Byline: Julie L. Belcove

NEW YORK — With a court victory against one retailer in hand, Parfums Givenchy is now going after a horde of stores, including Sears, Roebuck, Kmart and Wal-Mart, that have been selling the company’s fragrances without authorization.
Robert Brady, president of Givenchy, said the company filed suit Thursday in Central District Court in Los Angeles against 12 stores as part on an ongoing effort to stamp out the gray market in imports. By some estimates, the market for diverted scents could be as big as $1 billion annually, or 25 percent of the prestige fragrance business.
In addition to the big three mass merchants, the suit names Marshall’s, Loehmann’s, Drug Emporium, DPS Inc., Colors & Scents, Perfumania, Magnifique Perfumes & Cosmetics, Carolyn’s Colognes and Perfume Land Inc.
“They’ve all been distributing on an unauthorized basis either Amarige or Ysatis,” Brady said in an interview Thursday. He noted that the company has now copyrighted the Ysatis packaging as well as
the Amarige box.
Givenchy copyrighted the Amarige packaging — rather than merely acquiring a trademark for the brand — because copyright law offers more protection against unauthorized imports.
The firm then sued to prevent Drug Emporium, a chain based in Powell, Ohio, from selling Amarige, which had been imported without Givenchy’s consent. The Central District Court, which also will hear the new case, and San Francisco’s Ninth Circuit Court of Appeals ruled in Givenchy’s favor, granting a permanent injunction against Drug Emporium.
Drug Emporium is continuing the appeals process. R. Lawrence Bonner, the chain’s lawyer, has said he’ll try to take the case to the Supreme Court.
Meanwhile, other fragrance makers, including Boucheron and Lancaster, have followed Givenchy’s lead by patenting and copyrighting their packaging.
Brady made it clear that the Drug Emporium case was only the beginning of Givenchy’s strategy to “vigorously pursue” diverters.
“Frankly, I’m sick and tired of reading the other side’s response, which is always about protecting the consumer and having something to do with price,” Brady said. “It’s not about price. It’s about them free-riding.
“We spend a great deal of time, effort and money producing the products and the images,” he continued. “I want them to stop selling my merchandise.”
Brady argued that the unauthorized importation and sale actually hurts the consumer. He said he receives numerous letters every week from consumers who have bought Givenchy fragrances from unauthorized dealers and are dissatisfied with the product.
“If it sits in the hold of a ship in Saudi Arabia long enough, the nature of it is going to change,” Brady explained, referring to the circuitous route diverted products may take from Europe on the way to outlets in the U.S.
Brady said consumers also complain about buying miniature bottles that were meant to be given away free as samples and of buying watered-down display bottles.
Although Curtis Bradley, Givenchy’s lawyer, said the company is not currently pursuing cases in any other jurisdictions, he acknowledged that the list of defendants might be only the tip of the iceberg.
“There may be other retailers involved in this practice,” he said, explaining that the defendants were selected after Givenchy products were purchased in their stores.
Brady called the defendants “the major culprits” in the practice.
Reached Thursday, spokeswomen for two of the defendants, Kmart and Marshall’s, declined comment until their lawyers could review the complaint.
Bradley said he plans to move for a hearing to be held within “a month or so” asking for a preliminary injunction.
Givenchy is also seeking a permanent injunction and will ask the court to impound the merchandise and award attorneys’ fees and damages.
Bradley said the damages could be determined either by the harm caused to the company’s reputation or by the profits the retailers earned by selling the merchandise. He noted that Givenchy could also ask for “statutory damages,” an amount left to the court’s discretion.

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