26 - Oppn re PI

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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
CASE NO. 3:12-CV-5072 MMC
sf-3216486
WESLEY E. OVERSON (CA SBN 154737)
[email protected]
JENNIFER LEE TAYLOR (CA SBN 161368)
[email protected]
NATHAN B. SABRI (CA SBN 252216)
[email protected]
JULIA D. KRIPKE (CA SBN 267436)
[email protected]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: 415.268.7000
Facsimile: 415.268.7522
Attorneys for Defendants
RESTORATION HARDWARE, INC. and GARY FRIEDMAN


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
EMECO INDUSTRIES, INC.,
Plaintiff,
v.
RESTORATION HARDWARE, INC., GARY
FRIEDMAN, and Does 1-10,
Defendants.
Case No. 3:12-cv-5072 MMC
DEFENDANTS RESTORATION
HARDWARE AND GARY
FRIEDMAN’S OPPOSITION TO
PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION
Date: Dec. 14, 2012
Time: 9:00 a.m.
Ctrm: 7

Hon. Maxine M. Chesney
Case3:12-cv-05072-MMC Document26 Filed11/16/12 Page1 of 33
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TABLE OF CONTENTS

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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
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INTRODUCTION .......................................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................. 2
ARGUMENT .................................................................................................................................. 6
I. PLAINTIFF CANNOT DEMONSTRATE LIKELIHOOD OF SUCCESS ...................... 6
A. Plaintiff’s Asserted Rights Are Not Protectable. .................................................... 7
1. Plaintiff’s THE NAVY CHAIR mark and chair trade dress are
generic. ........................................................................................................ 8
a. Plaintiff’s THE NAVY CHAIR mark is generic. ........................... 8
b. Plaintiff’s trade dress is generic. ................................................... 10
c. Plaintiff’s trade dress is functional. ............................................... 11
B. Plaintiff Has Not Shown a Likelihood of Confusion. ........................................... 14
1. Key Sleekcraft factors establish that confusion between Plaintiff’s
trade dress and trademarks and Restoration Hardware’s chairs is not
likely. ......................................................................................................... 15
a. Plaintiff’s trade dress and trademarks are very weak.................... 15
b. There is no evidence of significant actual confusion. ................... 16
c. The parties use different trade channels. ....................................... 17
d. Consumers exercise a high degree of care. ................................... 18
e. Restoration Hardware did not intend to cause confusion
with Plaintiff’s chairs. ................................................................... 18
f. The word marks are not sufficiently similar to cause
confusion ....................................................................................... 18
2. Defendants’ accused phrases are protected by the defense of fair
use. ............................................................................................................ 19
II. PLAINTIFF CANNOT DEMONSTRATE THAT IT IS LIKELY TO SUFFER
IRREPARABLE HARM WITHOUT AN INJUNCTION ............................................... 21
III. THE BALANCE OF HARDSHIPS DOES NOT FAVOR ISSUANCE OF A
PRELIMINARY INJUNCTION ....................................................................................... 23
IV. THE PUBLIC INTEREST DOES NOT REQUIRE A PRELIMINARY
INJUNCTION ................................................................................................................... 25
CONCLUSION ............................................................................................................................. 25
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TABLE OF AUTHORITIES
Page(s)
CASES
Advertise.com, Inc. v. AOL Adver., Inc.,
616 F.3d 974 (9th Cir. 2010) ..................................................................................................... 8
Alliance for the Wild Rockies v. Cottrell,
632 F.3d 1127 (9th Cir. 2011) ................................................................................................... 6
Am. Cyanamid Corp. v. Connaught Labs., Inc.,
800 F.2d 306, 308 (2d Cir. 1986) .............................................................................................. 8
AMF Inc. v. Sleekcraft Boats,
599 F.2d 341 (9th Cir. 1979) ................................................................................................... 14
Aria Diagnostics, Inc. v. Sequenom, Inc.,
Case No. C 11-06391 SI, 2012 U.S. Dist. LEXIS 93124 (N.D. Cal. July 5, 2012) .................. 6
Aurora World, Inc. v. TY Inc.,
719 F. Supp. 2d 1115 (C.D. Cal. 2009) .................................................................................. 25
Beats Elecs., LLC v. Fanny Wang Headphone Co.,
Case No. C-10-5680 MMC, 2011 U.S. Dist. LEXIS 2228 (N.D. Cal. Jan. 5, 2011) ............. 18
BoomerangIt, Inc. v. ID Armor, Inc.,
Case No. 5:12-cv-0920 EJD, 2012 U.S. Dist. LEXIS 86382 (N.D. Cal. June 21, 2012) ....... 21
Boston Duck Tours, LP v. Super Duck Tours, LLC,
531 F.3d 1 (1st Cir. 2008) ......................................................................................................... 8
Brookfield Commc’ns, Inc. v. West Coast Entm’t Corp.,
174 F.3d 1036 (9th Cir. 1999) ....................................................................................... 6, 18, 21
Cairns v. Franklin Mint Co.,
24 F. Supp. 2d 1013 (C.D. Cal. 1998) .............................................................................. 16, 17
Calvin Klein Cosmetics Corp. v. Lenox Labs., Inc.,
815 F.2d 500 (8th Cir. 1987) ................................................................................................... 25
Caribbean Marine Services Co. v. Baldridge,
844 F.2d 668 (9th Cir. 1988) ................................................................................................... 22
Cazet v. Epps,
Case No. C 10-02460 JSW, 2010 U.S. Dist. LEXIS 67924 (N.D. Cal. June 11, 2010) ........... 7
Classic Foods Int’l Corp. v. Kettle Foods, Inc.,
468 F. Supp. 2d 1181 (C.D. Cal. 2007) .................................................................................... 8
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ConocoPhillips Co. v. Gonzalez,
Case No. 5:12-cv-00576-LHK, 2012 U.S. Dist. LEXIS 20972 (N.D. Cal. Feb. 17,
2012) ....................................................................................................................................... 21
Cytosport v. Vital Pharm., Inc.,
617 F. Supp. 2d 1051 (E.D. Cal. 2009) ................................................................................... 25
Disc Golf Ass’n v. Champion Discs,
158 F.3d 1002 (9th Cir. 1998) ........................................................................................... 12, 14
eBay Inc. v. MercExchange, L.L.C.,
547 U.S. 388 (2006) ................................................................................................................ 21
Elantech Devices Corp. v. Synaptics, Inc.,
Case No. C 06-1839 PVT, 2008 U.S. Dist. LEXIS 116997 (N.D. Cal. Aug. 27, 2008) .......... 6
Entrepreneur Media v. Smith,
279 F.3d 1135 (9th Cir. 2002) ...................................................................................... 14-15, 19
Fiji Water Co., LLC v. Fiji Mineral Water USA, LLC,
741 F. Supp. 2d 1165 (C.D. Cal. 2010) ............................................................................. 14-15
Filipino Yellow Pages, Inc. v. Asian Journal Publ’ns, Inc.,
198 F.3d 1143 (9th Cir. 1999) ................................................................................................... 7
First Brands Corp. v. Fred Meyer, Inc.,
809 F.2d 1378 (9th Cir. 1987) ................................................................................................. 16
Fleischer Studios, Inc. v. A.V.E.L.A., Inc.,
654 F.3d 958 (9th Cir. 2011) ..................................................................................................... 7
Fruit of the Loom, Inc. v. Girouard,
994 F.2d 1359 (9th Cir. 1993) ................................................................................................. 18
Gen. Conference Corp. of Seventh-Day Adventists v. Seventh-Day Adventists
Congregational Church,
887 F.2d 228 (9th Cir. 1989) ..................................................................................................... 7
Genovese Drug Stores v. TGC Stores,
939 F. Supp. 340 (D.N.J. 1996) .............................................................................................. 24
GMT Productions, L.P. v. Cablevision of New York City, Inc.,
816 F. Supp. 207 (S.D.N.Y. 1993) ............................................................................................ 8
Groupion, LLC v. Groupon, Inc.,
826 F. Supp. 2d 1156 (N.D. Cal. 2011) .................................................................................. 21
Groupion, LLC v. Groupon, Inc.,
859 F. Supp. 2d 1067 (N.D. Cal. 2012) .................................................................................. 19
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Henri’s Food Prods. Co. v. Kraft, Inc.,
717 F.2d 352 (7th Cir. 1983) ................................................................................................... 17
Heptagon Creations, Ltd. v. Core Grp. Mktg. LLC,
2011 U.S. Dist. LEXIS 147102 (S.D.N.Y. Dec. 22, 2011) ..................................................... 13
Herman Miller Inc. v. Alphaville Design Inc.,
Case No. C 08-03437 WHA, 2009 U.S. Dist. LEXIS 103384 (N.D. Cal. Oct. 22, 2009) ...... 15
Hypoxico Inc. v. Colorado Altitude Training LLC,
Case No. 02 Civ. 6191 (TPG), 2012 U.S. Dist. LEXIS 122830 (S.D.N.Y. Aug. 28,
2012) ....................................................................................................................................... 23
In re Capri Macaroni Corp.,
173 U.S.P.Q. 630 (T.T.A.B. 1972) ......................................................................................... 11
In re Dual-Deck Video Cassette Recorder Antitrust Litig.,
11 F.3d 1460 (9th Cir. 1993) ................................................................................................... 20
JL Bev. Co., LLC v. Beam, Inc.,
2012 U.S. Dist. LEXIS 137076 (D. Nev. Sept. 25, 2012) ................................................. 24-25
Kendall-Jackson Winery, Ltd. v. E. & J. Gallo Winery,
150 F.3d 1042 (9th Cir. 1998) ................................................................................................. 11
Koon Chun Hing Kee Soy & Sauce Factory, Ltd. v. Eastimpex,
Case No. C 04-4146 MMC, 2007 U.S. Dist. LEXIS 7880 (N.D. Cal. Feb. 2, 2007) ............. 15
KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc.,
408 F.3d 596 (9th Cir. 2005) ..................................................................................................... 7
KP Permanent Make-Up, Inc. v. Lasting Impression I, Inc.,
543 U.S. 111 (2004) ........................................................................................................... 19-20
Leatherman Tool Group, Inc. v. Coast Cutlery Co.,
823 F. Supp. 2d 1150 (D. Or. Oct. 2011) ........................................................................... 21-22
Louis Vuitton Malletier S.A. v. Haute Diggity Dog,
LLC, 507 F.3d 252 (4th Cir. 2007) ......................................................................................... 19
M2 Software, Inc. v. Madacy Entm’t,
421 F.3d 1073 (9th Cir. 2005) ................................................................................................. 17
Network Automation, Inc. v. Advanced Sys. Concepts,
638 F.3d 1137 (9th Cir. 2011) ................................................................................................. 16
New Eng. Braiding Co. v. A.W. Chesterton Co.,
970 F.2d 878 (Fed. Cir. 1992) ................................................................................................... 6
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Nichia Corp. v. Seoul Semiconductor, Ltd.,
Case No. 06-0162 MMC, 2008 U.S. Dist. LEXIS 12183 (N.D. Cal. Feb. 7, 2008) ............... 23
OG Int’l, Ltd. v. Ubisoft Entm’t,
Case No. C 11-04980 CRB, 2011 U.S. Dist. LEXIS 124020 (N.D. Cal. Oct. 26, 2011) ....... 22
Paulsson Geophysical Servs., Inc. v. Sigmar,
529 F.3d 303 (5th Cir. 2008) ................................................................................................... 22
Philip Morris USA Inc. v. Felizardo,
Case No. 03 Civ. 5891 (HB), 2004 U.S. Dist. LEXIS 11154 (S.D.N.Y. June 18, 2004) ....... 15
Phillip Morris USA Inc. v. Shalabi,
352 F. Supp. 2d 1067 (C.D. Cal. 2004) .................................................................................. 15
Qualitex Co. v. Jacobson Prods. Co.,
514 U.S. 159 (1995) ................................................................................................................ 12
Rovio Ent’mt Ltd. v. Royal Plush Toys, Inc.,
Case No. C .............................................................................................................................. 21
Rudolph Int’l, Inc. v. Realys, Inc.,
482 F.3d 1195 (9th Cir. 2007) ................................................................................................... 8
Stormans, Inc. v. Selecky,
586 F.3d 1109 (9th Cir. 2009) ................................................................................................. 22
Straumann Co. v. Lifecore Biomedical Inc.,
278 F. Supp. 2d 130 (D. Mass. 2003) ..................................................................................... 16
Stuart Spector Designs, Ltd. v. Fender Musical Instruments Corp.,
94 U.S.P.Q.2d 1549 (T.T.A.B. 2009) ..................................................................................... 11
Stuhlbarg Intl’ Sales Co., Inc. v. Brush and Co., Inc.,
240 F.3d 832 (9th Cir. 2001) ................................................................................................... 22
SunEarth, Inc. v. Sun Earth Solar Power Co.,
846 F. Supp. 2d 1063 (N.D. Cal. 2012) .................................................................................. 22
Sunrise Jewelry Mfg. Corp. v. Fred S.A.,
175 F.3d 1322 (Fed. Cir. 1999) ................................................................................................. 7
Supelco, Inc. v. Alltech Assocs.,
1986 U.S. Dist. LEXIS 21236 (E.D. Pa. 1986) ....................................................................... 24
Surfvivor Media, Inc. v. Survivor Prods.,
406 F.3d 625 (9th Cir. 2005) ................................................................................................... 17
Tempur-Pedic Int’l, Inc. v. Waste to Charity, Inc.,
Case No. 07-2015, 2007 U.S. Dist. LEXIS 11435 (W.D. Ark. Feb. 16, 2007) ...................... 22
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TrafFix Devices, Inc. v. Mktg. Displays, Inc.,
532 U.S. 23 (2001) ............................................................................................................ 12, 14
Tyco Healthcare Group LP v. Applied Med. Res. Corp.,
Case No. 9:09-cv-176, 2011 U.S. Dist. LEXIS 154686 (E.D. Tex. Sept. 23, 2011) .............. 23
Ubiquiti Networks, Inc. v. Kozumi USA Corp.,
Case No. C 12-2582 CW, 2012 U.S. Dist. LEXIS 85665 (N.D. Cal. June 20, 2012) ............ 15
Vision Sports, Inc. v. Melville Corp.,
888 F.2d 609 (9th Cir. 1989) ................................................................................................... 16
Walker & Zanger, Inc. v. Paragon Indus., Inc.,
465 F. Supp. 2d 956 (N.D. Cal. 2006) .............................................................................. 10, 12
Winter v. Natural Res. Def. Council,
555 U.S. 7 (2008) .................................................................................................... 6, 21, 22, 24
STATUTES
15 U.S.C. § 1115(b)(8) .............................................................................................................. 7, 19
15 U.S.C. § 1119 ............................................................................................................................. 8
15 U.S.C. § 1127 ........................................................................................................................... 19
OTHER AUTHORITIES
Fed. R. Civ. P. 65(c) ...................................................................................................................... 26

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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
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INTRODUCTION
In 1944, the U.S. Navy asked Emeco to build a chair for use on Navy ships. According to
Emeco’s director of product management, at that time, Emeco’s founder “basically took a generic
wood chair, took the design over, and made it in aluminum.” (Declaration of Nathan Sabri, Ex.
1.) Now, 68 years later, Emeco claims that it owns that generic chair design. However, Emeco
cannot sweep the generic nature of the chair’s trade dress under the rug. What was generic then
remains generic now. Because generic designs cannot be protected, Emeco’s so-called
“incontestable” trade dress registration is invalid. Emeco cannot show that it is likely to prove
that it has valid and protectable rights in its chair’s trade dress.  
Emeco also overreaches as to its claim regarding the NAVY CHAIR trademark. A Navy
or naval chair is a generic reference to the type of chair used by the Navy. Emeco cannot own all
use of “Navy” or “naval” with “chair” any more than a company could own all use of “lawn”
with “chair.” A generic term cannot be protected, and Emeco’s THE NAVY CHAIR registration
is invalid. As with the chair’s trade dress, Emeco has not shown that it is likely to be successful
in proving that it has valid and protectable rights in the NAVY CHAIR trademark. 
Emeco separately fails to demonstrate a likelihood of success because it cannot show a
likelihood of confusion. Consumers are not likely to be confused as to the source of the “1940s
Aluminum Naval Chairs” in the Restoration Hardware catalog. A survey reflects that only 1%
(or 1.5% at most) of respondents who viewed the chair in the Restoration Hardware catalog
believed it came from Emeco. This falls far short of what case law requires to establish
confusion. Additionally, Restoration Hardware’s use of the descriptive phrase “1940s Aluminum
Naval Chair” was a protected fair use that accurately described the style of the product.
Finally, Plaintiff has not shown the irreparable harm necessary to justify the extraordinary
relief of a preliminary injunction. Restoration Hardware has not sold a single chair accused in
this dispute. Not one. It preempted any sales before a single chair was sent to a store or a
customer. Restoration Hardware is holding the chair inventory under lock and key in its
warehouses, and the chair no longer appears on its website. There is no need for an injunction
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because no sales have occurred, and they will not occur until there is a ruling on the merits.
1

STATEMENT OF FACTS
Origin of Navy Chair Design. The Navy set the specifications for what became the 1006
Navy Chair during World War II, and then developed it together with Alcoa. Emeco later built
the chair according to those specifications. As part of the public relations campaign Emeco
launched with this lawsuit, Emeco’s CEO, Gregg Buchbinder stated:
Emeco began in 1944. The US Navy had a problem. They needed
something for the Navy ships. They needed furniture that was
lightweight, non-corrosive for the salt air, nonflammable, that
would not affect the instruments so it needed to be nonmagnetic,
fireproof, and, of course, super durable because the sailors would
destroy everything on ships. The Navy worked with Alcoa
Aluminum, and they developed this chair, and they went to Emeco
and at that time Emeco produced what is now known as the 1006
Navy chair.
(Sabri Decl. Ex. 2; see also id. Ex. 3 (“Emeco’s quality guarantee of The Navy Chair® is the
result of elaborate and precise specifications developed by the U.S. Navy in 1944 in conjunction
with ALCOA Aluminum.”); Compl. ¶ 13.) Mr. Buchbinder explained that this “utilitarian,
purpose-built chair” has “become famous because it’s built so well.” (Sabri Decl. Ex. 2.)
Emeco’s director of product development admitted on a video posted by Emeco to its YouTube
channel that the founder of Emeco “basically took a generic wood chair, took the design over, and
made it in aluminum.” (Id. Ex. 1.)
Use of Naval Chairs Since 1940s. The simple aluminum chair that the Navy asked
Emeco to build in the 1940s has continuously been used on Navy ships over the decades that
followed. (Compl. ¶ 13.) Thus, the chair has literally been a “naval” chair for more than 60
years. Other companies have also made Navy chairs for decades. Goodform/General
Fireproofing made “Aluminum Army/Navy Chairs” in the 1940s. (Sabri Decl. Ex. 4.)
Chromcraft & Harvard Interiors made “Navy chairs” in the 1960s and 1970s. (Id. Ex. 5.) In fact,

1
Plaintiff seeks to enjoin both Restoration Hardware and Gary Friedman, but Plaintiff’s
motion establishes no facts suggesting Mr. Friedman’s personal involvement in the allegedly
infringing activities or that he is involved in selling or marketing any chairs on his own apart from
Restoration Hardware. An injunction against Mr. Friedman would thus be improper. The
remaining arguments against an injunction made in this brief apply equally to both Restoration
Hardware and to Mr. Friedman.
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the chair appears in a Navy catalog listing procurement data for furnishings approved for
shipboard use. (Id. Ex. 6.) The manufacturer of the Navy chair below is listed as Turnbull
Enterprises, Inc., not Emeco:



(Id.) Another entity, Pacific Maritime Industries, Corp., displays a similar product and states on
its website that it “manufacture[s] all items in the U.S. Navy’s NAVAL SHIPBOARD
FURNITURE CATALOG,” with a link to the Navy catalog that includes Turnbull’s identical
Navy chair. (Id. Ex. 7.) Many other versions of “Navy chairs” are offered on the market today,
including aluminum dining “Navy chairs,” stackable “Navy chairs,” a “New Spec Argent Navy
Chair,” “Brushed Aluminum Navy Side Dining Chairs,” and “Classic Design Navy Chair
Aluminum Dining Chair Reproduction.” (Id. Exs. 8-13.) Some have also emphasized the chairs’
naval origin, calling them “sailor chairs” and “military style” chairs. (Id. Exs. 14-16.)
Emeco’s Trademark Applications. Emeco waited more than 50 years before it applied
for a trade dress registration for the chair design in 1998. (Compl. Ex. 1.) In 2004, sixty years
after the Navy developed the chair design, Emeco applied for a trademark registration for the
words THE NAVY CHAIR, claiming use of that mark since 1999. (Id. Ex. 2.) It applied for a
trademark registration for a logo comprised of a chair design in 2005 (id. Ex.1) and for 111
NAVY CHAIR in 2009 (id Ex. 2.)
What the Emeco Chair is Named Today. As cited above, the CEO of Emeco has
recently stated that its chair “is now known as the 1006 Navy chair.” (Sabri Decl. Ex. 2.)
Plaintiff writes that it “named the chair with a number: 1006, some people call it the Navy chair.
We still call it the Ten-o-six.” (Id. Ex. 17.) The Emeco 1006 Navy chair is currently being sold
by retailers as: “1006 Navy® Side Chair” (id. Ex. 18), “Emeco 1006 – Navy Dining Chair” (id.
Ex. 19); and “Emeco Navy Chair (1006 Chair)” (id. Ex. 20). Plaintiff also sells a plastic “111
Navy Chair.” (Id. Ex. 17.)
Overview of Restoration Hardware’s Business. Restoration Hardware sells home
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furnishings through catalogs, the Internet, and more than 70 retail stores. (Declaration of Frances
Hamman ¶ 1.) It does not own or operate any manufacturing facilities. (Id.) It contracts with
third-party vendors for the manufacture of its merchandise. (Id.) Its sourcing strategy focuses on
identifying and using vendors that can provide the quality materials and fine craftsmanship that
its customers expect, while still offering good value on price. (Id. ¶ 2.)
Sourcing of “1940s Aluminum Naval Chair.” In May of this year, Restoration
Hardware decided to add new products to a fall catalog, which eventually was named “Big Style,
Small Spaces.” (Id. ¶ 3.) Several “mid-century modern” chairs were to be part of the new
catalog. (Id. ¶ 4.) Restoration Hardware’s sourcing representative in China, Stone Liu,
investigated two possible manufacturers of metal chairs, Amanson and Xuda, and each sent
exemplars of the chairs that it already had in its line. (Id.) Restoration Hardware settled on one
of the exemplars from Amanson; it was later described as the “1940s Aluminum Naval Chair” in
the “Big Style, Small Spaces” catalog. (Id. ¶¶ 5-6.)
Purchase Orders for Amanson Chairs. Restoration Hardware placed purchase orders
with Amanson on July 13, 2012. (Id. ¶ 6.) The chairs were to be delivered to two of Restoration
Hardware’s distribution centers. (Declaration of Jason Edelman ¶ 8.)
The “Big Styles, Small Spaces” Catalog. The “Big Styles, Small Spaces” catalog was
sent to approximately 8 million homes in the United States in early September 2012. (Id. ¶ 2.) It
included the page with the picture of a chair that Emeco included in its motion alongside the
description “Introducing 1940s Naval Chair.” (Mot. at 8.) The chair also appeared on the
Restoration Hardware website with the description “Introducing 1940s Aluminum Naval Chair
Collection.” (Id. at 9.)
Withdrawal of Chairs from Sale and from Website. After the catalog issued, Emeco
complained to Restoration Hardware of trade dress and trademark violations. (Edelman Decl.
¶ 2.) Restoration Hardware initially removed the term “naval” from the website, so that the chairs
were described as “Standard Aluminum Chairs.” (Id.) Emeco then filed suit on October 1, 2012.
Restoration Hardware withdrew the chairs from sale on October 3, 2012. (Id. ¶ 3.) The chairs
never made it out of the Restoration Hardware warehouses. (Id. ¶ 3; Declaration of Paul
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Gargagliano ¶ 5; Declaration of Robert Forte ¶¶ 2-5.) Restoration Hardware informed customers
who had placed orders already that their orders would not be filled. (Edelman Decl. ¶ 4.) These
chairs were never delivered to customers. (Id.)
Cancellation of Amanson Orders. Restoration Hardware cancelled all of its remaining
purchase orders with Amanson on October 3, 2012, and took action to secure whatever inventory
had been manufactured. (Id. ¶ 6, Ex. 1; Hamman Decl., ¶ 7, Ex. 2.) It confirmed with Amanson
that the inventory that had been built for Restoration Hardware had already shipped and that no
further chairs were in inventory in China or in the process of being manufactured. (Edelman
Decl. ¶ 7, Ex. 2; Hamman Decl. ¶ 7.) The first Amanson chairs arrived in the United States at the
Restoration Hardware distribution center in Mira Loma, California, on October 15, 2012, and
subsequent shipments have arrived on October 16 and 22 in Mira Loma and on November 8,
2012, at the Essex, Maryland distribution center. (Gargagliano Decl. ¶¶ 2-4; Forte Decl. ¶ 2.)
There are currently 2,416 chairs in locked and sealed storage containers at Restoration
Hardware’s facilities. (Edelman Decl. ¶ 9.) Additional chairs are on ships on their way to the
United States, and these shipments will be held in locked and sealed storage containers when they
arrive. (Gargagliano Decl. ¶ 9; Forte Decl. ¶ 6.) Restoration Hardware will not release any of the
chairs from storage until this Court rules on the merits of the case. (Edelman Decl. ¶ 10.)
Lack of Confusion as to Source, Affiliation, or Sponsorship. Hal Poret, an expert in
consumer surveys, conducted a survey to test whether potential Restoration Hardware customers
would associate Restoration Hardware’s chair with Emeco’s Navy Chair, or mistakenly believe
the chair, as shown in the catalog, was made by, affiliated with, or authorized by Emeco.
(Declaration of Hal Poret ¶ 7.) The survey was weighted toward higher-income households
(Restoration Hardware’s target customers) and only included persons who had shopped or were
likely to shop at Restoration Hardware for furniture. (Id. ¶ 6, Ex. 1 at 3, 12 & n.1.) First,
participants were shown the chair alone, and only 1% or 1.5% surveyed associated the look of
that chair with Emeco. (Id. ¶ 6, Ex. 1 at 11, 19, 21.) When shown the relevant pages of
Restoration Hardware’s catalog, only 1% (at most 1.5%) believed the chair was made by,
affiliated with, or authorized by Emeco. (Id. at ¶ 6, Ex. 1 at 11, 19, 21.) Notably, this survey was
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conducted after Emeco’s press blitz resulting in articles in the Los Angeles Times, the New York
Times, the San Francisco Chronicle, and many other publications. (Sabri Decl. Ex. 21.) Many of
these articles included photos of the chairs and summarized Emeco’s claims in this lawsuit. (Id.)
ARGUMENT
Plaintiff is not entitled to the “extraordinary remedy” of a preliminary injunction. Winter
v. Natural Res. Def. Council, 555 U.S. 7, 24 (2008) (“[a] preliminary injunction is an
extraordinary remedy never awarded as of right”). Plaintiff has not established: (1) a likelihood
of success on the merits of its claims; (2) a likelihood that it will suffer irreparable harm; (3) that
the balance of equities tips in its favor; or (4) that an injunction is in the public interest, id. at 19-
20, or that it meets the “serious questions” version of the four-factor analysis that is permitted in
Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127 (9th Cir. 2011).
I. PLAINTIFF CANNOT DEMONSTRATE LIKELIHOOD OF SUCCESS.
To prevail on a claim under the Lanham Act, Plaintiff must establish that it has valid,
protectable rights and that Restoration Hardware’s offer for sale of its accused chairs is likely to
cause confusion. Brookfield Commc’ns, Inc. v. W. Coast Entm’t Corp., 174 F.3d 1036, 1046 (9th
Cir. 1999). Plaintiff can establish neither. Because Restoration Hardware raises substantial
questions as to infringement and the validity of the rights on which Plaintiff relies, the Court
should deny the motion for preliminary injunctive relief. In the patent context, if a defendant
raises a “substantial question” as to infringement or validity that the patentee cannot prove “lacks
substantial merit,” the patentee is not entitled to a preliminary injunction. Aria Diagnostics, Inc.
v. Sequenom, Inc., Case No. C 11-06391 SI, 2012 U.S. Dist. LEXIS 93124, at *31-35 (N.D. Cal.
July 5, 2012) (denying motion for preliminary injunction); Elantech Devices Corp. v. Synaptics,
Inc., Case No. C 06-1839 PVT, 2008 U.S. Dist. LEXIS 116997, at *6 (N.D. Cal. Aug. 27, 2008)
(“If the other party raises substantial questions concerning either infringement or validity, the
preliminary injunction should not issue.”). This is because a “substantial question” shows
insufficient likelihood of success “[g]iven the time constraints within which an accused infringer”
must respond to a motion for preliminary injunction. New Eng. Braiding Co. v. A.W. Chesterton
Co., 970 F.2d 878, 883 (Fed. Cir. 1992). The same logic applies here, and Plaintiff’s motion
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should be denied because Restoration Hardware raises substantial questions as to both the validity
and infringement of Plaintiff’s asserted rights. See e.g., Cazet v. Epps, Case No. C 10-02460
JSW, 2010 U.S. Dist. LEXIS 67924, at *4 (N.D. Cal. June 11, 2010) (denying temporary
restraining order as “Court [could not] find . . . that Plaintiffs have obtained a protectable mark”).
A. Plaintiff’s Asserted Rights Are Not Protectable.
Trademarks are generally classified in one of four categories in a continuum from weakest
to strongest: (1) generic; (2) descriptive; (3) suggestive; and (4) arbitrary or fanciful. Filipino
Yellow Pages, Inc. v. Asian Journal Publ’ns, Inc., 198 F.3d 1143, 1146-47 (9th Cir. 1999)
(citations omitted). Generic terms are never protectable as trademarks. Id. at 1147. Descriptive
terms are protectable only upon a showing of secondary meaning, which refers to a “mental
recognition in buyers’ and potential buyers’ minds that products connected with the [mark]
emanate from or are associated with the same source.” Fleischer Studios, Inc. v. A.V.E.L.A., Inc.,
654 F.3d 958, 967 (9th Cir. 2011) (citation omitted).
Plaintiff touts its “incontestable” registrations as a basis to demonstrate its alleged rights,
but “the label of ‘incontestability’ is rather misdescriptive.” KP Permanent Make-Up, Inc. v.
Lasting Impression I, Inc., 408 F.3d 596, 603 (9th Cir. 2005). Significantly, “incontestability”
does not prevent a challenge that the mark is generic. Gen. Conference Corp. of Seventh-Day
Adventists v. Seventh-Day Adventists Congregational Church, 887 F.2d 228, 231 (9th Cir. 1989)
(“A trademark, even if it has become incontestable, is subject to the defense that the mark is
generic.”)
“Incontestable” product configuration designs also “may be cancelled if the mark is
generic.” Sunrise Jewelry Mfg. Corp. v. Fred S.A., 175 F.3d 1322, 1323 (Fed. Cir. 1999)
(vacating dismissal of petition to cancel and remanding for determination of whether “metallic
nautical rope design” mark was generic). They can also be cancelled if the trade dress is
functional. 15 U.S.C. § 1115(b)(8) (incontestable trade dress registration subject to “defense[] or
defect[]” that “the mark is functional”). Each of Plaintiff's “incontestable” registrations is subject
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to cancellation.
2

1. Plaintiff’s THE NAVY CHAIR mark and chair trade dress are
generic.

a. Plaintiff’s THE NAVY CHAIR mark is generic.
This Circuit determines whether a term is generic by referring to the “who-are-you/what-
are-you” test. Advertise.com, Inc. v. AOL Adver., Inc., 616 F.3d 974, 978 (9th Cir. 2010)
(vacating preliminary injunction as ADVERTISING.COM trademark was generic). A valid
trademark “answers the buyer’s questions ‘Who are you?’ ‘Where do you come from?’ ‘Who
vouches for you?’ But the generic name of the product answers the question ‘What are you?’”
Id. An online advertising company may respond to the question “what are you” with “an
advertising dot-com,” thus ADVERTISING.COM is generic. Id.; see also Rudolph Int’l, Inc. v.
Realys, Inc., 482 F.3d 1195, 1198-99 (9th Cir. 2007) (“disinfectable” answers “what-are-you” test
and is generic because it “relates to the type of product rather than its source”); Classic Foods
Int’l Corp. v. Kettle Foods, Inc., 468 F. Supp. 2d 1181, 1194-95 (C.D. Cal. 2007) (“kettle chips”
is generic as it identifies “a type of potato chip”).
Plaintiff asserts rights in a “Navy chair” trademark based on registrations for THE NAVY
CHAIR and 111 NAVY CHAIR, but “Navy chair” is generic because it answers the question
“what are you?,” not the question “who are you?” THE NAVY CHAIR is also generic because
the addition of the term “the” cannot render a generic term protectable. GMT Prods., L.P. v.
Cablevision of New York City, Inc., 816 F. Supp. 207, 211 (S.D.N.Y. 1993) (finding THE
ARABIC CHANNEL generic and noting, “use of the word ‘the’ before an unprotectable mark
does not convert an otherwise generic term into a descriptive one”).
3
Plaintiff’s chair was

2
Restoration Hardware will file counterclaims seeking to cancel each of Plaintiff’s
asserted registrations. The Court has the power to cancel invalid registrations. 15 U.S.C. § 1119.
3
Plaintiff’s claim of rights in “Navy Chair” based on 111 NAVY CHAIR also fails as a
plaintiff cannot base a claim on a generic component of a mark any more than it can on a generic
mark. Boston Duck Tours, LP v. Super Duck Tours, LLC, 531 F.3d 1, 18, 38 (1st Cir. 2008)
(reversing grant of preliminary injunction where no likelihood of confusion between BOSTON
DUCK TOURS and SUPER DUCK TOURS, as “duck tours” was generic and BOSTON and
SUPER dissimilar) (citing Am. Cyanamid Corp. v. Connaught Labs., Inc., 800 F.2d 306, 308 (2d
Cir. 1986) (“A trademark holder cannot appropriate generic or descriptive terms for its exclusive
use . . . . This principle applies equally to the generic component of a trademark.”))
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developed by the U.S. Navy in the 1940s, and it has been used on Navy ships ever since. (Sabri
Decl. Ex. 2; Mot. at 3.) Plaintiff’s chair is “a Navy chair,” and Plaintiff is just one source for it.
Turnbull Enterprises, Inc. is another. (Sabri Decl. Ex. 6.) The existence of a 1006 Navy chair,
which Plaintiff calls the “Ten-o-six,” and a 111 Navy chair demonstrates this further: 111 and
1006 provide the name of the product, and, along with the name Emeco answer “who are you?”
while “Navy chair” answers “what are you?” (Id. Ex. 17.)
In fact, the Trademark Office initially rejected Plaintiff’s application to register THE
NAVY CHAIR as “merely descriptive,” finding that “Navy chair” “refers to a particular style of
chair commonly used by the Navy.”
4
(Id. Ex. 22.) The Trademark Office attached to its
rejection pages from the Navy Shipboard Furniture Catalog showing the “Turnbull Enterprises”
Navy chairs discussed above. (Id.) Plaintiff overcame this objection by claiming that “navy
chair” had acquired secondary meaning due to Plaintiff’s alleged “substantially exclusive” use of
the mark since January 1999. (Id. Ex. 23.) Plaintiff did not reconcile its claim of “substantially
exclusive use” of the mark with the evidence showing a third-party manufacturer of “navy
chairs,” and the Trademark Office allowed the registration based upon Plaintiff’s representation.
(Id.)
In fact, there is a plethora of similarly designed “Navy chairs” or “sailor chairs”:
 A seller of midcentury antiques offers a “Vintage Goodform Aluminum
Army/Navy Chair,” circa 1940s, similar to Plaintiff’s chair. (Id. Ex. 4.)
 Similar “Sailor Chairs” are available on Amazon.com and NYCBed.com.
(Id. Exs. 14-15.)
 A similar “Brushed Aluminum Navy Side Dining Chair” was available on
Amazon.com. (Id. Ex. 8.)
 Seating Depot.com sells a “stackable navy chair.” (Id. Ex. 13.)
 A comparably styled “[b]rushed aluminum dining Navy chair” was
recently available on eBay. (Id. Ex. 10.)

4
The Trademark Office also initially rejected Plaintiff’s application to register 111
NAVY CHAIR, stating “‘Navy chair’ refers to a particular style of chair.” (Sabri Decl. Ex. 24.)
Plaintiff overcame the objection by relying solely on its existing registration for THE NAVY
CHAIR as evidence that NAVY CHAIR had acquired secondary meaning. (Id.)
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 “Argent Navy Chair in Aluminum” and “Classic Design Navy Chair
Aluminum Dining Chair Reproduction” were recently available on eBay.
(Id. Exs. 9, 12.)
Each of the examples pictured below is an aluminum “navy chair” or “sailor chair” sold by an
entity other than Plaintiff.





(Id. Exs. 4, 10, 13-15.)
Restoration Hardware has raised a substantial question of genericness as to THE NAVY
CHAIR mark, such that a motion for preliminary injunction based on that mark must be denied.
b. Plaintiff’s trade dress is generic.
Trade dress has a different test to determine genericness: “(1) if the definition of a product
design is overbroad or too generalized; (2) if a product design is the basic form of a type of
product; or (3) if the product design is so common in the industry that it cannot be said to identify
a particular source.” Walker & Zanger, Inc. v. Paragon Indus., Inc., 465 F. Supp. 2d 956, 962
(N.D. Cal. 2006). Plaintiff’s asserted trade dress
5
—shown below—is generic under the second
and third formulations set forth in Walker. It is merely the basic form of a type of a chair with
four legs, a back, and a seat, and the specific presentation of these elements is similarly so basic
and unadorned, that the design cannot be considered distinctive.




5
Plaintiff never clearly explains the basis for its claim of trade dress rights. To the extent
that Plaintiff relies on U.S. Reg. No. 3,191,187, that registration is for a logo, not for a chair
design. (Mot. at 5; Blavin Decl. ¶ 8, Ex. 7.) Plaintiff cites no authority, because there is none, to
support its position that a logo incorporating a common object can serve as a basis for a product
configuration trade dress infringement claim.
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(Compl. Ex. 1.) Plaintiff’s director of product development admits that Plaintiff “basically took a
generic wood chair, took the design over and made it in aluminum,” and that if one were to ask a
child to draw a chair, “she will probably take the 1006 chair, because it’s just a classic chair.”
(Sabri Decl. Ex. 1.) A lineup of Plaintiff’s chair, the accused chair, a third-party “sailor chair”
available on Amazon.com, and two so-called “alternative designs” (Mot. at 14-15) demonstrates
how commonplace this basic form is:





(Sabri Decl. Ex. 25.)
A Restoration Hardware employee even came across a Chinese-made Navy chair in a
local mall just this week. (Edelman Decl. ¶ 11.) The fact that numerous competitors are selling
very similar “naval chairs” and “sailor chairs” is strong evidence that the chair design
6
is generic.
(See supra pp. 9-10; Sabri Decl. Exs. 11 (ITALMODERN Cafe Aluminum Side Chair), 16
(DecoDina “military style” chairs in restaurant)); Stuart Spector Designs, Ltd. v. Fender Musical
Instruments Corp., 94 U.S.P.Q.2d 1549, 1555 (T.T.A.B. 2009) (explaining that “competitor use
of the same or substantially similar designs is evidence of genericness”). A generic,
unprotectable design cannot serve as a basis for a preliminary injunction.
c. Plaintiff’s trade dress is functional.
“The functionality doctrine prevents trademark law . . . from . . . inhibiting legitimate

6
U.S. Reg. No. 3,191,187 for the chair logo is also generic and incapable of identifying a
source. An image logo that is generic is unprotectable. Kendall-Jackson Winery, Ltd. v. E. & J.
Gallo Winery, 150 F.3d 1042, 1048 (9th Cir. 1998) (holding that “[g]rape-leaf designs have
become generic emblems for wine” and are not protectable); In re Capri Macaroni Corp., 173
U.S.P.Q. 630, 631-32 (T.T.A.B. 1972) (affirming refusal to register picture of colored macaroni
because so-called mark was “nothing more than the goods itself”).
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competition by allowing a producer to control a useful product feature.” Qualitex Co. v.
Jacobson Prods. Co., 514 U.S. 159, 164 (1995). Indeed, “copying is not always discouraged or
disfavored by the laws which preserve our competitive economy;” it “will have salutary effects in
many instances.” TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 29 (2001). For these
reasons, the Supreme Court warned that “trade dress protection must subsist with the recognition
that in many instances there is no prohibition against copying goods and products.” Id. Courts
are thus circumspect “when extending protection to product designs because such claims present
an acute risk of stifling competition.” Walker, 465 F. Supp. 2d at 961 (internal quotation marks
and citation omitted) (“granting trade dress protection to an ordinary product design create[s] a
monopoly in the goods themselves”).
The Ninth Circuit looks to four factors in determining functionality: “(1) whether the
design yields a utilitarian advantage, (2) whether alternative designs are available, (3) whether
advertising touts the utilitarian advantages of the design, and (4) whether the particular design
results from a comparatively simple or inexpensive method of manufacture.” Disc Golf Ass’n v.
Champion Discs, Inc., 158 F.3d 1002, 1006 (9th Cir. 1998). Under this test, Plaintiff’s asserted
chair design trade dress (see supra p. 10) is functional and its registration is subject to
cancellation.
First, by Plaintiff’s own admission the trade dress clearly yields a utilitarian advantage—
the chair is a “utilitarian, purpose-built chair,” designed to be “a seaworthy, lightweight and
durable chair suitable for use on warships and submarines.” (Sabri Decl., Ex. 2; Buchbinder
Decl. ¶ 4.) In fact, each of the specific elements that Plaintiff asserts as comprising its trade dress
provides a utilitarian advantage to Plaintiff’s Navy Chair: (i) three vertical bars connect the upper
and lower curves of the back of the seat and offer a place to grip the chair when moving it, (ii) the
rounded bends at top corners on the upper back of the seat, which also form the back legs, the
rounded curve on the lower back of the seat, and the overall concave curvature of the chair back
offer back support and comfort and the roundness avoids sharp corners, (iii) the seat with its “butt
dip” provides a comfortable place for one’s posterior, (iv) the horizontal bars between the chair
legs offer structural support, (v) the “outward bend” of the back legs provides stability, and
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(vi) the lack of fasteners (yielding a sculpture-like, one-piece design) improves the quality of the
chair by eliminating moving parts that could break.
7
In fact, Plaintiff touts durability as a key
characteristic of its chair, and the lack of fasteners furthers this stated goal of making a chair that
lasts. (Sabri Decl. Ex. 28.) Plaintiff also refers to “the pie-shaped cross section of the tapered
front legs,” but that element is not featured in Plaintiff’s asserted trade dress registration and thus
is not at issue here. See note 7 supra. Moreover, this element is functional, as the use of rounded
edges on the front chair legs makes for a smooth transition from the rounded seat corner, thereby
avoiding sharp edges and preventing injury and clothes-snagging.
One design blog highlighted the inherently functional nature of Plaintiff’s trade dress,
lauding how the chair consists of “a seamless, aluminum frame that is formed perfectly for
ergonomics and doesn’t fuss with ornamentation.” (Sabri Decl. Ex. 26.) Taken together as a
whole, Plaintiff’s trade dress is merely an arrangement of elements necessary to the product’s
purpose as a durable, industrial chair that fit the U.S. Navy’s specifications. The specific design
enhances its durability and thus undeniably yields a utilitarian advantage. In another recent case
involving a far more unique design of a chair enveloped within a tree trunk, the court concluded
that the asserted chair design was functional because the elements of the asserted trade dress were
“essential to the use or purpose of the furniture piece or affect[ed] the cost or quality of the
furniture piece.” See e.g., Heptagon Creations, Ltd. v. Core Grp. Mktg. LLC, Case No. 11 Civ.
01794 (LTS)(AJP), 2011 U.S. Dist. LEXIS 147102, at *20-21 (S.D.N.Y. Dec. 22, 2011) (internal
citations omitted).
Second, Plaintiff points to two “alternative designs for aluminum-based chairs that did not
copy, identically, the complete design of the Navy Chair®” to suggest that alternative designs are
available (Mot. at 14-15 (emphasis added)), but the differences are minor. The numerous sources

7
Plaintiff identifies a “distinct hand brushed finish with the contrasting direction where
the leg meets the seat bottom” as an element of its trade dress (Mot. at 13), but its trade dress
registration is a line drawing that does not cover specific finishes. (Blavin Decl. ¶ 7, Ex. 6.)
Similarly, Plaintiff cannot rely on “the positioning and angle of the curved horizontal bar(s) on
the lower base of the seat” (Mot. at 13) because they are not shown on the drawing. For purposes
of this motion, the elements of Plaintiff’s trade dress are limited to the design disclosed in U.S.
Reg. No. 2,511,360 because Emeco failed to assert common law trade dress rights in its motion.
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of aluminum chairs that are virtually identical to Plaintiff’s chair design demonstrate that the
elements of Plaintiff’s claimed trade dress are essential to the purpose and use of a lightweight
aluminum chair. TrafFix, 532 U.S. at 28-29.
Third, Plaintiff’s advertisements tout the durability of its chairs with headlines that
proclaim: “First let’s make things that last.” (Buchbinder Decl. Ex. A; Sabri Decl. Exs. 27-29.)
Plaintiff achieved this utilitarian durability using a functional chair with no fasteners, no moving
parts, and made of a single strong material—aluminum. Plaintiff’s touting of this facet of the
design is evidence that the design is functional.
Fourth, the chair “design results from a comparatively simple or inexpensive method of
manufacture.” Disc Golf, 158 F.3d at 1006. Numerous third parties sell comparable chairs in the
range of $89 to $255 (Sabri Decl. Exs. 8-15), and dozens of manufacturers offer comparable
chairs wholesale in the range of $19 to $100. (Id. Ex. 31.) The particular chair design selected by
Restoration Hardware has a wholesale price of $37. (Hamman Decl. Ex.1.) While Plaintiff may
use a complex 1940s manufacturing process (Mot. at 16), that decision does not render the design
itself complex or costly. As shown by the prices above, the chair design is inexpensive to build.
For these reasons, there is at least a substantial question as to whether Plaintiff’s trade
dress is functional.
B. Plaintiff Has Not Shown a Likelihood of Confusion.
Courts look to the multifactor test set out in AMF Inc. v. Sleekcraft Boats, 599 F.2d 341,
348-49 (9th Cir. 1979), to assess likelihood of confusion. Specifically, these factors are: (1)
strength of the mark; (2) proximity of the goods; (3) similarity of the marks; (4) evidence of
actual confusion; (5) marketing channels used; (6) type of goods and the degree of care likely to
be exercised by the purchaser; (7) defendant’s intent in selecting the mark; and (8) likelihood of
expansion of the product lines. Id. It is not sufficient to show that confusion is possible. Plaintiff
instead must demonstrate that Restoration Hardware’s chairs are “likely to confuse an
appreciable number of people.” Entrepreneur Media v. Smith, 279 F.3d 1135, 1151 (9th Cir.
2002) (emphasis in original). In other words, they “will probably cause consumer confusion as to
the source or sponsorship of the product.” Fiji Water Co., LLC v. Fiji Mineral Water USA, LLC,
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741 F. Supp. 2d 1165, 1177 (C.D. Cal. 2010) (emphasis added).
Plaintiff asserts that the Sleekcraft test is “unnecessary” here because Restoration
Hardware’s products are counterfeits. (Mot. at 19 & nn.7-8.) Unlike in the cases cited by
Plaintiff, Restoration Hardware has not engaged in “counterfeiting.” In Ubiquiti Networks, Inc. v.
Kozumi USA Corp., Case No. C 12-2582 CW, 2012 U.S. Dist. LEXIS 85665, at *38-39 (N.D.
Cal. June 20, 2012), the court noted that defendants’ counterfeit products “used design, hardware
and software identical to the original Ubiquiti product” and “[n]otably” used plaintiff’s registered
word mark as well as the company’s name and corporate address.
8
By contrast, Restoration
Hardware has not used the Emeco name; it used the term “naval” in its descriptive sense; it
marketed the chairs in its own catalog and on its own website; and it did not try to sell them as
Emeco chairs. Cf. Koon Chun Hing Kee Soy & Sauce Factory, Ltd. v. Eastimpex, Case No. C 04-
4146 MMC, 2007 U.S. Dist. LEXIS 7880, at *7 (N.D. Cal. Feb. 2, 2007) (emphasis added)
(Chesney, J.) (“mark and design imprinted” on counterfeit products was “the same as, or
substantially indistinguishable, from” from plaintiff’s mark and trade dress).
1. Key Sleekcraft factors establish that confusion between
Plaintiff’s trade dress and trademarks and Restoration
Hardware’s chairs is not likely.
a. Plaintiff’s trade dress and trademarks are very weak.
Even if the Court determined that Plaintiff’s trade dress and trademarks are not generic,
they would still be very weak and should be afforded very little protection. See Entrepreneur
Media, 279 F.3d at 1142 n.3 (registration’s incontestable status “does not require a finding that
the [trade dress] is strong”). Although the Restoration Hardware chairs look similar to Plaintiff’s
chairs, as discussed above, Plaintiff’s chair design is a basic design common throughout the

