Free Response in Opposition to Motion - District Court of California - California

Case 3:08-cv-00397-H-AJB

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Filed 03/17/2008

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Stuart E. Jones, (State Bar No 104566) WRIGHT, ROBINSON, OSTHIMER & TATUM 44 Montgomery Street, 18th Floor San Francisco, California 94104-4705 Telephone: (415) 391-7111 Telefax: (415) 391-8766 Attorneys for Defendant Kim Logue, an individual doing business as About Attitude

IN THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF CALIFORNIA

KIPPYS, INC., a California Corporation, Plaintiff, v. ABOUT ATTITUDE, an entity of unknown form, 13817 Village Mill Drive, Suite 200, Midlothian, Virginia; KIM LOGUE, an individual, and DOES 1 through 50, inclusive, Defendant.

Case No.: 08-CV-0397 H DECLARATION OF KIM LOGUE IN OPPOSITION TO PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION Date: Time: Dept: Judge: March 24, 2008 10:00 a.m. 13 Marilyn L. Huff

I Kim Logue declare: 1. I am a resident of the Commonwealth of Virginia and I am the owner of About

Attitude, a sole proprietorship. I am also the owner of the domain name AboutAttitude.com. I buy and sell women's fashion accessories such as jewelry, handbags, belts and other items. All of my products are bought either at trade shows or on-line. I sell all of my products online. I do not maintain a warehouse for my products. I rent a small one-room office where I maintain a limited stock or supply of certain products. I currently have only one rhinestone belt in my office. 2. On December 19, 2007, I was contacted by Joyce Huang, who is a freelance

author regarding an upcoming article entitled "I Really Love My..." in the March 2008 edition of
DECLARATION OF KIM LOGUE IN OPPOSITION TO PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

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People Magazine. Ms. Huang sent me an E-mail and some attached photos or J-Peg images. One of the photos depicted Gretchen Wilson who was wearing a belt. Ms. Huang asked me if I could procure a belt like the one being worn by Gretchen Wilson. A copy of the E-mail from Ms. Huang is attached hereto, marked Exhibit 1. 3. Shortly after I was contacted by Ms. Huang, I performed a search for products that

looked like Gretchen Wilson's belt. I conducted a search on eBay's website and I found a belt that was similar to the belt that was depicted in the photo of Gretchen Wilson. A copy of the eBay web page that depicts the belt is attached hereto, marked Exhibit 2. A link to the eBay web page that depicts the belt is located at:
http://cgi.ebay.com/ws/eBayISAPI.dll?ViewItem&item=220204204967&ih=012&category=45214.

4.

Once I had located a source of belts for sale, I contacted Ms. Huang and told her

that I had located a supplier of belts that were similar to the belt that was depicted in the photo of Gretchen Wilson. The belts that I located on eBay are not exact copies of the belt that was depicted in the photo of Gretchen Wilson. I forwarded a copy of the image that was depicted on eBay along with a link to my website http://www.aboutattitude.com to Ms. Huang. 5. Ms. Huang and People Magazine did not pay me any sum of money for my efforts

in connection with the March 2008 article in People Magazine that is depicted in Exhibit D of Plaintiff's Application for a TRO. 6. I did not pay any sum of money to Ms. Huang or People Magazine in exchange

for the placement of my firm's contact information in the March 2008 article in People Magazine that is depicted in Exhibit D of Plaintiff's Application for a TRO. 7. I did not draft, prepare, review or approve any portion of the March 2008 article in

People Magazine that is depicted in Exhibit D of Plaintiff's Application for a TRO. 8. The March 2008 article in People Magazine that is depicted in Exhibit D of

Plaintiff's Application for a TRO contains the text "Kippys Belt" and an arrow on the photo of Gretchen Wilson. I did not take the photograph of Ms. Wilson. I did not apply the text "Kippys Belt" to the photograph and I did not place the arrow on the photograph. I did not prepare, review or approve of the photographs of Ms. Wilson which are depicted in the March 2008
DECLARATION OF KIM LOGUE IN OPPOSITION TO PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Case 3:08-cv-00397-H-AJB

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article in People Magazine as shown in Exhibit D of Plaintiff's Application for a TRO 9. I have never used the words "Kippys" or "Kippys Belt" in connection with any of

my business activities. 10. activities. 11. 12. of this lawsuit. 13. Inc. 14. I have never sold any merchandise that was represented to be a copy of I have never sold any merchandise that was represented to be a product of Kippys, I have never made a copy of `Kippys Belt" which is the subject of this lawsuit. I have never asked anyone to make a copy of "Kippys Belt" which is the subject I have never used the trademark "Kippys" in connection with my business

merchandise that is sold by Kippys, Inc. 15. I have removed the rhinestone belt image and the cover page from the March 2008

edition of People Magazine from my website. I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

DATED: March 17, 2008

Respectfully submitted, By: /s/ Kim Logue Kim Logue

DECLARATION OF KIM LOGUE IN OPPOSITION TO PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION

Case 3:08-cv-00397-H-AJB

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CERTIFICATE OF FILING

I hereby certify that on March 17, 2008, I electronically filed the foregoing with the Clerk of the Court using CM/ECF system which will send a notification of electronic filing to the following CM/ECF Participants and served upon all counsel of record by placing a copy of the same in the United States Mail, postage prepaid, and sent to their last known address as follows: Joseph A. Yanny, Esq. Raphael B. Emanuel, Esq. Kim D. Ashley, Esq. Yanny & Smith 1801 Century Park East, 23rd Floor Los Angeles, California 90067 Telephone: (310) 551-2966 Facsimile: (310) 551-1949 Attorneys for Plaintiff Kippys, Inc.

Respectfully submitted, By: /s/ Stuart E. Jones Stuart Jones Wright, Robinson, Osthimer & Tatum 44 Montgomery St., 18th Floor San Francisco, CA 94104 (415) 391-7111, Fax (415) 391-8766 [email protected]

DECLARATION OF KIM LOGUE IN OPPOSITION TO PLAINTIFF'S MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION