Sabika v. Goshen - Motion For PI & Brief

Case 1:13-cv-00848 Document 33 Filed 06/25/13 Page 1 of 3 PageID #: 125
IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF WEST VIRGINIA
BLUEFIELD DIVISION
SABIKA, INC.,
Plaintiff,
v.
GOSHEN SPARKLING JEWELRY, LLC;
MICHELLE OXLEY; and
SHERAINE GUNNOE,
Defendants.
Civil Action No. 1:13-0848
The Honorable David A. Faber, Judge
PLAINTIFF SABIKA INC.'S MOTION FOR PRELIMINARY INJUNCTION
Plaintiff Sabika, Inc. (hereinafter "Sabika"), by and through its undersigned counsel,
respectfully submits this Motion for a Preliminary Injunction, pursuant to Federal Rule of Civil
Procedure 65(a), against Defendants Goshen Sparkling Jewelry, LLC, Michelle Oxley, and
Sheraine Gunnoe (hereinafter "Defendants"). As more fully set forth in Sabika's Memorandum
of Law filed and served simultaneously herewith and incorporated by reference, based upon
Defendants' continuing copyright and trade dress infringement in this District and elsewhere,
this Court should grant Sabika's Motion for Preliminary Injunction and issue an Order enjoining
Defendants from continued copyright and trade dress infringement during the pendency of this
action.
Respectfully submitted this 25
1
h day of June, 2013.
SABIKA, INC.
By Counsel
Is/Russell D. Jessee
Russell D. Jessee
Russell. j essee({Vsteptoe-j ohnson.com
W.Va. Bar No. 10020
Lauren.palmer@steptoe-j ohnson.com
W.Va. Bar No. 11964
STEPTOE & JOHNSON PLLC
P.O. Box 1588
707 Virginia Street E.
Charleston, WV 25326-1588
(304) 353-8000 (telephone)
(304) 353-8180 (facsimile)
and
Maxim H. Waldbaum (pro hac vice)
Mwaldbaum@evw.com
Robert D. Katz (pro hac vice)
Rkatz(i:l{evw.com
EATON & VAN WINKLE LLP
3 Park Ave., 16th Floor
New York, NY 10016
Tel: 212.779.9910
Fax: 212.779.9928
Counsel to Plaintif!Sabika, Inc.
2
SABIKA, INC.,
Plaintiff,
v.
BLUEFIELD DIVISION
MICHELLE OXLEY; and
SHERAINE GUNNOE,
Defendants.
CERTIFICATE OF SERVICE
I hereby certify that on June 25, 2013, a copy of the foregoing "Plaintiff Sabika, Inc.'s
Motion for Preliminary Injunction" was filed electronically. Notice of this filing will be sent by
operation of the Court's electronic filing system to all parties indicated on the electronic filing
receipt. There are no unrepresented parties.
Is! Russell D. Jessee
Russell D. Jessee
russell. j essee@steptoe-j ohnson.com
W.Va. Bar No. 10020
P.O. Box 1588
(304) 353-8000 (telephone)
(304) 353-8180 (facsimile)
3
Case 1:13-cv-00848 Document 33-1 Filed 06/25/13 Page 1 of 93 PageID #: 128
EXHIBIT A
Case 1:13-cv-00848 Document 33-1 Filed 06/25/13 Page 2 of 93 PageID #: 129 ---------------
------------------------------------------------------X
SABIKA, lNC.,
Plaintiff.
v.
GOSHEN SPARKLING JEWELRY;
MICHELLE OXLEY; and
SHERAlNE GUNNOE
Defendants.
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-----------------------------------------------------X
Civil Action No. I :13-0848
DECLARATION OF JENNIFER SCHLIEPER
Jennifer Schlieper hereby declares as follows:
1. I am the Director of Marketing for Sabika, Inc. , a fami ly business founded in 2001, and
have been in this position for approximately one year. Prior to that, I had over I 0 years
of experience in marketing for various companies. (See ' Schlieper Resume," attached
hereto as Exhibit l.) I make this declaration in support of Plaintiff s Motion for a
Preli minary Injuncti on. All statements contained herein are based upon personal
knowledge except where stated to be on informat ion and belief.
Sabika ' s History
2. Sabika is a fami ly business located in Pittsburgh. Pennsylvania, started by Karin Mayr
and her husband Konrad. Thei r idea was to design and sell elegant and dressy looking
Austrian crystal jewelry for everyday wear at affordable prices to complement the outfits
worn by women and to complement and coordinate with precious or more expensive
jewelry pieces.
3. Each Sabikajewelry piece is uniquely designed and handmade. The hallmark of a Sabika
design is the use of Austrian Swarovski crystals hand set in cup chains to create a un ique
appearance.
4. Upon infonnation and belief, Sabika \\-as the first and only company to sell high quality
handmade costume jewelry featuring Swarovski crystals hand set in cup chains. The
designs are the creations of Alexandra Mayr-Gracik, daughter of Karin and Konrad Mayr.
Prior to coming to work at Sabika, Alexandra has extensive experience in fashion desi!,rn.
Sabika 's Intellectual Property
5. The jewelry products of Sabika are unique, original, and subject to copyright and trade
dress protection. There are approximately one hundred seventy pending copyright
applications and ~ e v e n t y issued copyright registrations for Sabika jewelry. A complete
list of those copyrights, both regi stered and pendi ng, is attached hereto as Exhibit 2.
6. Among the copyrights owned by Sabika are Wine and Dine, Registration No. VA 1-836-
897; Ladies Lunch Heart Pendant Registration No. VA 1-837-180; Vintage Supernatural
Manhattan Choker and Bracelet, Registrati on No. VA 1-837-314; Sabika Pink Party
Earrings, Registration No. VA 1-839-26 1; and Sabi ka Pink Party Choker, Registration
No. VA 1-839-264. (See Exhibit 2.)
7. Sabika also owns several trademarks covering the "SABIKA'' name as well as a
trademark including our unique heart design which appears at the end of an extender as a
Sabika design si gnature on several Sabika necklaces, and also serves as our logo. A copy
of the regi trations is attached hereto as Exhibit 3
2
8. Sabika sells its products exclusively through ' 'home parties' ' or other gatherings hosted by
consultants, who are sales representatives paid b)' commission. Hostesses invite guests to
view the Sabika jewelry items and try them on. The consultants bring the various Sabika
pieces on numerous trays. each holding a limited number of related designs.
9. Sabika does not presently advertise in magazines, newspapers. or other print media, nor
does it advertise on televi sion or on radio. Sabika maintains a website that gives
background information about the company, its founders, its designer, its employees, and
also contains photographs of its current product line. It has several modes of advertising:
( 1) distribution of catalogs by consultants and to a mailing list; (2) displaying its designs
on its website; and (3) demonstration and display of its designs at home parties. Sabika
does not sell over the Internet from its website. nor does it sell in retail stores, since it
does not wish to undercut the sales of its consultants. Sabika sell s strictly through
consultants.
I 0. Sabika creates and releases photographs new designs twice yearly and prints and releases
new designs as well as other "classic'' designs that remain in Sabika's li neup in its twice
seasonal-Fall/Winter & Spring/Summer--catalogs. In the last several years, Sabika has
distributed numerous catalogs each season, incurring substanti al printing and distribution
costs. Each consultant has territory, and the right to sell Sabika jewelry in her territory.
11. Sabika has enjoyed a solid reputation and foll owing and has been praised by many
persons. It current ly has about 600 consultants in 37 states with most located mainly in
Pennsylvania, West Virgi ni a, and Vi rginia. Sabika' s products have been sol d in all 50
states.
3
Goshen' s I nfringement
12. Upon intonnation and belief, Defendant Goshen Sparkling Jewelry was begun by Ms.
Michell e Oxley and Ms. Sheraine Gunnoe in March-Apri l of2012. The original Goshen
website was registered on May 20, 20 12 at htt p: l.'.nshen'>parl-..lin2je\\cln ' '-:h .c,ml ,
though that site is now inactive and di rects customers to the new website titled
goshensparklingjewelry.com. Goshen Sparkling Jewelry, LLC was officiall y fanned on
July I 0, 2012 according to records obtained from the Secretary of State of the State of
West Virginia (See ''Certificate of a Li mited Liability Corporation," attached hereto as
Exhibit 4.) Sabika first learned of Goshen and its business of selling copies of Sabika
products in late 2012. We had our attorney write them and ask them to cease and desist
from infringing our copyrights and trade dress.
13. These discussions continued through the end of 2012, and when they fa iled to progress to
our satisfaction, we instructed our attorneys to fil e the present action in January, 2013.
14. Each of the designs copied by ashen appears in one of our catalogs and on our website,
so Goshen clearly has access to these designs before they created their own pieces. We
have printed out a number of photos of items that Goshen offers for sale. We have put
together as Exhibit 5 a group of photos that show the original Sabika design adj acent to
the Goshen design. Goshen admits on its website that it started in busi ness in 2012, using
the same home party fonnat as Sabika, so there is no question about who origi nated the
design and who copied the design.
15. We have made a study to detennine whether Goshen has affected our sal es and revenues.
We reviewed the sales fi gures for the Virginia/West Virgi nia regions and our other
4
---- ----- ------------------------
regions to see if sales in the Virginia/West Virginia area where Goshen sales
representatives seem heavily concentrated have been affected by their presence including
sales by quarter, number of sales parties, customer count. sales per active consultant,
consultant commission by quarter, total number of consultants and number of new
consultants.
I 6. The results show Virginia and West Virginia sales activity broken ou against sales
activity for the rest of the company (other regions, excluding Virgi nia and West
Virginia). The sales for the company as a \\'hole has grown quite nicely, but in the areas
served by Goshen (and several other infringers who have settled or are in the process of
settling), we found significant drops in every variable in the last twelve months, which
we attribute to infringing activity. Thus, sales appear flat in the region, while overall
sales for the Company have increased significantly. (See Sales Information," attached
hereto as Exhibit 6.)
17. The decrease in number of parties held and attendance at these parties, as wei as the
overall decline in the affected region has sliced into the amount of sales for active
consultants in the affected region, particularly in the last few quarters when Goshen
activit) and sales grew signifi cantly. Decreased sales translate immediately into
decreased earnings for consultants in the region, and successful consultants are the
lifeblood of our business. We consequently have fewer consul tants working in the
region, and have been unable to increase this number in Virginia and West Vi rginia,
unli ke in other regions. This affects sales, recruiti ng moral, and longevity, and affects the
company as a whole as we invest significantly in recruit ing and training consultants. The
longer consultants stay with us, the more productive they get and the less we as a
5
company have to spend on recruiting and training new consultants. In addition,
successful consultants recruit their friends to act as consultants. In addition, we can
attract better quality and more capable candidates if they can look forward to a sales
career unimpeded by trade dress and copyright infringement. ln sum, the copyright and
trade dress infringement perpetrated by Goshen (among others) has significantly harmed
our company economically.
I 8. Sabika designs all of its own jewelry under the watchful eye of its founder Karin Mayr.
It has a very distinctive look and appearance, attributable to the use of colorful, high
quality Swarovski crystals made in Austria by artisans, and set in colored cup chains.
The appearance of the product does not have any particular utilitarian advantage. It
simply looks uniquely pretty to the eye of the consumer, and looks attractive when worn
by a user. The particular colors chosen, the size and shape of the crystals and the type of
mounting all contribute to the customer appeal for the jewelry. There arc numerous other
ways to make high qual ity costume jewelry that could be ~ o l d to potential customers
without copying the design or look of Sabika jewelry.
19. Sabika has been selling its line of necklaces, chokers. earrings and bracelets for over ten
years. Certain items are "classics" and remain in the line, on the website and in the
quarterly catalogs distributed by consultants. Sabika has invested heavi ly in its website,
in promotional shows and programs, and in catalogues to promote its j ewelry line. These
investments have currently, annual sales exceeding $ 10 milli on.
20. In addition, Sabika has received considerable media attention. Sabika was featured in an
item on KDKA-TV, the CBS affili ate in Pittsburgh, PA. Sabika j ewelry also appeared on
the cover of Seventeen magazi ne, and was featured in an arti cle in Pittsburgh magazine.
6
Case 1:13-cv-00848 Document 33-1 Filed 06/25/13 Page 8 of 93 PageID #: 135 ---------.
2 . I have personally reviewed the Facebook page of Goshen and there is no doubt that
Goshen has decided to compete with Sabika on Sabika's designs. Goshen obviously
knew of Sabika and its distinct ive line of fashion jewelry, because when we first
investigated their activities, they had a disclaimer on their Facebook page saying they
disclaim any relationship to Sabika. They removed that startling "disclaimer," and now
just direct "Sabika shoppers'' to the Sabika website. Based upon my experience in
marketing for Sabika and my previous employers, these disclaimers are meaningless and,
worse, harmfuL Sabika strongly believes these disclaimers are evidence of actual
confusion and malicious intent to trade on Sabika's well-known and well-received
designs.
22. The Goshen Facebook references to Sabika are tantamount to saying that you can buy
copies of original Sabika designs at much lower prices. In addition, Goshen customers
have commented on the Goshen Faeebook pages, noting how similar the Goshen items
resemble those of Sabika. Goshen appears to delete these quickly when they appear.
23. Goshen has recently posted a notice on its webs ite accusing Sabika of trying to put
Goshen out of business. Sabika has no such intention. Sabika's only intention in fi ling
this lawsuit is to stop Goshen from copying Sabika's copyrighted designs and its rade
dress. Sabika only wishes to stop unfair competition. Sabika has no problem with
Goshen sell ing items of its own design. Goshen is free to sell any jewelry design of its
own creation, but we do our bes to stop it from selling copies of our designs at lower
prices.
24. Sab ika believes that if the Goshen activity is al lowed to continue in this illegal manner
there will be substantial further inj ury to the sales and reputat ion destruction of Sabika.
7
--- - .... --- -----------
Sabika cannot effectively compete against copyists who create identical looking goods of
inferior qualit}, which they sell in the heart of our customer territory at much lower
prices. We will continue to be substantially injured if Goshen is not enjoined from
further sales of copes of Sabika jewelry items. Moreover, we have no way of stopping
Goshen except by resort to the court.
l declare the foregoing is true under penalty of perjury of the laws of the Uni ted States of
America.
Pittsburgh'(A, 1Y( /'2 _/
Dated: 0 "' /
8
EXHIBIT 1
Jennifer Schlieper 412.916.7495
SO Academy Drive Pittsburgh, PA 15228 jennlferschlleper@mac.com
Senior Creative, Marketing & Brand Executive with expertise in brand building and revitalization,
identifying and capitalizing on market trends, and creating effective media strategy to drive growth in new
and existing markets.
Revitalized and positioned $t.sB retailer; sold for 7X initial purchase price
Drove 20% increase in core products and enhanced shopping experience in 5,000+ locations.
Led startup from <$250K annual sales to Home Depot Partner of the Year
Innovator and "go-to-market" specialist ...
Inaugurated a fresh approach to client contact by pioneering first print catalog and e-commerce site.
Managed $40M in comprehensive media buys including broadcast, national print and web.
Exceeded sales goals by 20% while streamlining production in-house for faster to-market turnaround,
resulting in overhaul of marketing promotional calendar, direct marketing and web strategies.
Superior team builder and talent manager ...
Restructured marketing team and partners, resulting in on-time, seasonal brand launch rejuvenating sales.
Built in-house creative agency and initiated best practices, reducing costs and streamlining processes.
Spearheaded brand strategies, advertising campaigns, special events and web-based programs for mid-
sized to Fortune 100 clients such as Intellinex, MSA/ /MSA Safety Works, Alcoa and Heinz.
BA in Advertising & Public Relations Duquesne University
Awards: Silver Anvil- Consumer Brand Launch CIPRA Finalist (SABRE Award)
Renaissance Award +Ketchum Kudos Silver Ketchum Kudus Bronze
Professional History
Sabika, Inc.
DIRECTOR, Marketing & Brand Strategy
Design, develop and successfully execute sales and marketing for the Sabika Brand
Lead strategist on market segment build, working with more than 6oo independent consultants to increase
year over year sales by so%.
Direct team strategy for new initiatives and market penetration
Develop online market strategy including social media with reach more than tripling in less than a year
Executive Produce all corporate events (National Conferences and Non-Profit partnership)
Lead writer for all communication including sales catalogs, newsletters and field training materials as well as
direct and manage all local and national media relations efforts
Lead legal and brand strategy to off-set brand erosion in copycat/ I copyright infringement markets
Develop strategy and head negotiations for non-profit partners (Komen, NBCF, Ronald McDonald House) as
well as execute partnership strategy to increase giveback of more than 100% in less than a year
Geno Levi/ /Innovative Salon Concepts/ /Beauty Restores Foundation
DIRECTOR, Creative, Marketing & Operations 2009-2012
Rebranded the multi-million dollar Geno Levi Salon to create double-digit growth
during a two-year timeframe
Created the Geno Levi Inspired Beauty brand experience to mirror Levi's talent as a top industry innovator
Designed, directed and managed build-out of studio space that increased new guest intake of more than 20%
Optimized and re-launched proprietary Geno Levi Brand Line of Haircare Products to increase overall
margin growth by so%
Organized, launched and managed yearly, semester-based training of Geno Levi Academy program while
increasing targeted recruiting by 79%
Developed training for on-the-road seminars with Geno Levi Gravitional Brand, Cutting and Colour Manuals
Created and executed continued studio team training with the launch of Geno Levi Trend including creative
direction and development helping to increase annual service and retail sales
Lead day-to-day operations, overseeing all stylists, trainers and hospitality teams helping streamline
processes and reducing overall operational costs by 7%
Developed leadership training with team managers to increase overall sales by 20%
Named Top 200 US Salon by Salon Today for fastest growth, marketing and philanthropy in 2010 and 2011
Named Favorite Pittsburgh Salon 2010 and 2011
Beauty Restores Foundation
Launched philanthropy arm of Geno Levi Brand with the creation of (501c3) Beauty Restores Foundation
Developed giveback of 296 gross product sales go to foundation for funding of transformative programming at
rescue missions in Pittsburgh
Launched student ambassador program who serve as awareness builders for the Beauty
Restores Foundation while earning credit for college
Fostered corporate relationships to help raise monies for mirror scholarships for program
ambassadors and nominated graduates oftransformative programming at rescue missions
Hollywood Tans, LLC 2007 - 2008
Vice President, Marketing
Directed comprehensive brand relaunch, advertising and promotion for 320+ franchises.
Introduced TANETICS brand, achieving team restructure and full stakeholder alignment in 30 days.
Established vital growth through full-channel initiatives in coordination with C-suite and franchisers.
Web/Interactive
Develop and launch web initiatives to engage consumer in HT Tanetics experience while leveraging
program that increased average guest spend 2896.
Created synergies with blogging sites to increase daily exposure by 1096 (going from 10k unique visitors to
an average of uok) MOM translating into increased average guest spend 1596
Launched Red Carpet program for guests to receive insider information on celebrities, HT news and
discounts. Program web-based with phone/text initiative. Increased awareness and guest traffic to stores
in five key markets
Overall responsibility for marketing P&L and understanding company cash-flow and franchise
contribution initiatives
Responsible for all strategic SEO and SMO initiatives
General Nutrition Centers (GNC) 2003 - 2007
Sr. Director, Marketing+ Director, Creative & Production+ Manager, Direct Marketing
Managed $6oM budget and 40 staff members in strategic positioning of 5,000+ stores globally and 10
brands with 5 key direct reports (Visual Merchandising, Direct/Web, PRj Corporate
Communication/Advertising & Creative).
Point person for investors and financial institutions while producing the financial road show, mentoring
C-leve] executives in presentation technique.
Drove creative direction of 5 core brand segments with oversight and approval of all production.
Managed comprehensive media buys totaling $40M.
Simplified consumer engagement by creating attainable product positioning, cross-selling categories and
introduced color-coding to enhance ease of use.
GNC Web/Interactive
Co-team lead of relaunch of GNC.com to incorporate ecommerce platform in a vastly competitive and
saturated space. First year traffic and sales exceeded plan by 1296.
Responsible for all interactive initiatives, guest engagement, SEO/SMO management and relational
marketing
Responsible for strategic online brand and promotional advertising, creating 360 models with major
media to streamline processes and spending, maximizing efficiency and reach
Oversee public and investor relations, while developing conflict/proactive media strategies
Consultant 2001 - 2003
Creative Director/Brand Strategist
Developed award-winning, broad-based campaigns for high-profile agency and client-side businesses.
Ketchum Agency 1997- 2002
Supervisor, Creative Services+ Senior Account Executive
Launched client from startup to national recognition while rebranding and repositioning service lines.
Formed and led creative teams in multi-media concepts and production plans for corporate accounts.
Art-directed video and photo shoots, e-development, print, and broadcast efforts; produced tradeshows.
Previously: Account Coordinator+ Media Buyer- Media Director+ Quest Fore
Jennifer Schlieper 412.916.7495
50 Academy Drive + Pittsburgh, PA 15228 jenniferschlieper@mac.com
Non-Profit Experience
Pregnancy Resource Center of the South Hills 2003-Present
Consultant/Fundraiser
Work with Executive Director and Board providing strategic planning for fundraising events including
theme walks and annual fundraising dinners helping raise funds for annual multi-million dollar budget
while increasing overall awareness of individual programming
Provide guidance and outlook for PRC brand strategy.
Event Producer and creative director
Light of Life Rescue Mission
Consultant
Work with development team to strategize new initiatives
Provide insight for community-based challenges and programming
2010-Present
Hillcrest Christian Academy 2003-Present
Consultant/Brand StrategistfFundraiser
Re-launched Hillcrest Christian School brand to Hillcrest Christian Academy while providing strategic
guidance on brand structure.
Facilitated key research initiatives to give clear direction on key messaging and growth strategy.
Work directly with HCA board and Principal to lead major fundraising initiative for HCA gym project.
Event producer and point person for event coordination
Provide Board President with strategic insights on HCA initiatives.
Beauty Restores Foundation
Board Member
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Opened Tltlo Vol/ Numllssuo
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Burdla Up Cl>okflf W508
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Haute Knockout2St0!1c Drop Earrings WS40JAB
Haute Knockout Choker W335VM
Haute Kr.ockout Necklace WS23
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Voll Numllssue
Month
Type of Cue
Year
DA Rltj)lollisl'
Work of the Vlsu::.l Ar1s
Work of tr.e Vi!lual Arts
Work of tl'lo VISual Arts
Work of 11\e Vmual Ar1S
Work of the VaJUal Ans
Work of too Visual Arts
Work of too Vsual Arts
Work of tM VISual At1$
Work of the VISual At1$
Work ol the VISual Arts
Worlt of ltv. VISual Arts
Work 1'4 t1w> Visual Arts
Work of thA Vrsual Al1s
Work of the Visual Ans
Work of ttw. Vrsual Ar1S
Fee PakS
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CD80ti Opnnod Tltkl Voll Numllasue
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Year
. , . . ' i : ..
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I
I ! t- ClosOCl 1:1:"2<i2012 Supernatural Manhattan BrllCoiOt W11 nsup Wor1< of tllO VIsual Arts
I
I ; .. .. Closed S/24/2012 Supernatural I..Dndon Cllokcr W259LUG Work of til& Vsual Arts
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Closed 912412012 Vun:ago Supernatural Manhattan Chokor WV840SUP Work of the VISual Arts I
I
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i ' ... Cbsod 9124/2012 UnderstatiHT1CII1t Oval R1ng WSJOLAZ Work of the V.sual Arts
'I'' '
ClOsed 9/24/2:)12 Undorstatoroort LondO!' Bracelltt Work of the Visual Arts
" .. I CIO&od 9!2-'.12012 Unclorsta!Ornent LDndOI' Choker W2S9UND Work of the VIsual Arts
-f "" Closlld 9/2412012 Undorstaklment Nocklaco W509 \'llork of tile VISual Arts
Closed 9124/2012 Beautifully Simple Drop E.arnngs ws.t3CR Work of tt1o Visual Arts
{ < :c Closed 9.241'2012 Boautlu ly Simp!& Chandoller Earrings 'N533 Wort< of tnft Vsual Arts
I
. Closed 9.12412C12 BeautlfuiiV Simp!& Oval Rin9 W530CAP
. ,. Closed 912-<12C12 Bosutifuly Simp!& Crystal NfiCklaco WS12
'' i Closed 9/24/2012 BooutiluRy Simplo Long 5 Raw NfiCklace W502
- 4: 1&7 ClOSed 912412012 lrnoceot 2Stono Drop
Work of the Vsual Arts
.i, Closod 9/241'2012 lrnocont Daoglct Earrings WS34
Wort< of the Visual Arts
. ; Closod 9/24/2012 Innocent Art Doco Choker W504
..
- {. - :: , Closed 9!24/2012 lrnocont Long Poatl N11Cklnco W514
Work of tho VISual Arts
! :;.: r, Cbsod 9/24/2012 Lalellt LUlllo Pearl Drop :.amngs W549
Work of tho VIsual Arts
.: Opoo 9/24.12012 LatllSt Luxo VIenna Earrings W424GRG
Wort< of the Visual Arts
f to.- Cbsed 912412012 Lalellt L11xo Fancy N11Cklilco ws:J7
- -- - - --- - -- . t----- -- - -- - . . - - - --- -- - .. - ------ - - --------- --- .. .. _ _ - - - -- - - -- --
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9J2.412012 Latost Luxe Fancy Necklace WS07
912112012 Latest Luxe Poart Necklace WS19
9t'2412012 Glanazoo 2Stone Drop Earrings \'I/S40DB
912412012 Glarnazor Drop Earrings W058CAP
9t'2412012 Golf Earrings W2069DB
912412012 Glarrazon Manhattan Bracelet \'111177GL
912412012 Glan1UOf' Necklace WS22
9/2412012 Glanazon Manhauar Choker W840GL
912412012 CI-IC StW Multi Earrings W542CYO
912412012 Cl1ic Stir Lon<lo!! Bracalot W440D8
9124!2012 Chic Stir Londor Choker W2590B
912412012 V.ntage Chic Stir Choker
912412012 Modernism Drop Earrings 539
9124!2012 Modernism Danglct Earrings WS37
9.r24l2012 Modernism Rilg WS32
912412012 Modernism Bow Necklace WSZ7
9t'24/2012 Modernism Lariat W503
912412012 Strength Da119le Earrings
912412012 Strength V1enN1 Earrings W424DB
912412012 Strergth Luxury Choker W50C
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Voll Numlluue
Month
Yoar
Type of Case Feo Paid
Work o1 tho Vcsuat Al1s 35.0
Work of the Visual Arts 35.0
Work at the Vaual Arts 35.0
Work at tho VISual Ails 35.0
Work at the Visual Arts 35.0
Work of tho Vsual Arts 35.0
'Nor1< of the Vaual Arts 35.0
Work of the VISual Arts 35.0
Work d the VISual Arts 35.0
Wort ol the VISual Arts 35.0
Work ollhe Visual Arts JS.G
Work ol the VISunl Arts 35.0
Work ol tho Visual Arts
Work at the Visual Arts
Work d the 'lflsual Arts
Wor1< at the Vosual Arts
Work d the VISual Arts
- ---- ------ -'---- - ------------ - - - - - - - ---
"nvacy kl Nc!!co: Se<:Nlo's 4C<I-410 a 1o11e : 1"' II> L.hllea Cooe &ulllotae 1114! Q!<;ce !O IICnG'k111y rderlo'Y""G .1'1-.oar raQ..e&led on 11H {<Jml,fl onMY :o croceu tne .lllCI.c:aJoon far capyngrn
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Month
TypoofCaso Foo Paid _:.
Year
I
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' : -: l' ; - Closo<l 9.'2412012 Strengtt> Denim Necklace W501 Work oftt>o VISual Ar1s 35.C

.. 1' Working 912412012 Strength W501 Wort of the Vsual Arts 0.(
Acco.ss Copyright Offl::c lrforrr:stiofl
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Cbscd 9i2412C12 PeroflPillls Srnoft Drop Earrings W3754BOU Work ol tt>o Visual Arts 35.(
' J Cbso<l 9124/2012 Peronni:JIS Ul'loied Fufl Bracelot W2584BOU of tt-.e VISual Arts 35.(
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Cbscd 912412012 Perernials Unloilcd Fun ChokerW127BOU Work of the VauaiAtts 35.(
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f - - ' Cbscd 912412012 In l.Die Cluster Earnngs
Work of t11o VIsual Arts 35.(
I

Cb5ed 912-412012 In l.Die London Bracetot Wor1t of the Vtsual Arts 35.(
I + ' Closed 9(2412012 Vlr1ngc In love Heart Choker WVS11
Work of the Vsual Art:s 35.C
; - Closo<l 9/2412012 In love Chair' Necklace WS28
Work of tho Vtsual Ar1s 35.C
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Work of tho Visual Ar1s 35.(
: "' : "I: Closed 9123J2012 WIYie Opal Golf Earrlr1gs CM2069W0P
Work of the VIsual Arts 35.C
1 , ; Cbse<l 912312012 Rose Wulllr Opal Golf Earrings CM2069RW
\'Vork ol tho VISual Arts 35.C
i ' , : j . ' Cbso<l 912312012 A8 Golf Earrings CM2069A8
\'1/ofk of the Vual Arts 35.C
t . .. ,
Cbsed 912312012 Gold Shadow Golf Earrings CM2069GS
Work of the Vsual Arts 35.C
' '' ' [, ' '. Closed 912312012 Ltght Smoked Topaz Goll Ea!:rings CM2069LST
Work olthe Visual Arts 35.C
I
. .. i . Closed 9123/2012 Black Dial'nO!ld Golf Earrings CM206980
Work of the VIsual Arts 35.C
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' Closed 912312012 UghtAzure Golf Earrlnga CM20691.AZ
Work o1 the Vsual Arts 35.C
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Closed 912312012 Pacific Opol Golf Earrings CM2089P0
'Work of the VIsual Arts 35.<:
- ; Closo<l 9/2312012 Metalic Blue GoW EaJTings CM2089MB
Work of lhe VISual Arts 35.{)
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I
Click qn the Status Definitions link in the right top most navigation menu for a complete list of case status definitions
additional details about a case, click on the correspon<ling case# hyperlink below
Statue Opone-d Tltkl Vol/ Nurnllssuo
, .. , i .. Closo<J 91231'2012 Jet Black Golf Earrings Ct.12c&9J
I .. .
Closod 9123i2012 Sium Golf Earriflgs CM2069SI
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Cb5od 9:'2312012 Crystal Smal Drop Eorrr11gs CM3754CR
. " .. I .. . . ClosOO
9!2J.I2012 WN1o Opal SmaH Drop Enrnrgs CM3754WOP
:. I . Closed 9173.'2012 Rose WDtot Opal SINill Drop Eonmgs CM3754RW
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9.'23l2012 AS Smal Drop Earrings Cr.I3754AB
( . Closod 91'2312012 Gold Stledow Small Drop Earrrngs
\ ' ... I'' '' Closed 9!'2312C12 Dorado Smal Drop E&rrings CM3'75400
, ; 1 ,., : ClosG<I 9.123/2012 Slack Oemood SINI Drop Eorrings CM3754BD
: . .. . , Closo<J
91'23/2012 Homallle Sinal Drop Earrlrgs CM2754HE
" I' :: Closod 9123i2012 Poctrc Opal Srnal DroP Elsrrrgs CM3754P0
<'. t . ' Closed
91'231'2012 lnclllln Sapphire Smell Drop E11rril'1gs CM37S41S
... ' I r: Closod
9:'2312012 Slam. S_!l'811 Otop Earrings CM2754SI
. . , :. I . 1: . C1os<
912312012 Crystal ClassiC$ Studs CM2511CR
: .... .'" ClOsed 9:'23.'2012 ABClassica Stud$ CM2511A6
: . .. . : . Closod 9123t'2012 Bla<:k Diamond ClassiCs CM2511BD
. . . 1
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S/2312012
Topaz CI05sJCs Stud5 Cm2511LST
; .. ; CIDsod
9/21/2012 Light Sappnire Classes Stud$ CM2S11LS
Month

TypeofCno
wort! of 1110 Veua1 Arts
VVork of tho V15uul Arts
VVork of the ViSual Ms
Worl! of lho Vi!lual Ar1:i
Work or the V15 uu1 Arts
Worll or tho Visual ArU
Work olthe VISual Al15
or the Visual Arts
WOrk of the VISual Arts
Work or the VISual Ar1:i
WOrk 01 the Visual Aru
Work or the Vilual Arts
Wor1l of the Vl$ual Arts
WOrk of tho V!Su&l Arts
WOrk Of tho VISual Arts
Wotl( of tho VIS UDI Al15
Work of the. ViSual Arts
WOrli of the VGual Arts
Fo,o Paid
35.0
35.0
35.0
35.0
35.0
35.0
35.0
35.0
35.0
35.0
35.0
35.0
35.0
35.0
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,., ' CIOsod 9i21/2012 Gardon Party Fun Bracolot CM2584TS Work olttle VISual Arts 35.0
J ' . Closo<l 9121/2012 Garden Party Fun Choker CM882TS Work Of tho ViSual Arts 35.()
I - - . - .. - . - . . - -
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list of all cases you have initiated. Refer to the status column to
Office, those that are in-process in the Office. and those that have been completed.
I
Click on the Status Definitions link in the right top most navigation menu for a complete list of case status definitions
, , , ) : r To vielv additional details about a case, click on the corresponding Case # hypertink below.

""
Oponod . Tltt. Vol! Numllsauo
Month
Type of Caao fi)O Paid
8tatua
Yoar
I . :!
CIOSOd 91'2112012 Garden Party 2Rov. Necktaeo Cm1390 Work t!'c, Vi!iual N1s
M
ClOSed 9.12112012 Patty Cros.s PoncSaf't CFC38MU WOrk of IN! 1/.s ual At1s
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Worktrg 9/21.12012 Gardon Pony Cross Pcr.dart CF038MU WOrk ot !l't:! VISual Arts
l Cbsod 91211'2012 Gareon Party Daisy PoNJallt CF2369VIIH
Work oc !t-e V.sua1 Ans
I
ClOSed 912112012 AB GOlf
Work olll'c Va:ual Ar1s
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CIOSOCI 9/2112012 Crystal GOlf
Work oiii\C VISulll At1s
CIOSod 9j2112012 RO&o W8161 Opal GOII NockiOCO CM2098RW
tr<: Vtr.ua1Ar1s
.. .. t Opcr 912112012 Bla<:k Olamon<J Gor NeckiOcc CM2Q98BO
Work of VISual Arts
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Closed 912112 ligt\t Roso GoiC! SNidow Daisy Eatnn9' Cr1441LR
Work of ll'e Vi:; ual Arts
Cbsod 912112 WIWto Opal Fur BracoiOt CM2584WOP
Work of IN! VISual Arts
I . . Closod 9121/2012 Crystal Fun Brncelot CM25&4CR
tr-.o VISual At1s
, .. Cbsoo 912112012 Colclbratlons Fuo Chokor CM862TP
Work of tno Vasu.:al Art$
:-: t .. ;, .. ClOSod
9121!2012 Crystal AS Hoart Pol\dal't
Work of Visual Arts
- -- ' l Closed 9/21,12012 lighlAmotrlyst !-klan PeMarl CM1013LAM
Work of tl\r: VISual Arts
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Cbsoo 9,121/2012 Crystal A8 run Bracelet CM2564AB
Work of IN! V.sual Arts
' l-- Closod 912112012 Gr;teo Drop Eanir.gs CFOS8BO
Work of Vsual Arts
..
CbS04 912112012 E"Yoryday Oval Ltrk Necktoco CM1470 ' . '
Work of ll'c VISual Art$
- . I . Closed 912112012 Jot HoartPonaar.t CM1013J
Work of 11'10 Visual Arts
I.
ClOSed 9/2112012
8tack Diamond Heart Pondnf't CM1013BO
Work of !Nt VISual At1s r
. i ClOSed 9i21/2012
Eoryday Round Lirk NecklaCe CM2349
Work of 11\o VISual Arts
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311/2013 Garden Party - Tray 12- Classics Work of ti\C VISual Arts 795
31112013 Closing Night - Tray 8- Clossics Work of the VISual Arts 795.
311/2013 Casual Friday- Tray 6- Classics Work of tllC Vsuat Arts 795
311/2013 Ladies Luncl' Troy 3 - Cklssics Work of the VISual Arts 795.
3i112013 Wf'o and OINt - Tray 2- Classics Work oftho Visual Arts C.
31112013 W111e arrd Dinct - Tray 2 - Classics Work of tho Vsual Arts 795.
31112013 Opening Day Tray 1 Work of the VISual Ar1s 795.
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111112013 Vllltagc Pearlized Large Drop Earrings SV218C-BOU Work of the VIsual Arts 35.1
111112013 Pear1izod Far>cy Drop Earrings S6SO
1/11/2013 Edilbr Poarized Manhattan BracoletSE1177-PEA 'Work of the Vcsual Al1s 35.1
111112013 Pearized Flawof Necklace 5649
Work of tile Vsual Arts 35.1
111112013 Editioo Pearlized Manhanan Chokor SEB40-PEA
Wortc of the Visual Arts 35.\
1111/2013 'h!tage T-Shin PondarTtSV655
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111112013 Edilbn T-Shirt Venna Earrings SE424-CRM
Work of the Visual Arts 35.1
111112013 Edilbn T -Stlirt Daisy Ring SE532-TSH
Work of tile Vual Arts 35.1
1/1112013 T-Shirt Stretch Bracelet 5652
'Work of the VIsual Al1s 35.(
1/11/2013 T-Shirt Turquoiso Stretcl\ Bracelet 5651
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1/1112013 Edilbn T-Shirt Vienna Choker SE335- TSH
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Edilion Youii'IM Heritage MafiNittar &acole'l SE1 17 .. .
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Uptown Polish 2S1Dne Studs 5640-GS
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Work of the VISual Am;
Work of ltle VISual Ans
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EXHIBJT3
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SABIKA TRADEMARKS
OURDKT. TRADEMARK CLASS* SERIAL NO. FILING DATE REGISTRATION REGISTRATION
i
NO. NO. DATE
I
6120-6 Heart Design 14 85/843,540 February 7, 2013
6120-7 Golf 14 85/877,459 March 15, 2013
6120-8 Sabika Manhattan 14 85/879,755 March 19, 2013
6120-9 Fun 14 85/877,550 March 15, 2013
6120-10 London 14 85/877,506 March 15, 2013
6120-11 Vienna 14 85/877,570 March 15, 2013
6120-12 Sabika Love 35 85/889,533 March 28, 2013
6120-13 Sabika Classics 35 85/890,020 March 29, 2013
6120-18 Sabika 14&35 85/888,908 March 28, 2013
6120-19 Heart 14, 18, 25 & 35 85/343,470 June 10, 2011 4,077,226 December 27,2011
6120-20 Sabika 35 85/343,359 June 10, 2011 4,087,637 January 17, 2011
6120-21 Sabika 14 77/261,515 August 22, 2007 3,731,881 December 29, 2009
6120-22 Austrian Crystal Jewelry Sabika 35 85/343,406 June 10, 2011 4,189,055 May 29,2012
6120-23 Sabika is the Promise of A 35 85/321,647 May 16,2011 4,087,021 January 17, 2013
Smile, The Beginning of a Story
and the End of Going
Unnoticed
*Class 14 is for Jewelry; Class 18 is for Tote Bags; Class 25 is for Aprons & T-Shirts; and Class 35 is for Retail Services.
EXHIBIT4
I, Natalie E. Tennant, Secretary of State of the
State of West Virginia, hereby certify that
GOSHEN SPARKLING JEWELRY, LLC
Control Number: 99VQX
has filed its "Articles of Organization" in my office according to the provisions of West Virginia
Code 31B-2-203 and 206. I hereby declare the organization to be registered as a limited
liability company from its effective date of July 10,2012 until the expiration of the term or
termination of the company.
Therefore, I hereby issue this
CERTIFICATE OF A LIMITED LIABILITY COMPANY
Given under my hand and tire
Great Seal of the State of
West Virginia on this day of
July 10,2012
Secretary of State
Natalie E. Tennant
Secretary of State
1900 Kanawha Blvd E.
Bldg I, Suite 157-K
Charleston, WV 25305
Penney Barker, Manager
Corporations Division
Tel: (304)558-8000
Fax: (304)558-8381
www.wvsos.com
Hrs: 8:30a.m.- 5:00p.m. ET FILE ONE ORIGINAL
(Two want a nlecl
stamped copy returaecl to you)
FEE: $100,00 (see chart for
additional fees)
WEST VIRGINIA
ARTICLES OF ORGANIZATION
OF LIMITED LIABILITY COMPANY
v
We, acting as organizers according to WV Code 31B2202, ndopt the following Articles of Organization for a West
Virsinia Limited Liability Company:
1. The name of the West Virginia limited liability
company shall be: [Tho name mun contain one of the
GOSHEN SPARKLING JEWELRY, LLC
lcnnS such u "limited liabilit)l company" or abbreviations such u "LLC" ----------------
"PLLC"- sec instructions for alill ohcccp!Bblo terms.]
2. The company will be a:
D Professional LLC for the profession or. -------
Street:
385 1/2 White Pines Road
3. The address of the initial designated
office ofthe company in WV, if any
will be:
located in the county of:
City/State/Zip: _P_rin_ce_to_n,_WV_2_47_3_9
Mercer JUL
4. The address of the principal office
of the company will be:
County:
Street:
385 1/2 White Pines
10
lOtz
OFF1c
Princeton, WV 24739
located in the county of:
The mailing address of the above
location, if different, will be:
City/State/Zip:
County:
Street/Box:
City/State/Zip:
Mercer
385 1/2 White Pines Road
WV 24739
5. The name and address of the penon Name:
Michelle Oxley
to whom notice of process may be
385 112 White Pines Road
sent, if any, will be: Street:
Princeton, WV 24739
City/State/Zip:
6. E-mail address where business correspondence may be received: lifelinedir@pcogwv.com
7. Website Address of the business, if any: QOShensparklingjewelry.webS.COm
8. The name and address of each organizer:
Name No. & Street Address City, State, Zio
Michelle Oxley 385 1/2 White Pines Road Princeton, WV 24739
Sheraine Gunnoe 223 Nice Street Princeton, WV 24 7 40
laued byrhe Oftlcc oflho Sccrewy orSIIIIC Rnioed 0"12

1111
k $188.88 87/U/2812 1887651
WEST VIRGINIA ARTICLES OF ORGANIZATION
9. The company will be:
I 0. The company will be:
an at-will company, for an indefinite period
a term company, for the term of ___ years
member-managed
manager-managed
Pagel
List the name(s) of the member(s)/manager(s) ofthe company (attach additional pages if necessary)
Name Street Address City. State, Zip
Michelle Oxley
Sheraine Gunnoe
385 1/2 White Pines Road Princeton, VW 24739
223 Nice Street Princeton, VW 24740
II. All or specified members of a limited liability
company are liable in their capacity as members
for all or specified debts, obligations or liabilities
of the company.
ll1
D
No-All debts, obligations and liabilities are those
of the company
Yes-Those persons who are liable in their capacity
as members for all debts, obligations or
liability of the company have consented in
writing to the adoption of the provision or to be
bound by the provision.
12. The purpose for which this limited liability company is formed are as follows:
(Describe the typc(s) of business activity which will be conducted, fcor example, "real estate," of residential and commercial
"commercial printing," "professional practice ofarchilcclurc.")
To create, market and sell jewelry, trinkets and other collectibles, and shall Include the transaction
or any and all lawful business fo1 whlclllimited liability companies may be formed in West VIrginia.
13. Is the business a Scrap Metal Dealer?
D Yes [lf"Yes," you must complete the Scrap Metal Dealer Registration Form <Form SMD-1).
Proceed to question 14.].
I I' I No [Proceed to question 14.)
14. Other provisions which may be set forth in the operating agreement or matters not Inconsistent with law:
[See instructions for fUrther infonnation; usc exlnl pages if necessary.]
None
IS. The number of pages attached and Included in these Anicles is: _0 ___ _
16. The requested effective date is:
[Requested date may not bl! f!Qr/ler til an
filing nor latu than 90 da)'s after filing.]
FannLLD-1
I I' I the date & time of tiling
D the following date-------and time ____ _
Issued by lho Offieo of the Sccn:tary of SIBle Revised 05/12
WEST VIRGINIA ARTICLES OF ORGANIZATION Pagel
17. Contact and Signature Information:
a. Contact person to reach in case there is a problem with filing: Michelle Oxley Phone# <
304
)
809
"
8111
b. Print name of person who is signing articles of organization: _M_ic_h_e_l_le_O_x_le_y _____ _
c. Signatw-e: ~ l . . Q J L t Q ~
Date: 06/19/2012
FormLLOI hsued by 1hc Offioe oflho Socnruy ofSrato Revised 03/ll
EXHIBIT 5
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+ 1J htrps i www.lattDOok.ccm
l!!l A,lple ICtoud Fottbook Twiner News"'
'.iobil e Uo oad
MoblloUplood
.. Goshen Sparkling
-'-" Mly 21 . 2011 V.l
L. \ce Co-nmcn S"\ ;,.
36 people tlu mts
Michelle L Oxley Thll photo docs not do t hi s.
t hoker j ustiu. It 1s. absolutetv beawtifuHII
M.ly2: 1. 20Uat933.1m Ukt
Coshen Sparttl1ng Yn
M.JY 21 2012 at 9 <\193m v.a mobile Uke
MAnn McPeak How much7 rw Qot
lolblka ntckqu ab HOne t un't believe h0111
--- much lhll l ooks li ke Y blka j tJ 1o0 preny
GOSHEN PRODUCT
M.Jy Zl 2012 ilt 9 vla mobl e Uke
Sandra Collins Smllh WCYW love It
May 21.2012 otlO liu .0 l
.. Coshen SpartLIIng ,tti t iUI, toniQ.hr onfy the
-- tatoe stont chokers wt n be ! 75.00. Hope to St-t:
you at the open house
M&y 21 2012 at 10 'ria mobile
Jtnlca Mann Mtl"t!lr. WOfll you hiV't Qreat
prices! .:,.
'-1ay 21 2012 at 10 32am mobHt UICA:
C..rol Scon Wish 1 could be there tNt
f'Y'I!! nl nlliJ.
l.'.av2:1 2012at 26ilm lib
jenny Gross Th'WalteJ 'Wh&t 11 nwne: ol che
tholur looks so pretty\
21 2012 at 1 .COprr 'lltol mobile
... Cot.hen Sparkl+ng 75 conlght only from 6 to 8
-- 21 1012 at 5 34pm v. Ub
VIckie Farmer Mikles Is thl s one pictured an
A./I lib tht VieMo1 Sl b.J.fu?
)une 1 2' 12 ar. 10 02pm Ukt
Vlc.kte Farmt:r Mikles Of' 11 tht1 Ught VhRl'
)une I, Z012 .tt JO 06pm Ukt
Chrl5ty Silk CArico Is lhl1 the Afl stOnH7
8 1012 at 1 16pm UkP
Coshen Sparkling This IS Vitral Ught
-- NOYembtr a. 2012 a.t 1 l&pm mobile Uke
Uncb Anthany loYe .. muM haw Ill
NOYember 8, 2012 "" 2 Ulw
,._ ..... .. - .... , ........... t .... , ..... ,
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EXHIBIT 6
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EXHIBITB
Home
Homr Produ<U Ahoul Us. Fo\cf'book Homf' Con1u1 Ul fAf)
IJitus 3:5
J{e S(l'CJt?a US, 1l0t 6ecause ofngfi.teous tfiings 'We (uu{ aone, 6ut
6ecause of fiis mercy. :f{e sa-r.>ea zt.s tfirougfi. tfie washing of
re6irtli aua renewa{ 6y tlie Jli.>{y Spirit.
We{come to qoslien SparRfing Jewe(ry!
Page 1 of 1
Wc would like tu tllkc this oppormnity tn thank nil of our custom erg who hnve upponed our businc ewer the P""'t 10 months.
ofyuu, Goshen Sparkling Jrwdry has become a Kucccss >tnd in doing so, we h11vc become a L'lrgct of n multi million dollar business who
WIUIIll tu put smnll businesllcs out of opcnttion for their own finm1cial gnin.
Goshen Spnrking Jewelry been or copyright and trndtm:.uk infringement by Sabika. We not and will not infringe on
trodemarks or copyrights. No part& of our jewelry hns been ustd dh\t is " trademark or "opyright. There lul\'c been individuals who have
tried to entrap llS by coming to our shows nnd plncing special ordcro trying to get us to usc their protected copyrigbtund rrademnrk. If
this bax happened, nnintcmional and unknowingly done because '1\'C did nut know the items had been copyrighted or
This i a very low und scheming 111tempt to bring lcga.l action aguinst uR and mu business down. We nbsolutcly refuse
to be dueatened or intimidated by n large company and their nttomcyR. We hnve been amised by legnl counsel not to stop making d1is
heamiful jewelry but ruther to kel.'p our business moving forward Wr will continue \vith all scheduled shows and our products can be
purchased ns If you would like to buy Snbika products, arc webitcs, and conguJtants that you can contnct to do
so.
Tlmnks agnin for your SUJ>port prnycn;. \Vc look forwllrd to stcing you snon al a shuw nc11r you.
God bless you
Tht Goshen Sparkling ]l'"'eby ftmtily
Janu;m 22,l013
htto://goshensoarklingjewelrv .com/ 3/8/2013
EXHIBIT C
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Registered through: GoDaddy.com, LLC (http://www.godaddy.com)
Domain Name: GOSHENSPARKLINGJEWELRY.COM
Created on: 20-May-12
Expires on: 20-May-17
Last Updated on: 20-May-12
Registrant:
Goshen Sparkling Jewley
385 1/2 white pines road
Princeton, West Virginia 24740
United States
I { I ;::--, ( l
Administrative Contact: \ 'v'
Gunnoe, Sheraine Goshensparklingjewelry@gmail.com
United States
3048098131
Technical Contact:
Gunnoe, Sheraine Goshensparklingjewelry@gmail.com
United States
3048098131
Domain servers in listed order:
NS05.DOMAINCONTROL.COM
NS06.DOMAIN:ONTROL.COM
' ,.,
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EXHIBITD
------------------------------------------------------){
SABIKA, INC., )
Plaintiff, )
)
)
v. )
GOSHEN SPARKLING JEWELRY; )
MICHELLE OXLEY; and )
SHERAINE GUNNOE )
)
Defendants. )
------------------------------------------------------){
DECLARATION OF CHRISTY MCNEIL
Christy McNeil states and declares as follows:
1. I work in the corporate division of Sabika in Greensboro, North Carolina as Field
Services Manager overseeing consultants over a wide geographic area covering the town
of Bluefield, as well as the Blacksburg/New River Valley area.
2. I have worked for Sabika eight years. Before that, I was a sales consultant for Sabika in
southwest Virginia for eight years. I initially signed on as a consultant and served as a
consultant for seven years; I also worked as a corporate liaison for 6 of those 8 years.
Before I worked for Sabika, I was in human resources at a commercial vehicle group.
3. I started at Sabika as an entry level consultant. I was the first consultant in North
Carolina. After about a year and a half, my family moved to Blacksburg in southwest
Virginia. Business grew e){ponentially and I was promoted to a suitcase manager, which
means I oversaw 40 to 50 consultants.
4. My family then moved back to North Carolina and I was promoted to my current
managerial position overseeing the rest of the consultants in the United States.
5. I handle all of West Virginia, except for the Blacksburg/New River Valley area and
Bluefield, which are managed by Jeannette Boyd. Sabika's biggest areas for sales and for
number of consultants, out of all our operations in the US, are West Virginia, Virginia,
and Pittsburgh, Pennsylvania.
6. I am familiar with products by Goshen Sparkling Jewelry ("Goshen"). Goshen and other
smaller imitators have troubled Sabika in areas where Sabika has become popular.
7. I have seen products from Goshen as well as Frost yourself and Christy's Crystals. I
know from some of my consultants that Goshen have been traveling to parking lots and
have been evicted because they do not have permission to be there. I have heard that
Goshen is trying to recruit consultants to operate in a similar manner to Sabika.
8. My consultants have seen Goshen in hotel conference rooms in North Carolina and have
told me that Goshen does not give receipts for their sales. Further, my consultants have
stated that Goshen uses the Sabika catalogues to show their customers the pieces they
will make for them. Goshen was using Sabika catalogues as recently as February and
March of2013.
9. Increasingly since the summer of 2012, I have received complaints from Sabika
consultants saying that Goshen has appeared in an area preying on their customer base
and damaging Sabika sales.
10. Consultants are losing customers to Goshen because their products are so much cheaper
and they look similar.
2
11. I heard about one Sabika customer who had a Sabika neckJace and went to Goshen to ask
them to make matching earrings. When she wore the Goshen earrings she got a terrible
infection all over her face and neck. Goshen refused to give her a refund. She came back
to her old Sabika consultant saying, "I guess you get what you pay for" and said she
would never buy from Goshen again.
12. Another customer said she bought a piece from Goshen and it broke the first time she
wore it. Goshen refused to fix it and told her to get a pair of pliers. Sabika, in contrast,
stands behind our products and offers a lifetime warranty.
13. I have seen Goshen and it looks cheap to me. The stones are not as bright and the metal
and the stones both look like plastic. The quality is not the same.
14. Swarovski has different grades ofcrysta1s, priced according to the stones' quality.
15. Sabika only buys the highest grade crystals from Swarovski because we have a good
relationship with Swarovski. Goshen claims their crystals are the same, but I have seen
them and do not believe they are of the same quality.
16. I know immediately when I see Sabika and when I see a knock-off. The knock-offs look
cheap and gaudy. The stones do not look real. The necklaces do not lie naturally around
the neck. Rather, they look stiff and you can tell they were constructed on a flat surface,
without the care Sabika puts into our products. When a Sabika neckJace lies on the neck,
it lies naturally on the contours of the body. Sabika has a process to use foil on the stones
to bring out their rich colors.
17. I have heard that Goshen uses Sabika catalogues to show their customers the pieces they
will make for them. They are clearly imitating Sabika by producing pieces which use the
same color schemes and designs that we have come up with independently. Sabika
3
works hard on designing appealing and unique color schemes and Goshen keeps coming
up with the same thing. It is clear they are copying the Sabika designs that they have
access to.
18. Sabika has been successful because we create opportunities for local people to start a
business within their own community.
19. Sabika is a family business that is ethically run and cares about its consultants and their
communities. We give training to our consultants and stand behind our products.
20. Goshen is a threat to Sabika because they undercut our prices by offering similar products
for no more than about $100: three to five times less than our prices.
21 . Sabika has been substantially negatively affected by Goshen.
22. Our first quarter in 2013 is down 20% from our first quarter in 2012 even though we now
have more consultants than at this time last year. Moreover, our parties have been
cancelled.
23. These effects are only increasing as Goshen moves out of its original area to expand its
business geographically.
24. In areas where Sabika is not yet threatened by knock-offs, our business is growing and
more individuals are signing on to become consultants in their communities.
25. Between this time last year and now, Sabika has easily lost over $100,000 in sales.
26. Because of Sabika's business model of working with local citizens in their own
communities, the detriment to Sabika's sales is not a problem affecting a faceless
corporation, it is a problem for local individuals whose personal lives and incomes are
affected.
4
~ ~ M " ~
Christy M7cil
Field Services Manager for Sabika,
s
EXHIBITE
------------------------------------------------------}{
SABIKA, INC.,
v.
Plaintiff,
)
)
)
)
)
GOSHEN SPARKLING JEWELRY;)
MICHELLE OXLEY; and )
SHERAINE GUNNOE )
)
Defendants. )
------------------------------------------------------}{
DECLARATION OF BROOKE MULKEY
Brooke Mulkey states and declares as follows:
I am a Sabika consultant from Bluefield, Virginia. I sell in both Virginia and
West Virginia in an area of about 50 miles. I started selling Sabika eight years
ago.
After I graduated from school, I started teaching full time. I first heard about
Sabika when another teacher, Karen Frier, wore it to school. She had a heart
pendant and I asked her where she got it. She told me about Sabika and its
parties. Karen Frier was the first consultant in Virginia, where she still sells.
I have been ememely successful. I am a Silver Director. I have three directors
under me, one of which is a Star Director. I have fifteen personal recruits in total.
I have been a Silver Director for almost two years now.
1
I usually have fifty to eighty parties a year.
There have been about 10% fewer parties in 2013 than this time last year.
The decrease is definitely due to knock-offs like Goshen Sparkling Jewelry
("Goshen"), Frost Yourself, and Christy's Crystals. I know of smaller imitators
too, but Goshen is the biggest problem.
I know people who have been to Goshen parties and they tell me that Goshen
made available Sabika catalogues for people to look through and choose pieces
they want to order.
I have heard Goshen is looking for consultants in an effort to imitate the Sabika
business model.
I can tell when someone is wearing Sabika and when they are wearing a knock-
off. The fakes, including Goshen, do not have the same quality in metal or in
stones. Their colors are not as vibrant. I know people who are careful not to by
the non-Sabika pieces after seeing them because those pieces are such poor
quality.
One of my customers switched over to Goshen because she went to church with a
woman associated with Goshen. She had a Goshen party for the woman;
however, said everyone at the party asked for Sabika. She decided never to have
another Goshen party because their product was lower quality and she was
embarrassed.
After the Bluefield newspaper ran a story about the lawsuit, there was an initial
2
reaction in support of Goshen, but it died down and some people came back to
Sabika once they saw the difference in quality.
I have lost six recruits in the past year out of my fifteen total recruits because once
the knock-offs come out the recruits know they cannot keep their customer base.
One of my recruits used to be a very strong sales representative. She earned
anywhere from $3,000 to $5,000 per month since 2007. Now her customer base is
gone and she no longer sells at all.
Sabika is my livelihood and I depend on it to raise and support my own family. I
make more money selling Sabika that I do teaching. I put more money back into
our local economy because of my business.
I am a local business, I am a member of the community, and I was here before
Goshen.
Dated: /a /{o h::J
I I
~ M W k ~
Consultant for Sabika, Inc.
3
EXHIBITF
-----------------------------------------------------X
SABIKA, INC.,
Plaintiff,
v.
GOSHEN SPARKLING JEWELRY;
MICHELLE OXLEY; and
SHERAINE GUNNOE
Defendants.
)
)
)
)
)
)
)
)
)
)
)
--------------------- ----------------------------X
The Honorable David A. Faber
DECLARATION OF MARLENE RATLIFF
Marlene Ratliff states and declares as follows:
1. I am a consultant for Sabika, Inc. and I have been working for the company since October
2011 .
2. Before working for Sabika, I worked full time at New Peoples Bank for 17 years in
Honaker, Virginia I stopped once I had a child and our babysitter moved away.
3. I first learned about Sabika from Ginger Lawson who asked me to host a Sabika party for
her and explained the company and business opportunities.
4. I was a Sabika customer for about six to eight months before I joined Sabika as a
representative in October 2011. I bought my first piece, a necklace I still have and
wear, in 2010 in Bluefield, Virginia. It was expensive so I did not buy many more at that
time.
5. As a Sabika consultant, I work with Sabika to sell their products at private parties and I
have been very successful.
6. I am a Star Director at the company. In order to get to that level you need to have three
active recruited representatives under you. To be an active representative, each person
has to sell at least $500 per month. To be a Star Director, I have to sell $1500 per month
and the team as a whole has to sell $5,000 per month. I have been a Star Director since
September of2012.
7. No one in Rosedale, Virginia knew about Sabika when I first started there. I was the first
consultant in the area, although Sabika was known elsewhere. I continued to be a
representative selling in West Virginia, Virginia, and Tennessee and quickly became
successful as the product gained popularity.
8. I know Sabika products and can easily tell by looking at a piece if it is by Sabika or if it is
a knock-off There is a real difference in quality in terms of the metals used by Sabika
and the cheaper knock-offs.
9. Goshen Sparkling Jewelry (''Goshen") has been damaging to my business because they
offer identical or nearly identical products for a fraction of the cost.
10. I have seen Goshen's products and they are clearly cheaper knock-offs of Sabika. The
metal is not as high quality and the stones are not as luminous, even if they are the same
color. The color of the stones used by Goshen is not as rich and deep as Sabika's stones.
I am not sure Goshen's stones are from Swarovski.
11. I know that the similarity between Goshen's products and Sabika's products has caused
some customer confusion. One woman approached me at church and proudly showed off
2
her necklace asking if I liked the Sabika piece her daughter had given her. I had to let her
know that it was not Sabika, it was a knock-off.
12. One of my customers has a Sabika supernatural necklace and asked Goshen to make
inexpensive earrings to match. When she got the earrings from Goshen she came back to
me because the stones did not have the right color and vibrancy. Their stones do not have
the weight and the depth of color. They do not compare to Sabika in tenns of quality.
13. One of my customers came up to me at church, holding her hand over her neck. She said
she was so ashamed, asked me not to be angry, and confessed that she had bought from
Goshen because her husband had been laid off from his job and she could not spend
money on Sabika. I told her she should throw a Sabika party and she would get jewelry
from Sabika at a discount because of the party. She agreed and said she would never buy
from Goshen again because of their poor quality. One of our most popular stones is the
luminous green supernatural color. A customer had tried to get a green supernatural
piece from Goshen because it was cheaper, but she was not happy with it. After she
threw a Sabika party with me, she got $450 worth of Sabika jewelry.
14. I have seen Goshen jewelry several times and it is very low quality. Some of my
customers have bought from Goshen and then come back to Sabika. The Goshen
products look and feel cheaper.
15. I have heard about Goshen selling at churches and in parking lots or at parties and they
bring the Sabika catalogues with them so customers can look at the pieces and pick one
out. Goshen promises to make something as close as they can to the Sabika piece.
16. Goshen sales have definitely harmed my business. Since March of 2012, I have lost
customers more and more as they increase their sales area. In October, a customer of
3
mine who had scheduled a party called me to cancel because all her friends had bought
from Goshen already and so they did not see the point in buying more expensive jewelry
from Sabika.
17. The damage has only increased as Goshen is becoming increasingly bold in offering its
infringing products and copying the Sabika selling model by hosting private parties.
18. A recruit of mine had two scheduled parties cancelled on her in the spring of2013.
19. Since this time last year, I have lost about 20-25 customers not only to Goshen but to
other imitators as well: Country Sparkle and Frost Yourself. New imitators are showing
up every day. I have lost about 10% of my customer base.
20. Some of my customers who have been loyal Sabika buyers have told me that they
originally bought the pieces because they were unique and gave them a personal sense of
style. Now that there are so many imitators like Goshen, those customers have said they
do not feel special any more. Now everyone has a crystal choker like the original Sabika
pieces they bought years ago.
21 . At least two of my recruits, in Richland, Virginia and in Bluefield, West Virginia, are not
actively selling now because knock-offs have taken over their sales. One of my recruits
had no parties this month and all her co-workers are buying the knock-offs.
22. I have heard that Goshen is recruiting people to act as consultants, imitating the Sabika
business model.
23. I have worked as a consultant for Sabika in my community for years as a local business.
Goshen s continued damage to Sabika damages me and my local recruits. Our local
business is threatened by Goshen.
4
Dated:? -2) U
5
- 11(!L7fcczU ; /
Marlene Rathff ?
Consultant for Sabika, Inc.
BLUEFIELD DIVISION
SABIKA, INC.,
Plaintiff,
v.
MICHELLE OXLEY; and
SHERAINE GUNNOE,
Defendants.
MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF SABIKA INC.'S
MOTION FOR PRELIMINARY INJUNCTION
Plaintiff Sabika, Inc. (hereinafter "Sabika"), by and through its undersigned counsel,
respectfully submits this Memorandum of Law in Support of its Motion for a Preliminary
Injunction, pursuant to Federal Rule of Civil Procedure 65(a), against Defendants Goshen
Sparkling Jewelry, LLC, Michelle Oxley, and Sheraine Gunnoe (hereinafter "Defendants"),
based upon Defendants' continuing copyright and trade dress infringement in this District and
elsewhere.
INTRODUCTION
Sabika commenced this action on January 16, 2013, and brings the present motion for
preliminary injunction to stop Defendants' intentional, ongoing copyright and trade dress
infringement of Sabika's jewelry and accessories. Plaintiff Sabika sells high-quality costume
jewelry of distinctive and recognizable design.
Sabika has a long established reputation for being a high-quality costume jewelry
designer, selling multiple jewelry lines across the United States and heavily concentrated in
Pennsylvania, West Virginia, and Virginia. Its jewelry and related accessories have distinct
designs that are either registered copyrights or are pending copyright applications, and that are
protected as trade dress on account of their widespread consumer recognition (secondary
meaning).
Defendants sell jewelry and related accessories that are either exact copies or
substantially similar to Sabika's protected jewelry designs. Substantial settlement discussions
over the past several months have failed to resolve this matter, and Defendants insist they have
the right to sell their imitative jewelry.
Defendants' unlawful infringement harms Sabika' s name, reputation, and good will, and
deprives it of sales it might otherwise make. The immediate and irreparable harm arising from
Defendants' intentional and ongoing infringement of Sabika's federally registered copyrights and
distinctive trade dress can be avoided only by an order enjoining Defendants from continuing
sales of their confusingly similar jewelry. Accordingly, a preliminary injunction should issue.
STATEMENT OF FACTS
A. The Parties
Sabika, a Pennsylvania corporation with its principal place of business in Pittsburgh,
Pennsylvania, designs, markets, and sells jewelry and fashion accessories in many states in the
United States, including West Virginia and Virginia. This family business, founded in 2001,
developed a unique business method of partnering with over 600 independent sales agents or
"consultants" who currently are located in 37 states. Sabika's products have been sold in all 50
2
states. Sabika's consultants promote and sell Sabikajewelry at intimate social gatherings such as
hostess parties or in-home parties. Through this expansive network, attention to detail, and the
quality of its products, Sabika has been an immediate and continuing success. It has designed
and developed numerous popular jewelry lines, and through its carefully developed consultant
program, it has developed a loyal following of women consumers who favor these elegant
necklaces, chokers, earrings, and bracelets. (Schlieper Dec. at ,-r 11, attached hereto as Exhibit
A.)
Defendants Michelle Oxley and Sheraine Gunnoe operate Goshen Sparkling Jewelry.
According to statements contained on their website, Ms. Oxley and Ms. Gunnoe began their
business around March or April 2012. (See "Goshen Sparkling Jewelry Statement," attached
hereto as Exhibit B.) On May 20, 2012, Goshen Sparkling Jewelry, through Ms. Oxley and Ms.
Gunnoe, registered a website domain name, www.goshensparklingjewelry.webs.com, to market
their jewelry. (See "Domain Name Registration," attached hereto as Exhibit C.) Ms. Oxley and
Ms. Gunnoe later formed Goshen Sparkling Jewelry, LLC on July 10, 2012. Because they
copied Sabika's designs outright, their original website included a disclaimer to warn potential
customers that they were not selling Sabika' s jewelry. After this lawsuit commenced,
Defendants' shut down there website and registered a new website domain name for
www.goshensparklingjewelry.com.
B. Sabika's Copyright Registrations
Sabika now owns approximately 70 copyright registrations, 170 pending copyright
applications, and owns the trade dress related to its various jewelry designs. (Schlieper Dec. at
,-r 5, Exs. 2-3.) Sabika's registered copyrights include: Wine and Dine, Registration No. VA 1-
836-897; Ladies Lunch Heart Pendant, Registration No. VA 1-837-180; Vintage Supernatural
3
Manhattan Choker and Bracelet, Registration No. VA 1-837-314; Sabika Pink Party Earrings,
Registration No. VA 1-839-261; and Sabika Pink Party Choker, Registration No. VA 1-839-264.
(Jd. at , 6.) Sabika further has numerous pending copyright applications. In addition to
protecting its intellectual property through copyright (and trademark) registrations, Sabika has
established a distinctive trade dress for its jewelry designs that Defendants are imitating. (!d. at
,-r 5.)
C. Defendants' Infringing Activities and the Resulting Confusion
Defendants began selling their jewelry at "open houses" held at churches in West
Virginia and Virginia and are now copying Sabika's selling method by selling at home parties.
Many of Defendants' jewelry pieces clearly infringe the registered copyrights of Sabika. (Jd. at
,-r 14, Ex. 5.) Defendants have "hijacked" Sabika's copyrighted designs and trade dress, and
Defendants continue to sell their copycat jewelry without permission or justification. Defendants
are slavishly copying the Sabika business model through and through without any right to do so.
Sabika has not given Defendants permission to sell such items, and its cease and desist requests
have been ignored.
ARGUMENT
A. The Standard for a Preliminary Injunction
In this District, to obtain a preliminary injunction a plaintiff must: ( 1) clearly show that it
will likely succeed on the merits; (2) clearly show that plaintiff is likely to be irreparably harmed
absent preliminary relief; (3) show that the balance of equities tips in favor of plaintiff; and ( 4)
show that an injunction is in the public interest. Doe v. Wood County Bd. of Educ., 888 F.
Supp.2d 771, 774-75 (S.D.W. Va. 2012) (citing Winter v. Natural Res. Def Council, Inc., 555
4
U.S. 7, 20 (2008); The Real Truth About Obama, Inc. v. FEC, 575 F.3d 342, 346-47 (4th Cir.
2009), vacated on other grounds, 130 S.Ct. 2371 (2010). The U.S. Supreme Court has
emphasized that the district court must weigh all of these factors in deciding a motion for
preliminary injunction. Winter v. Natural Res. Def Council, Inc., 555 U.S. 720 (2008). The
Court cannot apply any looser standard. !d.
As shown below, Sabika can carry its burden necessary to obtain a preliminary injunction
under this standard. Defendants blatantly copied and continue to sell numerous copyrighted
Sabika jewelry designs and to infringe the distinctive and protectable trade dress of Sabika.
Defendants have no justification or defense to their copyright and trade dress infringement, and
each sale by Defendants takes potential sales from Sabika. The irreparable harm to Sabika is
manifest. As such, the balance of equities tip decidedly in Sabika's favor, and it is in the public
interest to stop Defendants' infringing conduct immediately.
B. Plaintiff is Likely to Succeed on the Merits of Its Claims for Copyright and Trade
Dress Infringement
1. Defendants have Infringed Numerous Copyrighted Designs
Pursuant to 17 U.S.C. 106, a copyright holder has, among other rights, exclusive rights
to reproduce, prepare derivative works of, distribute, and display its registered work. See id.;
EM! April Music, Inc. v. White, 618 F. Supp. 2d 497, 504 (E.D. Va. 2009). Anyone who violates
any of the exclusive rights of a copyright owner is an infringer of the copyright. 17 U.S.C.
501(a); see EM! April Music, Inc., 618 F. Supp.2d at 504. To prove copyright infringement, "a
plaintiff must show: (1) that it [owns] a valid copyright, and (2) that the defendant copied
original elements of plaintiffs copyrighted work." EM! April Music, Inc., 618 F. Supp. 2d at 504
(internal citations omitted).
5
Sabika owns approximately 70 copyright registrations for its jewelry designs, and has
many others pending. (Schlieper Dec. at, 5-6, Ex. 2.) These designs are the original creations
of Sabika's resident jewelry designer, Alexandra Mayr-Gracik, and they have achieved starling
success in the market place. Indeed, Sabika, formed by the Mayr family in 2001, has grown to
annual sales in excess of $10 million through its original designs and the marketing efforts and
the hard work of its consultants. (I d. at , 19.) Further, the accompanying Exhibit 5 to the
Schlieper Declaration sets forth page after page of comparisons between the registered Sabika
design and the corresponding infringing copy being sold by Goshen.
Thus, Defendants' continuous sale of jewelry that clearly copies Sabika's registered
copyright pieces indisputably demonstrates that Sabika has a very high probability of success on
the merits of the claim for copyright infringement. See Hotaling v. Church of Jesus Christ of
Latter Day Saints, 118 F.3d 199, 203 (4th Cir. 1997); Lasercomb America, Inc. v. Reynolds, 911
F.2d 970, 979 (4th Cir. 1990).
2. Defendant Infringe Sabika's Trade Dress
a. The Lanham Act Provides Protection of Sabika's Trade Dress
Under 43(a) of the Lanham Act (15 U.S.C. 1125(a)), the design of a product may be
protected as trade dress. See Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205, 209
(2000) (quoting 15 U.S.C. 1125(a)). To demonstrate a likelihood of success on a claim for
trade dress infringement, the moving party must show: (1) that the trade dress is non-functional;
(2) that it has acquired secondary meaning; and (3) the consuming public is likely to be
confused. See Fiji Water Co., LLC v. Fiji Mineral Water USA, LLC., 741 F. Supp. 2d 1165,
1172 (C.D. Cal. 2010).
6
Protectable trade dress consists of discrete elements that make up the "total image of a
product and may include features such as size, shape, color, color combinations, texture or
graphics." !d. at 1172 (quoting Int'l Jensen, Inc. v. Metrosound USA., Inc., 4 F.3d 819, 822
(9th Cir. 1993)). The trade dress must not be functional. See id.; see also Cosmos Jewelry Ltd.
v. Po Sun Han Co., 470 F. Supp. 2d 1072, 1085 (C.D. Cal. 2006), aff'd, 2009 WL766517 (9th
Cir. 2009) (use of yellow gold with a sand blasted matte finish on the petals and highly polished
shiny edge give "a subjectively aesthetic, rather than utilitarian advantage" with consumers).
Here, Sabika's trade dress is undisputedly nonfunctional. It is based entirely on aesthetic
elements that serve to identify Sabika as its source, most notably the colorful and elegant
Swarovski crystals mounted on specific colored cup chains. The Sabika necklaces, chokers,
earrings, and bracelets are all handmade and assembled by European artisans at considerably
more cost than other methods of jewelry manufacture. (Schlieper Dec. at, 18.) The Swarovski
crystals are of the higher quality and appearance than usually found in other costume jewelry,
giving a more refined, more distinctive look to Sabika jewelry. Swarovski offers different grades
of crystals each priced according to the level of quality. Sabika has a good relationship with
Swarovski and uses only the highest grade of crystal available. (McNeil Dec. at ,, 14-15,
attached hereto as Exhibit D.) Moreover, abundant alternative designs are available, so
protecting the exclusivity of Sabika's trade dress will not hinder competition. (Schlieper Dec. at
, 18.) Also, the design decisions underlying Sabika's designs were made for aesthetic reasons
and not because they were the only, the cheapest, or the most efficient manner of manufacture.
See Fiji Water, 741 F. Supp. 2d at 1190 (citing Clicks Billiards, Inc. v. Sixshooters, Inc., 251 F.
3d 1252, 1259 (9th Cir. 2001) ("We focus not on the individual elements, but rather on the
overall visceral impression that the combination and arrangement of those elements create.")).
7
Sabika's color combinations are well known and recognizable to its customer base.
Defendants continue to reproduce the same color combinations. Such products are copied from
Sabika's own catalog and are clearly based on Sabika designs to which Defendants have access.
Their customers place orders for items made by Defendants directly from the Sabika catalogs
that Defendants show them. (Mulkey Dec. at ,-r 8, attached hereto as Exhibit E; McNeil Dec. at
,-r 17.) A more brazen manner of copyright and trade dress infringement would be hard to
1magme.
So, here, where there are innumerable ways to make a necklace, choker, or bracelet, there
is no basis for concluding that Sabika's designs are functional. Defendants have chosen to
mimic Sabika not for functional reasons, but entirely because they wish to trade on Sabika's
well-known and sought after look and appearance. Functional features of a product are those
which are "essential to the use or purpose of the article or ... affect the cost or quality of the
articles that is, if exclusive use of the feature[s] would put competitors at a significant non-
reputation related disadvantage." Traffix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23,
32 (2001) (quoting Qualitex Co. v. Jacobson Prods., 514 U.S. 159, 165 (1995)). Defendants
cannot be heard to argue that they need to make jewelry exactly as Sabika does for functional
reasons. As such there is no basis for concluding that the Sabika trade dress is functional.
b. Sabika' s Trade Dress Indisputably Has Acquired
Secondary Meaning
Secondary meaning is established when a plaintiff shows that "in the minds of the public,
the primary significance of a product feature or term is to identify the source of the product
rather than the product itself." Inwood Labs, Inc. v. Ives Labs, Inc., 456 U.S. 844, 851 n.11
( 1982) (internal citations omitted). Courts determine secondary meaning by weighing a number
of factors: (1) "the length or exclusivity of use of a mark," (2) "the size or prominence of
8
plaintiffs' enterprise," (3) "the existence of substantial advertising by plaintiff," (4) "the
product's established place in the market," and (5) "proof of intentional copying." J McCarthy,
McCarthy on Trademarks 15:30. "The secondary meaning analysis is primarily a subjective one,
looking into the minds of potential customers." !d. (citing Boston Athletic Ass'n v. Sullivan, 867
F.2d 22, 32 n.9 (1st Cir.1989); President & Trustees of Colby College v. Colby College-New
Hampshire, 508 F.2d 804, 809 (1st Cir. 1975)).
Sabika's jewelry designs have secondary meaning because Sabika has used its trade
dress exclusively and extensively for twelve years. (Schlieper Dec. at ,-r 1.) In these twelve
years, Sabika has established consumer recognition by promoting its trade dress though hundreds
of consultants, "Fall/Winter" and "Spring/Summer" catalogs, and by investing heavily in and
constantly updating and improving its website. (!d.) As a result, Sabika has received widespread
publicity and recognition by the public and in the media. (!d. at ,-r,-r 11, 20.) Sabika's jewelry
designs are readily recognizable by consumers as Sabika jewelry. (!d. at ,-r 18.) Equally
important, Defendants' slavish copying of numerous Sabika designs and the disclaimer on their
website demonstrate their intentional copying and provide further proof of the secondary
meaning of Sabika's trade dress. It is indisputable, therefore, that Sabika has protectable trade
dress complete with significant secondary meaning.
c. Defendants Unauthorized Copying is Likely to Cause Confusion
Once trade dress rights have been established, proving infringement requires a showing
that defendant's similar trade dress is likely to cause confusion as to the product's source. See
Yankee Candle Co., Inc. v. Bridgewater Candle Co., LLC, 259 F.3d 25, 38 (1st Cir. 2001). To
determine likelihood of confusion, the Fourth Circuit has identified the following nonexclusive
factors:
9
(1) the strength or distinctiveness of the plaintiffs mark;
(2) the similarity ofthe two marks;
(3) the similarity ofthe goods or services the marks identify;
( 4) the similarity of the facilities the two parties use in their businesses;
(5) the similarity of the advertising used by the two parties;
( 6) the defendant's intent; and
(7) actual confusion.
Bros. ofWheel MC. Executive Council, Inc. v. Mollohan, 2012 WL 5511726 at *29 (S.D.W. Va.
Nov. 14, 2012) (citing Louis Vuitton Malletier SA. v. Haute Diggity Dog, LLC, 507 F.3d 252,
259, 260-61 (4th Cir. 2007)), appeal dismissed, 2013 WL 1679440 (4th Cir. Apr. 18, 2013).
Although not all of the factors must be satisfied, actual confusion is "often paramount in the
likelihood of confusion analysis." !d.
The likelihood of confusion between Sabika's trade dress and Defendants' jewelry
designs is unmistakable. First, Sabika's trade dress is strong due to the acquired distinctiveness
from Sabika's longstanding sale and extensive promotion of its unique trade dress. Defendants'
designs are so similar as to be undistinguishable, which bears on both the similarity of the marks
and Defendants' intent. Defendants admit as much by posting disclaimers on their website in a
transparent attempt to trade on Sabika's distinctive trade dress. Second, Defendants have begun
using similar "facilities" to sell imitative jewelry: they are also selling their jewelry at home
parties through "consultants," a blatant imitation of Sabika's sales methods.
Both parties rely heavily on their website for promotion, another factor that points,
toward likelihood of confusion. Further, the postings on Defendants Facebook page captured by
Sabika demonstrate that the public is confused about the origin or sponsorship of Defendants'
jewelry. (Schlieper Dec. at ,-r,-r 21-22.) Defendants' intent is clear: to trade on the recognition of
Sabika's designs. (!d.) There have been instances of actual confusion: a woman who was given
a gift necklace, which she proudly showed off as being by Sabika, later found out that it was
10
actually a cheap knock-off by Goshen. (Ratliff Dec. a t ~ 11, attached hereto as Exhibit F.) Each
of the factors set forth by the Fourth Circuit points in favor of finding a likelihood of confusion.
As noted above, actual confusion, when it occurs, helps tip the balance decisively in favor of the
involving party. Plaintiff has amply demonstrated that the consuming public is likely to confuse
Defendants products as emanating from or sponsored by Sabika. Accordingly, Defendants
should be enjoined from further trade dress infringement forthwith.
C. Sabika Will Be Irreparably Harmed Absent Injunctive Relief
Sabika is presently suffering and will continue to suffer irreparable harm unless this
preliminary injunction is granted. Sabika has labored hard and long to establish its brand and its
reputation for quality in West Virginia and Virginia, among other places. Defendants are
engaging in on-going sales and advertisement of jewelry identical or nearly identical to Sabika's
jewelry. They are located in the heart of Sabika's customer base. They divert customers with
inferior quality goods bearing cheaper prices. The quality of the metals used by Defendants is
not as high as the quality of metals used by Sabika. (Ratliff Dec. at ~ 8; Mulkey Dec. at ~ 1 0;
McNeil Dec. a t ~ ~ 12-13.)
The same customers might have otherwise bought Sabika's jewelry. One customer
confessed that she had bought from Defendants because she wanted to buy a Sabika necklace,
but her husband had been laid off; as she could not afford Sabika, the customer bought the
cheaper jewelry instead. (Ratliff Dec. a t ~ 13.)
Defendants are clearly offering a lower quality product. Jewelry has broken or led to
infections, and Defendants offer no warranty or refund to those dissatisfied customers. (McNeil
Dec. a t ~ ~ 11-12.) Sabika cannot control the quality of Defendants' products, and dissatisfied
11
consumers may attribute their disapproval to Sabika. If Defendants' chains break or their
crystals crack or fall out, it may reflect adversely on Sabika's reputation.
Since 2001, Sabika has invested heavily in its jewelry lines by creating unique designs,
many pieces of which are the subject of copyright registrations or applications, and has
continuously used its trade dress, which has now become distinct and famous. Furthermore,
Sabika has built up and continues to build its strong reputation for selling unique, high-quality
jewelry products through a sales method which employs hundreds of consultants throughout 37
states. These consultants hold parties and distribute catalogs to build the Sabika brand. The
continued sale of Defendants' goods, which are indisputably infringing, injure Sabika's
reputation and damage the goodwill that Sabika has invested so heavily to create. Loyal
customers of Sabika who originally bought Sabika's jewelry because it was unique have stated
that they no longer feel the design is unique because there are so many cheap knock-offs
available. (Ratliff Dec. a t ~ 20.)
Thus, Defendants' actions not only directly infringe upon Sabika's copyrights and trade
dress, they are irreparably harming Sabika's goodwill and reputation. See SunEarth, Inc. v. Sun
Earth Solar Power Co., Ltd., 846 F. Supp.2d 1063, 1083 (N.D.Ca. 2012) (recognizing "that the
potential loss of goodwill or the loss of the ability to control one's reputation may constitute
irreparable harm for purposes of preliminary injunctive relief." (internal citations and quotations
omitted)); see also Fred Hutchinson Cancer Research Ctr. v. BioPet Vet Lab Inc., 768 F.
Supp.2d 872, 881 (E.D. Va 2011) ("[W]hen the failure to grant preliminary relief creates the
possibility of permanent loss of customers to a competitor or the loss of goodwill, the irreparable
injury prong is satisfied" (citing Multi-Channel TV Cable Co. v. Charlottesville Quality Cable
Operating Co., 22 F.3d 546, 552 (4th Cir.1994)); Meineke Car Care Centers, Inc. v. Catton,
12
2010 WL 2572875, at *2 (W.D.N.C. 2010) ("[Plaintiff] will be harmed in the form of damage to
its goodwill and reputation with consumers, loss of customers, and corresponding lost sales.
Thus, [plaintiff] satisfies the irreparable harm element needed to obtain a preliminary junction.").
Sabika and over 600 independent consultants have suffered and continue to suffer loss of
sales, profits, clientele, reputation, goodwill, and other losses that are impossible to calculate and
that will continue during the pendency of this action unless enjoined by the Court. Therefore,
Sabika will continue to be irreparably harmed unless this preliminary injunction is issued.
D. The Balance of Hardship or Equities Tips Sharply in Favor of Sabika
The injuries to Sabika outweigh any harm Defendants might suffer in granting this
motion for preliminary injunction. First, Defendants knowingly infringed on Sabika's
copyrighted jewelry. See SunEarth, Inc., 846 F. Supp.2d at 1084 (citing Cadence Designs Sys. v.
Avant! Corp., 125 F.3d 824, 829 (9th Cir. 1997) ("[A] defendant who knowingly infringes
another's copyright cannot complain of the harm that will befall it when properly forced to desist
from its infringing activities[.]"). Second, Sabika's motion requests only that the Defendants
stop selling Sabika's copyrighted designs, as well as any designs that infringe its protected trade
dress. Defendants are free to sell dissimilar jewelry designs. Thus, any assertion by Defendants
that Sabika seeks to put them out of business is false. Sabika has no objection to fair competition
or the sale of non-infringing jewelry by Defendants. Defendants can sell any item of jewelry
they wish so long as it avoids Sabika's protected rights.
Moreover, Sabika's irreparable harm to its customer base and reputation, as well as its
carefully built brand recognition, all outweigh any alleged inconvenience Defendants may face if
Defendants are enjoined from further infringing acts. Defendants chose to embark on a path that
involved slavish copying of copyrighted designs and protectable trade dress. Defendants chose
13
to offer Sabika catalogs as sales material to their own customers. (Mulkey Dec. a t ~ 8; McNeil
Dec. a t ~ 17.) Having chosen this nefarious path, Defendants cannot now be heard to complain
of the alleged hardship or threat to their start up business. Fred Hutchinson, 768 F. Supp.2d at
8 82 ("[D]efendants' harm [as a small business] does not offset the elements of irreparable harm
to the plaintiffs; ... the balance of equities weighs in plaintiffs' favor because plaintiffs have an
established reputation and history of offering the products to [customers] that would be adversely
impacted by Defendants' sale of a potentially lesser product").
Sabika's irreparable harm from the obvious and intentional infringement of its copyrights
and trade dress, loss of sales, consumer confusion, damage to its highly regarded reputation, and
loss of its goodwill far outweigh any inconvenience Defendants may experience in creating
alternative non-infringing designs. Therefore, the balance of hardship and equities clearly tips in
Sabika's favor.
E. The Public Interest Favors Enjoining Defendants Infringement
Preventing customer confusion of similar products serves the public interest. In fact, "the
Lanham Act is at heart a consumer protection statute." See SunEarth, Inc., 846 F. Supp.2d at
1084 (citing TrajjicSchool.com v. Edriver Inc., 653 F.3d 820, 827 (9th Cir. 2011)). Protecting
Sabika's copyrights undisputed by serves the public interest by protecting and encouraging
original creations. See Janel Russell Designs, Inc. v. Mendelson & Associates, Inc., 114 F.
Supp.2d 856, 863 (D. Minn. 2000) (granting plaintiff's motion for a preliminary injunction
protecting its copyrighted jewelry design because "the public interest is always served by
upholding copyrights and thereby encouraging individual effort and creativity."). In addition,
failure to police copyright infringement would encourage dishonesty in business, contrary to the
public interest. See Graphic Design Marketing, Inc. v. Xtreme Enterprises, Inc., 772 F. Supp.2d
14
1029, 1035 (20 11) ("[T]he public interest will be furthered by affording meaningful protection to
its copyright rights and protection from ... market confusion.").
Customers who believe that they are buying Sabika products or that they are are
purchasing products which are of the same quality for a fraction of the cost have ended up with
no sales receipts, broken jewelry, and, in at least one case, a serious infection from wearing
Defendants' earrings. (Ratliff Dec. a t ~ 11; McNeil Dec. a t ~ ~ 11-12.) Sabika's unique sales
model of recruiting local consultants to serve within their own communities provides the
opportunity for individuals to start and prosper from a local business. Defendants' blatant
infringing activities threaten that local business. !d.
The public has no interest in permitting blatant copyright and trade dress infringement.
On the other hand, strong enforcement of the law of copyright and trade dress protects the public
and fosters honesty in the market place. Thus, public interest favors a preliminary injunction in
this matter.
CONCLUSION
Based upon the facts and authorities set forth above and in the accompanymg
declarations and exhibits thereto, Plaintiff Sabika respectfully submits that it has demonstrated
that the Court should issue an Order preliminarily enjoining Defendants from continued
copyright and trade dress infringement during the pendency of this action.
15
SABIKA, INC.
By Counsel
Is/Russell D. Jessee
Russell D. Jessee
Russell.jessee@steptoe-johnson.com
W.Va. Bar No. 10020
Lauren. palmer@ steptoe-johnson. com
W.Va. BarNo. 11964
P.O. Box 1588
(304) 353-8000 (telephone)
(304) 353-8180 (facsimile)
and
Maxim H. Waldbaum (pro hac vice)
M waldbaum@evw.com
Robert D. Katz (pro hac vice)
Rkatz@evw.com
EATON & VAN WINKLE LLP
3 Park Ave., 16th Floor
New York, NY 10016
Tel: 212.779.9910
Fax: 212.779.9928
Counsel to Plaintif!Sabika, Inc.
16
SABIKA, INC.,
Plaintiff,
v.
BLUEFIELD DIVISION
MICHELLE OXLEY; and
SHERAINE GUNNOE,
Defendants.
CERTIFICATE OF SERVICE
I hereby certify that on June 25, 2013, a copy of the foregoing "Plaintiff Sabika, Inc.'s
Memorandum in Support of its Motion for Preliminary Injunction" was filed electronically.
Notice of this filing will be sent by operation of the Court's electronic filing system to all parties
indicated on the electronic filing receipt. There are no unrepresented parties.
Is/ Russell D. Jessee
Russell D. Jessee
russell. j essee@steptoe-j ohnson.com
W.Va. Bar No. 10020
P.O. Box 1588
(304) 353-8000 (telephone)
(304) 353-8180 (facsimile)
17

Sabika v. Goshen - Motion For PI & Brief

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Case 1:13-cv-00848 Document 33 Filed 06/25/13 Page 1 of 3 PageID #: 125

IN THE UNITED STATES DISTRICT COURT

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