8
See also Herman Miller Inc. v. Alphaville Design Inc., Case No. C 08-03437 WHA,
2009 U.S. Dist. LEXIS 103384, at *3 (N.D. Cal. Oct. 22, 2009) (counterfeit chairs were
“identical with, or substantially indistinguishable from” registered trade dress and were advertised
under plaintiff’s brand name); Philip Morris USA Inc. v. Felizardo, Case No. 03 Civ. 5891 (HB),
2004 U.S. Dist. LEXIS 11154, at *18 (S.D.N.Y. June 18, 2004) (counterfeit cigarettes were sold
in “imitation” Phillip Morris cartons); Phillip Morris USA Inc. v. Shalabi, 352 F. Supp. 2d 1067,
1071, 1073 (C.D. Cal. 2004) (stating that goods were counterfeit where they “appeared to be”
MARLBORO® and MARLBORO LIGHTS® brand cigarettes).
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furniture industry, and “Navy chair” is a common phrase used by competitors to describe a style
of chair. (See, e.g., Sabri Decl. Ex. 4, 8-10, 12-13.) The numerous third-party uses of similar
chair designs and names significantly weaken Plaintiff’s trade dress and trademark.
A trade dress or trademark is weak where there is little or no association between it and
the origin or source. See Network Automation, Inc. v. Advanced Sys. Concepts, 638 F.3d 1137,
1149 (9th Cir. 2011). Plaintiff offers circumstantial evidence of the strength of its trade dress and
trademark in the form of investment in advertising and length of use. (Mot. at 17-18.) However,
this is not sufficient to convert weak trade dress and trademark rights into strong ones because it
says nothing of the “effectiveness” of Plaintiff’s efforts. See First Brands Corp. v. Fred Meyer,
Inc., 809 F.2d 1378, 1383 (9th Cir. 1987). Plaintiff presents no evidence that consumers actually
associate its trade dress solely with Plaintiff. Plaintiff’s failure to submit survey evidence on this
point is particularly telling. See Vision Sports, Inc. v. Melville Corp., 888 F.2d 609, 615 (9th Cir.
1989) (“An expert survey of purchasers can provide the most persuasive evidence of secondary
meaning.”). In fact, Restoration Hardware submits a survey that shows that only 1.0% (2.5% at
most) of people surveyed associated Restoration Hardware’s chair—which Plaintiff alleges is
virtually indistinguishable from its own trade dress—with Plaintiff. (Poret Decl. ¶¶ 6, 9 Ex. 1 at
11, 19, 21.) These rates fall far below the figures generally found to support a finding of
secondary meaning. See Straumann Co. v. Lifecore Biomedical Inc., 278 F. Supp. 2d 130, 137
(D. Mass. 2003) (no reasonable jury could infer secondary meaning from 0-2.73% association).
b. There is no evidence of significant actual confusion.
Plaintiff’s failure to offer survey evidence on likelihood of confusion “may lead to an
inference that [Plaintiff] predicted that the results of such a survey would be unfavorable,” Cairns
v. Franklin Mint Co., 24 F. Supp. 2d 1013, 1041-42 (C.D. Cal. 1998), which turned out to be true
as Restoration Hardware’s survey firmly demonstrates that confusion is not likely. When shown
the chair alone, only 1% or 1.5% of those surveyed associated the look of that chair with Emeco.
(Id. ¶¶ 6, 9 Ex. 1 at 11, 19, 21.) When shown the relevant pages of Restoration Hardware’s
catalog with the accused phrase “Introducing 1940s Naval Chair,” only 1% or 1.5% believed the
chair was made by, affiliated with, or authorized by Emeco. (Id. at ¶¶ 6, 9, Ex. 1 at 11, 19, 21.)
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Restoration Hardware’s survey expert concludes that “there is no more than a negligible
likelihood that the Restoration Hardware chair will be confused with Emeco or its Navy Chair . . .
[or] that the appearance of the chair in the Restoration catalog will cause an association with
Emeco’s Navy Chair.” (Id. ¶ 10.)
This is strong evidence that there is no likelihood of confusion between the chair as
pictured and described in Restoration Hardware’s catalog and Plaintiff’s trade dress and
trademarks. See Surfvivor Media, Inc. v. Survivor Prods., 406 F.3d 625, 629, 633 (9th Cir. 2005)
(survey showing less than 2% confusion demonstrated “absence of significant confusion”);
Cairns, 24 F. Supp. 2d at 1040 (“Survey evidence clearly favors the defendant when it
demonstrates a level of confusion much below ten percent.”) (internal citation and quotation
marks omitted); see also Henri’s Food Prods. Co. v. Kraft, Inc., 717 F.2d 352, 358 (7th Cir.
1983) (affirming conclusion that “a 7.6% confusion finding weighs against infringement”).
Instead of a survey, Plaintiff offers “evidence” of “several instances” of actual confusion
(Mot. at 20; Blavin Decl. ¶ 15, Ex. 14), but the weight of the evidence shows that consumers are
not confused and are aware that there are different sources for the chairs. (See Blavin Decl. ¶ 16,
Ex. 15 (user comment noting that “Restoration Hardware has some relatively reasonable repros of
the Emeco classic”); id. ¶ 17, Ex. 16 (describing Restoration Hardware’s chair as “Emeco-
esque”). If a consumer refers to a chair as a “repro,” she does not think it is the original product.
Similarly, the “Emeco-esque” comment does not imply that there is any confusion as to source,
sponsorship, or affiliation. M2 Software, Inc. v. Madacy Entm’t, 421 F.3d 1073, 1083 (9th Cir.
2005) (emphasis in original) (finding evidence that “[a]t best” showed consumer was “reminded”
of plaintiff did not show actual confusion). A review of the other blog commenters that Plaintiff
submitted does not suggest a likelihood of confusion. (See Blavin Exs. 14-16.)
c. The parties use different trade channels.
Plaintiff and Restoration Hardware market their products through distinct trade channels
such that consumer confusion is highly unlikely. Plaintiff sells its products through its website,
“established retail furniture and design stores such as Design Within Reach,” and “to trade
architects and designers, governments, contract dealers, international distributors, and for end use
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commercial applications.” (Mot. at 5.) Restoration Hardware, by contrast, sells its products
through its own retail stores, website, and catalogs. (Hamman Decl. ¶ 1.) Because Plaintiff does
not sell its chairs through Restoration Hardware’s retail channels, the parties do not use
overlapping marketing channels, eliminating any risk of point-of-sale consumer confusion. See
Fruit of the Loom, Inc. v. Girouard, 994 F.2d 1359, 1361 (9th Cir. 1993) (finding that “almost no
overlap[] of marketing channels” weighed in favor of no confusion).
d. Consumers exercise a high degree of care.
When purchasing expensive items, consumers are considered “to be more discerning—
and less easily confused . . . .” Brookfield Commc’ns, Inc., 174 F.3d at 1060. Here, Plaintiff sells
its chairs for approximately $455 (Blavin Decl. Ex. 1), whereas Restoration Hardware listed the
price of its chairs at $129 (id. Ex. 11). Given these price points, consumers will use care before
making a decision to purchase and will understand that there may be a difference between these
two products. See Beats Elecs., LLC v. Fanny Wang Headphone Co., Case No. C-10-5680
MMC, 2011 U.S. Dist. LEXIS 2228, at *16 (N.D. Cal. Jan. 5, 2011) (denying TRO in part
because “given the relatively high price point,” a typical consumer is “likely to exhibit care when
making his/her selection”).
e. Restoration Hardware did not intend to cause confusion
with Plaintiff’s chairs.

Plaintiff offers no evidence that Restoration Hardware intended to confuse consumers as
to the source of its products. Plaintiff argues that Restoration Hardware sells counterfeit goods
and that that shows intent. (Mot. at 21.) However, Plaintiff’s case for counterfeiting relies not on
evidence, but rather on ad hominem attacks that Restoration Hardware is sued a lot and steals the
designs of others. Such allegations do not show Restoration Hardware’s intent to confuse its
customers into believing it was selling Emeco chairs.
f. The word marks are not sufficiently similar to cause
confusion
Restoration Hardware’s descriptive phrases such as “Introducing 1940s Naval Chair” and
“Introducing 1940s Aluminum Naval Chair Collection” are not similar enough to the trademarks
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THE NAVY CHAIR or 111 NAVY CHAIR to cause confusion.
9
The only true overlap is the
generic word CHAIR. The term “naval” is a common descriptive word for something designed
and used by the U.S. Navy. Using the descriptive word “naval” does not create a likelihood of
confusion. See Entrepreneur Media, 279 F.3d at 1145 n.9. The fact that the accused phrases
appeared only on Restoration Hardware’s website and in Restoration Hardware’s catalog, and not
on any products, also militates against a finding that the marks are sufficiently similar to cause
confusion. Consumers who encounter the accused phrases will only see them in connection with
Restoration Hardware, which they will understand to identify the source of the products. See
Groupion, LLC v. Groupon, Inc., 859 F. Supp. 2d 1067, 1073-74 (N.D. Cal. 2012) (GROUPION
and GROUPON dissimilar because of differences in color, background, and capitalization, as
well as frequent appearance of distinct tagline next to GROUPION).
2. Defendants’ accused phrases are protected by the defense of
fair use.
Even if there were some likelihood of confusion due to Restoration Hardware’s use of the
accused phrases, the affirmative defense of “fair use” defeats trademark claims where, as here, a
defendant uses a term “descriptively, not as a mark, fairly, and in good faith.” KP Permanent
Make-Up, Inc., 543 U.S. at 123-24 (defendant “has no independent burden to negate the
likelihood of any confusion;” “fair use can occur along with some degree of confusion”) (citing
15 U.S.C. § 1115(b)(4)). The Supreme Court cautioned that a trademark owner adopting a mark
with a descriptive meaning, as here, accepts a risk of confusion, and “the use of a similar name by
another to truthfully describe his own product does not constitute a legal or moral wrong.” Id. at
119, 122 (internal citations omitted). Thus, where a party used “VCR-2” to describe a particular
input on a receiver, it was not liable for infringing the registered “VCR-2” mark, as its use was

9
Plaintiff’s conclusory assertion that Plaintiff counterfeited the word marks 111 NAVY
CHAIR and THE NAVY CHAIR marks is baseless. (Mot. at 19.) The Lanham Act defines a
“counterfeit mark” as “a spurious mark which is identical with, or substantially indistinguishable
from, a registered mark.” 15 U.S.C. § 1127. The identicality standard for counterfeiting is high.
Louis Vuitton Malletier S.A. v. Haute Diggity Dog, LLC, 507 F.3d 252, 269 (4th Cir. 2007).
Plaintiff’s use of “Introducing 1940s Naval Chair” does not even begin to meet this standard.
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“fair use as a matter of law.” In re Dual-Deck Video Cassette Recorder Antitrust Litig., 11 F.3d
1460, 1467 (9th Cir. 1993).
Plaintiff attacks Restoration Hardware’s use of the phrases “Introducing 1940s Naval
Chair” and “Introducing 1940S Aluminum Naval Chair” as shown below:









(Blavin Decl. Exs. 11, 13.) However, these accused phrases are protected by the fair use defense
because they are fair, good faith descriptive uses, and they are not being used as trademarks. KP
Permanent Make-Up, 543 U.S. at 124. The Navy chair was designed by the U.S. Navy in the
1940s (supra p. 2), has been used by the Navy on ships and submarines for decades, and
continues to be used by the Navy to this day. (Compl. ¶ 13.) Restoration Hardware’s phrases
thus aptly describe the chairs. Plaintiff even concedes that Restoration Hardware uses the phrase
“naval chair” in “describing its products.” (Mot. at 6, 11) (emphasis added). Notably, Plaintiff is
not accused of using a term identical to Defendants’ purported “navy chair” trademark, and uses
the phrase “naval chair” only as part of a longer phrase. Indeed, Restoration Hardware’s survey
results, which presented respondents with the chairs as they appeared in the Restoration Hardware
catalog, along with the phrase “Introducing 1940s Naval Chair,” demonstrate that the phrase was
not viewed as a trademark or source identifier.
Plaintiff has not shown a likelihood of confusion resulting from Restoration Hardware’s
use of the descriptive term “naval chair” in connection with longer phrases.
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II. PLAINTIFF CANNOT DEMONSTRATE THAT IT IS LIKELY TO
SUFFER IRREPARABLE HARM WITHOUT AN INJUNCTION

Plaintiff must demonstrate that it is likely to suffer irreparable harm in the absence of an
injunction. Rovio Ent’mt Ltd. v. Royal Plush Toys, Inc., Case No. C 12-5543 SBA, 2012 U.S.
Dist. LEXIS 159257, at *14-15 (N.D. Cal. Nov. 6, 2012). Previously, courts presumed
irreparable injury if the moving party showed likelihood of success on the merits of trademark
infringement claims. Id. at *12 (citing Brookfield Communs., Inc. v. West Coast Entm’t Corp.,
174 F.3d 1036 (9th Cir. 1099)). However, in eBay Inc. v. MercExchange, L.L.C., 547 U.S. 388,
393 (2006), the Supreme Court rejected categorical rules that avoid the four-factor injunction test,
and in Winter v. NRDC, Inc., 555 U.S. 7, 22 (2008), emphasized that preliminary injunctions are
“extraordinary remed[ies]” that may only be awarded where “irreparable injury is likely in the
absence of an injunction.” (emphasis in original).
The Ninth Circuit has not directly addressed whether a presumption of irreparable harm
upon a showing of likelihood of success still exists in trademark infringement suits, but numerous
judges in this district have found that a plaintiff is not entitled to a presumption of irreparable
harm. See, e.g., Rovio Ent’mt Ltd., 2012 U.S. Dist. LEXIS 159257, at *14-15 (holding no
presumption and denying request for TRO); BoomerangIt, Inc. v. ID Armor, Inc., Case No. 5:12-
cv-0920 EJD, 2012 U.S. Dist. LEXIS 86382, at *9-10 (N.D. Cal. June 21, 2012) (same);
ConocoPhillips Co. v. Gonzalez, Case No. 5:12-cv-00576-LHK, 2012 U.S. Dist. LEXIS 20972, at
*5-6 (N.D. Cal. Feb. 17, 2012) (same, denying motion for TRO and preliminary injunction);
Groupion, LLC v. Groupon, Inc., 826 F. Supp. 2d 1156, 1167 (N.D. Cal. 2011) (same, denying
motion for preliminary injunction). One court in this circuit denied a preliminary injunction on a
Lanham Act false advertising claim where the plaintiff failed to establish likelihood of irreparable
harm even though all other factors favored the plaintiff. Leatherman Tool Group, Inc. v. Coast
Cutlery Co., 823 F. Supp. 2d 1150, 1158-59 (D. Or. 2011) (“[T]hree of the four factors—
likelihood of success on the merits, balance of the equities, and the public interest—favor
Leatherman. I cannot however, grant Leatherman’s request for a preliminary injunction because
it has failed to show a likelihood of irreparable harm.”). In analyzing irreparable harm, the Ninth
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Circuit has emphasized that “the correct standard is not whether there is a ‘possibility’ but
whether there is a ‘likelihood of irreparable injury.’” Stormans, Inc. v. Selecky, 586 F.3d 1109,
1138 (9th Cir. 2009) (quoting Winter, 555 U.S. at 26.); see also Caribbean Marine Servs. Co. v.
Baldrige, 844 F.2d 668, 674 (9th Cir. 1988) (“Speculative injury does not constitute irreparable
injury sufficient to warrant granting a preliminary injunction.”).
Plaintiff does not carry its burden of showing a likelihood of irreparable harm as it makes
only conclusory assertions of irreparable harm and provides no persuasive evidence. Plaintiff
argues that it will lose reputation and goodwill because the products Restoration Hardware
offered were inferior and cheaper. (Mot. at 21-22.) It provides no evidentiary support, relying
solely on a self-serving and equally conclusory declaration from Plaintiff’s CEO. (Id.) Plaintiff
provides no evidence of lost sales, price erosion,
10
loss of market share, or even damage to
goodwill or reputation, only the speculative and subjective belief that it will be harmed. The
Leatherman court found that a declaration from “one of [plaintiff’s] senior executives to vouch
for [plaintiff’s harm]” was insufficient to establish likelihood of irreparable harm, as “plaintiff
must offer something more than a mere subjective belief that it is likely to be injured.”
Leatherman Tool Group, 823 F. Supp. 2d at 1158 (internal citation omitted). Similarly, the fact
that the infringing product was cheaper and plaintiff’s market position would be harmed did not
show irreparable harm. OG Int’l, Ltd. v. Ubisoft Entm’t, Case No. C 11-04980 CRB, 2011 U.S.
Dist. LEXIS 124020, at *27 (N.D. Cal. Oct. 26, 2011) (denying motion for preliminary
injunction).
11
Plaintiff has not presented any real evidence of irreparable harm, only speculative

10
Plaintiff’s assertion that Restoration Hardware’s “low price point” “cheapens the entire
Navy Chair product line” is at odds with the facts. The market is already saturated with “navy
chairs” priced below and above the Restoration Hardware chairs. (Sabri Decl. Exs. 8, 9, 13, 14.)
11
Plaintiff cites four cases to support its claim that loss of goodwill establishes irreparable
harm, but each of the cases had ample evidence of irreparable harm and the courts did not rely
solely on assertions of loss of goodwill. (See Mot. at 21-22.) Stuhlbarg Int’l Sales Co., Inc. v.
Brush and Co., Inc., 240 F.3d 832, 840-41 (9th Cir. 2001), had evidence of threatened loss of
specific customers. SunEarth, Inc. v. Sun Earth Solar Power Co., 846 F. Supp. 2d 1063, 1083
(N.D. Cal. 2012), had evidence of wider actual confusion. Paulsson Geophysical Servs., Inc. v.
Sigmar, 529 F.3d 303, 313 (5th Cir. 2008), had evidence of a risk of loss of a $29 million contract
and a small community at risk of confusion. Tempur-Pedic Int’l, Inc. v. Waste to Charity, Inc.,
Case No. 07-2015, 2007 U.S. Dist. LEXIS 11435, at *24-27 (W.D. Ark. Feb. 16, 2007), had
(Footnote continues on next page.)
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assertions of harm that are insufficient to satisfy Plaintiff’s burden.
Moreover, Plaintiff’s entire claim of irreparable harm is premised on an assumption of
future sales of the accused chairs. Restoration Hardware, however, has not sold a single chair,
and has told Plaintiff and this Court that it will not do so until the Court rules in this case.
Restoration Hardware promptly removed the word NAVAL from its website after it received a
cease-and-desist letter from Plaintiff’s counsel, and even locked down its inventory. (Edelman
Decl. ¶ 2.) It cancelled all outstanding orders for the chairs and informed customers who had
placed phone or internet orders that their chair orders would not be filled. (Id. ¶¶ 4, 6.)
Restoration Hardware also removed the SKUs of the accused chairs from its purchasing system
so the accused chairs cannot be sold. (Id. ¶ 3.)
This is not a situation where a defendant simply declares that it will not infringe in the
future; rather, Restoration Hardware has gone above and beyond to assure Plaintiff that there is
no chance of alleged infringement during the pendency of the case, despite substantial questions
on the merits. Defendants’ actions either moot the injunction outright, or at a minimum, make the
risk of irreparable harm extremely slight. See Nichia Corp. v. Seoul Semiconductor, Ltd., Case
No. 06-0162 MMC, 2008 U.S. Dist. LEXIS 12183, at *7-8 (N.D. Cal. Feb. 7, 2008) (denying
permanent injunction where defendants no longer manufactured product, only two accused
products had been sold, and technology in question was obsolete); see also Hypoxico Inc. v.
Colorado Altitude Training LLC, Case No. 02 Civ. 6191 (TPG), 2012 U.S. Dist. LEXIS 122830,
at *34 (S.D.N.Y. Aug. 28, 2012) (“With regard to the 150 tent, [defendant] no longer sells it, and
no injunction is necessary.”); Tyco Healthcare Grp. LP v. Applied Med. Res. Corp., Case
No. 9:09-cv-176, 2011 U.S. Dist. LEXIS 154686, at *5-6 (E.D. Tex. Sept. 23, 2011) (denying
motion for reconsideration where district court had previously held, “[Defendant] also represents
that it no longer makes or sells the accused products. To the extent that this is indeed the case,
(Footnote continued from previous page.)
evidence of gray market sales of mattresses that did not comply with plaintiff’s handling
requirements.
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Plaintiffs’ argument regarding irreparable harm carries even less weight.”).
III. THE BALANCE OF HARDSHIPS DOES NOT FAVOR ISSUANCE OF A
PRELIMINARY INJUNCTION.

To prevail, Plaintiff must establish that “the balance[e] of equities tips in [its] favor.”
Winter, 555 U.S. at 20. Courts “must balance the competing claims of injury and consider the
effect on each party of the granting or withholding of the requested relief.” Id. at 24 (citation
omitted). Because Plaintiff has not shown that it will suffer irreparable harm if an injunction does
not issue, Plaintiff has not identified significant hardships that will weigh in its favor.
By contrast, Restoration Hardware will suffer substantial hardship if Plaintiff’s proposed
injunction issues. It is overbroad, unduly burdensome, and grossly unfair. It would require that
Restoration Hardware provide a notice to all recipients of its catalogs that “the genuine Navy
Chair® products are available for purchase from Plaintiff and its authorized retailers.” (Pl.’s
Proposed Order ¶ 4.) In essence, Plaintiff wants Restoration Hardware to create free advertising
for Plaintiff, an excessive measure that “would not be remedial, but rather would be punitive.”
Supelco, Inc. v. Alltech Assocs., Case No. 86-2484, 1986 U.S. Dist. LEXIS 21236, at *14-15
(E.D. Pa. Aug. 25, 1986) (denying preliminary injunction in false advertising case that would
require recall of advertisements that had “limited effect”); JL Beverage Co., LLC v. Beam, Inc.,
Case No. 2:11-cv-00417-MMD-CWH, 2012 U.S. Dist. LEXIS 137076, at *48-49 (D. Nev. Sept.
25, 2012) (identifying recall of products and promotional materials as hardships that tip balance
in defendants’ favor). Additionally, these proposed remedies would not remedy Plaintiff’s
alleged harm. If harm was caused in September by exposing potential customers to a less
expensive version of a naval chair in the catalog (and Restoration Hardware certainly denies that
there was any harm), it is hard to fathom how reminding these customers of that chair now, three
months later, will improve the situation.
In addition to the financial cost of recalling catalogs and publishing a corrective notice,
Restoration Hardware will suffer a loss of goodwill with its customers that would be
disproportionate to any asserted harm of simply leaving the status quo in place. Such
overreaching corrective measures are should be avoided given that the record in this case is far
Case3:12-cv-05072-MMC Document26 Filed11/16/12 Page31 of 33
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CASE NO. 3:12-CV-5072 MMC
25
sf-3216486
from fully developed. Genovese Drug Stores, Inc. v. TGC Stores, Inc., 939 F. Supp. 340, 350-51
(D.N.J. 1996) (finding that harm from defendant being forced to change its name would be
irreparable and more devastating than the possibility of harm to plaintiff’s reputation).
IV. THE PUBLIC INTEREST DOES NOT REQUIRE A PRELIMINARY
INJUNCTION

In trademark cases, “courts often define the public interest at stake as the right of the
public not to be deceived or confused.” Cytosport v. Vital Pharm., Inc., 617 F. Supp. 2d 1051,
1081 (E.D. Cal. 2009). Because Plaintiff has failed to establish that consumer confusion is likely,
the public interest weighs against granting an injunction. See JL Bev., 2012 U.S. Dist. LEXIS
137076, at *48-49 (public interest weighs against injunction where “the public is unlikely to be
confused”); Aurora World, Inc. v. TY Inc., 719 F. Supp. 2d 1115, 1170 (C.D. Cal. 2009) (same).
Though Restoration Hardware has stopped selling the products, granting an injunction
here would undercut the well-settled policy of “encouraging, not stifling, competition.” Calvin
Klein Cosmetics Corp. v. Lenox Labs., Inc., 815 F.2d 500, 505 (8th Cir. 1987). The public
interest favors such competition because it offers consumers more choices. Id. (vacating
preliminary injunction where “strong public interest in lowest possible prices” not considered).
12

CONCLUSION
For the foregoing reasons, this Court should deny Plaintiff’s motion for a preliminary
injunction and allow this case to proceed to a full and fair determination on the merits after there
has been adequate time for discovery.


12
Plaintiff argues that because Restoration Hardware has stopped selling the products, it
“is willing and able to assume any monetary loss risk as a result of an injunction” such that no
bond is required. (Mot. at 24 n.12.) Plaintiff cites no authority and has not demonstrated why
this Court should deviate from the plain language of Fed. R. Civ. P. 65(c), which requires a bond.
Case3:12-cv-05072-MMC Document26 Filed11/16/12 Page32 of 33
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DEFENDANTS’ OPPOSITION TO PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
CASE NO. 3:12-CV-5072 MMC
26
sf-3216486
Dated: November 16, 2012

MORRISON & FOERSTER LLP
By: /s/ Wesley E. Overson
WESLEY E. OVERSON
Attorneys for Defendants
RESTORATION HARDWARE, INC.
and GARY FRIEDMAN

Case3:12-cv-05072-MMC Document26 Filed11/16/12 Page33 of 33
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[PROPOSED] ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
CASE NO. 3:12-CV-5072 MMC
1
sf-3219705







UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
EMECO INDUSTRIES, INC.,
Plaintiff,
v.
RESTORATION HARDWARE, INC., GARY
FRIEDMAN, and Does 1-10,
Defendants.
Case No. 3:12-cv-5072 MMC
[PROPOSED] ORDER DENYING
PLAINTIFF’S MOTION FOR
PRELIMINARY INJUNCTION





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[PROPOSED] ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
CASE NO. 3:12-CV-5072 MMC
2
sf-3219705
Plaintiff Emeco Industries, Inc. (“Plaintiff”) has moved for a preliminary injunction in the
above-captioned matter. This motion came on for hearing on December 14, 2012 at 9:00 a.m.
Having considered the arguments of the parties and the papers submitted, Plaintiff’s Motion for
Preliminary Injunction is DENIED.
1. To succeed on its motion, Plaintiff must show it “is likely to succeed on the merits,
that [it] is likely to suffer irreparable harm in the absence of preliminary relief, that the balance of
equities tips in [its] favor, and that an injunction is in the public interest.” Winter v. NRDC, Inc.,
555 U.S. 7, 20 (2008). The Court has discretion to consider these factors on a sliding scale and to
grant a preliminary injunction if the plaintiff can show serious questions on the merits, balance of
hardships tipping sharply toward plaintiffs, a likelihood of irreparable injury and that the junction
is in the public interest. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1135 (9
th
Cir.
2011). Plaintiff has not met the preliminary injunction standard.
2. Plaintiff has not demonstrated a likelihood of success on the merits. NAVY
CHAIR and THE NAVY CHAIR are likely generic and therefore unprotectable. Filipino Yellow
Pages, Inc. v. Asian Journal Publ’ns, Inc., 198 F.3d 1143, 1146-1147 (9th Cir. 1999) (“A generic
term . . . . cannot become a trademark under any circumstances.”). Plaintiff’s asserted chair trade
dress is also likely generic and functional, and therefore unprotectable. Sunrise Jewelry Mfg.
Corp. v. Fred S.A., 175 F.3d 1322, 1323 (Fed. Cir. 1999) (“[W]e conclude that the registration of
an incontestable mark that is a product design may be cancelled if the mark is generic.”); Walker
& Zanger, Inc. v. Paragon Indus., Inc., 465 F. Supp. 2d 956, 961 (N.D. Cal. 2006) (“[G]eneric
product designs are unprotectible even upon a showing of secondary meaning.”);15 U.S.C.
§ 1115(b)(8) (incontestable trade dress registration subject to “defense[] or defect[]” that “the
mark is functional”).
3. Plaintiff has also not demonstrated a likelihood of success on the merits as
confusion between its asserted trade dress and trademarks and the phrases or chairs that appeared
on Restoration Hardware’s website and in Restoration Hardware’s catalog is unlikely. Surfvivor
Media, Inc. v. Survivor Prods., 406 F.3d 625, 629-30, 633 (9th Cir. 2005) (trademark
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[PROPOSED] ORDER DENYING PLAINTIFF’S MOTION FOR PRELIMINARY INJUNCTION
CASE NO. 3:12-CV-5072 MMC
3
sf-3219705
infringement claim requires likelihood of confusion, and survey showing less than 2% confusion
demonstrated “absence of significant confusion.”).
4. The phrases that appeared on Restoration Hardware’s website and in Restoration
Hardware’s catalog are likely protected by the defense of fair use. KP Permanent Make-Up, Inc.
v. Lasting Impression I, Inc., 543 U.S. 111, 124 (2004) (fair use defense available where term
used “descriptively, not as a mark, fairly, and in good faith.”).
5. Plaintiff has offered no evidence that it is likely to suffer irreparable harm in the
absence of an injunction. A showing of likely irreparable harm is required to obtain a preliminary
injunction. Winter, 555 U.S. at 20.
6. Plaintiff has not demonstrated that the balance of equities tips in its favor, nor has
it demonstrated that an injunction is in the public interest, which it is also required to show to
obtain an injunction. (Id.)
7. The Court finds that even when the Winter factors are considered using a sliding
scale as is permitted under Alliance for the Wild Rockies, 632 F.3d at 1135, the evidence that
Plaintiff offers does not support the granting of a preliminary injunction. Specifically, Plaintiff
has not shown that the balance of hardships tips sharply in its favor, has not offered any evidence
of irreparable harm, and has made an inadequate showing on the issue of public interest.
Moreover, Plaintiff has not shown that there are serious questions on the merits given the
potential deficiencies in its claim of trade dress and trademark rights, and the absence of evidence
on the likelihood of confusion factors.
IT IS SO ORDERED.

Dated: _______________________ ______________________________
Hon. Maxine M. Chesney
United States District Judge
Case3:12-cv-05072-MMC Document26-1 Filed11/16/12 Page3 of 3
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DECLARATION OF JASON EDELMAN
CASE NO. 3:12-CV-5072 MMC
sf-3218024
WESLEY E. OVERSON (CA SBN 154737)
[email protected]
JENNIFER LEE TAYLOR (CA SBN 161368)
[email protected]
NATHAN B. SABRI (CA SBN 252216)
[email protected]
JULIA D. KRIPKE (CA SBN 267436)
[email protected]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: 415.268.7000
Facsimile: 415.268.7522
Attorneys for Defendants
RESTORATION HARDWARE, INC. and GARY FRIEDMAN


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
EMECO INDUSTRIES, INC.,
Plaintiff,
v.
RESTORATION HARDWARE, INC., GARY
FRIEDMAN, and Does 1-10,
Defendants.
Case No. 3:12-cv-5072 MMC

DECLARATION OF JASON
EDELMAN


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DECLARATION OF JASON EDELMAN
CASE NO. 3:12-CV-5072 MMC
1
sf-3218024
I, Jason Edelman, declare:
1. I am a Senior Vice President of Indoor Furniture Merchandising at Restoration
Hardware, Inc. I am located at the corporate headquarters in Corte Madera. My job duties
include managing the assortment of furniture products for sale to the public. As part of my
regular job duties, I work with our vendors to make sure that our supply is adequate for customer
orders coming in through our website, stores, and call centers. I make the statements herein based
upon my personal knowledge and on records maintained in the ordinary course of business.
2. Restoration Hardware distributed the “Big Style, