporation; PM
TRADING CORP, a California
Corporation; PRESTIGE BEAUTY
GROUP, LLC, a New Jersey limited
liability company; and DOES 1-10,
inclusive,
Defendants.
After consideration of plaintiff Abercrombie & Fitch Trading, Co.’s
(“Plaintiff” or “Abercrombie”) Motion to Compel Further Responses and
Documents in Response to Subpoena Against Prestige Beauty Group, LLC
(“Prestige”), and any oral argument on the Motion, HEREBY ORDERS THAT:
Plaintiff’s Motion is GRANTED. Prestige is ordered to provide further
1
[PROPOSED ORDER] GRANTING PLAINTIFF’S MOTION TO COMPEL

Case 1:23-mc-00492-LJL Document 1-5 Filed 12/20/23 Page 2 of 2

responses to Subpoena Request Nos. 1, 2, 6-8, 11 which affirms that it has
conducted a diligent search and reasonable inquiry for the documents requested
and to produce documents (if any) in its possession, custody, and control, without
objection.

IT IS SO ORDERED.
Dated: ___________________, 2023

_________________________
United States District Judge

2
[PROPOSED ORDER] GRANTING PLAINTIFF’S MOTION TO COMPEL