MIAMI (CN) — The attorney for a British cosmetic products company accusing the Kardashian sisters of trademark infringement told the 11th Circuit Thursday that his client has statutory right to sue for its losses.
The hearing before a three-judge panel stems from a lawsuit filed in 2014 by Kroma Makeup EU LLC, which had a trademark licensee agreement with By Lee Tillett Inc. for exclusivity in the United Kingdom and Europe.
While the Kroma cosmetics were being sold in the U.S. and Europe, the Kardashians partnered with Boldface Licensing + Branding Inc. to create a makeup line called Khroma.
Boldface and By Lee Tillett eventually resolved their trademark squabble, but the California settlement left out Kroma Makeup EU.
Kroma then filed its trademark infringement complaint in the Middle District of Florida, claiming that Boldface and the Kardashians launched their cosmetics line despite knowledge of the Kroma mark.
The company brought its appeal to the 11th Circuit on Thursday, in a special seating of the federal appeals court in Miami, after a federal judge sided with the Karadashians at summary judgment.
Jared Beck from the Miami firm Beck & Lee Trial Lawyers told the panel this morning that the lower court erred in finding that Kroma lacks standing.
“We believe we have strong collateral arguments,” said Beck.
Beck claimed that a contract can’t wave the right of a licensee to sue, unless there is “clear language” that expresses that.
U.S. Circuit Judge Stanley Marcus appeared unconvinced, however, saying that the safer course was to have the trial court certify the claims in question.
“It’s important to know whether the court has the power to entertain the case, if it doesn’t then a 54 (b) certification needs to be sought,” Marcus said.
A 54 (b) certification explains that a final judgment on less than all claims in a case may be entered only if “there is no just reason for delay.”
Jonathan Steinsapir, an attorney for the Kardashians with the Santa Monica firm Kinsella Weitzman, argued that the contract needs to be interpreted as a whole.
“The trademark always remains the exclusive property of Tillett,” Steinsapir said.
“The licensor is the owner of all the good will and the mark,” he added.
The panel did not indicate when a ruling on the case will be issued.
Beck said he did not know when the 11th Circuit will issue its decision, but said “that in light of the agreement’s plain language and the Lanham Act,” Kroma has to recover the damages caused by the Kardashians’ trademark infringement.
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