By  on November 11, 2005

NEW YORK — Treat Inc., the maker of personal care products resembling baked goods sold in specialty and department stores, has been awarded a default judgment in a trademark and trade dress infringement suit against Jessica Simpson's Dessert Treat line, a cosmetics line sold in the mass and specialty distribution channels. Representation for Dessert Beauty was not present for the case, hence the default judgement.

The two law firms representing Treat and Dessert Beauty, The DuBoff Law Group, LLC in Portland and Cowan, Leibowitz and Latman in New York, respectively, both said they have discussed setting aside the default judgement, but attorney Marisa James of the firm for Treat said "nothing had been signed on the dotted line" as of yet.

Arlana Cohen, a partner with CLL, said as soon as her firm learned of the default judgment, "which was on Monday, we prepared an emergency motion to set aside the default on the grounds that we believe there is absolutely no infringement and that the default was wrongly granted." Cohen suggested that letters alerting Dessert Beauty, the makers of Dessert Treat, of the complaint must have been sent by "carrier pigeon" because "we did not know this was going on." Dessert Beauty has headquarters in Barbados with North American offices in Ottawa, Ontario.

Dessert Treats launched in the mass market earlier this year to much fanfare — considering the hype the Jessica Simpson name generates. According to Information Resources Inc., the brand has generated more than $10.6 million in sales in food, drug and mass channels for the 52-week period ended Oct. 2. Sales do not include Wal-Mart. While Dessert Treats is sold in thousands of mass market doors, the business is small compared to its prestige business, which as of February tallied $55 million in sales.

"They would be wounded but it won't be fatal," said beauty industry consultant Allan Mottus of Dessert Beauty if it were to lose its case in court. "But they are very clever people. The whole idea of taste and sweet is a new category for both younger and hip female consumers."

According to a judgment on Oct. 12 by U.S. District Court Judge Ancer L. Haggerty in the U.S. District Court District of Oregon, Dessert Beauty, the maker of Dessert Treats, has been ordered to cease distributing its beauty line and is "restrained and enjoined from engaging in any further acts of infringement, including but not limited to use of the mark Dessert Treats in connection with bath and body care products."The judgment orders Dessert Beauty to "deliver to Treat Inc. all infringing items made, sold or distributed by Dessert Beauty ... and to account to Treat Inc. for all its gains, profits and advantages obtained as a result of its infringement to Treat's trademark and trade dress."

Marnie Massie, founder of Treat, a three-year-old, $1 million company based in Portland, filed a complaint on June 22 after she found out through a friend and business acquaintance that buyers at Macy's and Sephora were confusing her products with Dessert Treats.

"They thought they already sold Treats when my friend, as a favor, told them about my line. But they were talking about Dessert Treats," Massie said.

Cohen said while "they look completely different and there's no likelihood of confusion," even if Treats won, "we simply change the packaging." Cohen added that "we intend to counter-sue for any losses or damage to our client's brand caused by Treat Inc.'s specious claims."

In March 2005 Massie began seeking out the Dessert Treats line and found that its bath and body care products were "confusingly similar to Treat's registered mark, Treat." It also appeared that Dessert Beauty's products, like hers, featured the fragrances of various food items. Subsequently, the complaint alleged trademark and trade dress infringement and sought a preliminary and permanent injunction.

"Some of our unique fragrances, like banana pudding and bubble gum, she happened to have those flavors. There were so many that were identical," Massie said in an interview with WWD.

The complaint said "Dessert Beauty has consciously and deliberately sought to capitalize on the distinctive quality and secondary meaning established by Treat, and has intended to capitalize upon profit by the consumer confusion it has created."

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