Litigation Involving CLEAN and KLEAN Branded Perfumes is a Dirty Business.

NEW YORK, May 29, 2009 -- Producers of CLEAN brand cosmetics and perfumes instituted legal proceedings against a number of defendants in the U.S. District Court for the Southern District of New York for selling perfume under the moniker of KLEAN.

Barbados-based Fusion Brands International SRL began selling perfume under the brand CLEAN on February 21, 2003. Since that time, the CLEAN trademark has been expanded to cosmetic products culminating in wholesale sales in excess of $50 million.

An enterprise calling itself Klean Bath & Body, Inc. has allegedly been selling perform bearing the trademark KLEAN in packaging resembling the CLEAN packaging. The California Secretary of State has no record of a corporation by the name of Klean Bath & Body, Inc., which is why the lawsuit also names Jennifer Hardaway and a number of individuals deemed John Does as co-defendants.

The primary purpose of trademark infringement laws is to prevent consumer confusion regarding the source of goods and services. The first party to use a trademark may prohibit other parties from using a mark subsequently on connection with similar goods or services if it so resembles the original mark as to cause confusion. If the later mark is so similar, it is deemed to infringe on the prior mark.

At issue in the case will be whether consumers for perfume with be confused into thinking KLEAN branded perfume was produced by Fusion Brands International SRL.

The United States Patent & Trademark Office (USPTO) will refuse to register a trademark when it is virtually identical to an already registered trademark in the same class of goods or services. Comparable trademarks with minor variations in spelling are typically treated as being the same mark.

Fusion Brands International SRL did not register the trademark CLEAN until February 10, 2009.

If Fusion Brands is successful in proving infringement the federally registered trademark, they could recover defendants' profits and any damages sustained by the plaintiff. In assessing damages the court may enter judgment for any sum above the amount found as actual damages, up to three times. When a court finds a defendant intentionally counterfeited a registered trademark, the court must, unless the court finds extenuating circumstances, enter judgment for three times such profits or damages, whichever is greater, together with a reasonable attorney’s fee unless the Plaintiff elects for statutory damages up to $1,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed.

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