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Gray Goods - Internet Library of Law and Court Decisions - Updated March 5, 2008Quick HitsMerle Norman Cosmetics, Inc. v. Joyce Labarbera and Jane Doe
Case No. 07-60811-CV-Cohn (S.D. Fla, August 3, 2007)
Court denies defendant Labarbera’s motion to dismiss tortuous interference with contract, civil conspiracy and deceptive and unfair trade practice claims advanced by plaintiff Merle Norman Cosmetics as a result of defendant’s sale of plaintiff’s cosmetic products on the Internet. Plaintiff claimed that defendant obtained the products at issue from a studio – named here as Jane Doe – which by contract was prohibited from reselling Merle Norman Cosmetics on the Internet. Defendant denied that allegation, claiming she obtained the cosmetics from another source. Plaintiff “conceded … that if Labarbera’s source is a flea market, than she can make the sales in question without committing a tort.” However, for the purpose of the instant motion, the Court accepted plaintiff’s contentions as to the source of the goods defendant sold. Defendant argued that plaintiff’s claims were barred by application of the First Sale doctrine which, inter alia, permits a party who has lawfully acquired a copyrighted work to resell it free from claims of copyright infringement. The Court held that this doctrine had not been extended to tort claims such as that at bar, and accordingly denied defendant’s motion. Said the Court “the point at this early stage of this litigation is that the First Sale Doctrine has not been accepted as a complete defense to tortuous interference and civil conspiracy claims. Therefore, the Court will deny the motion to dismiss …”. |
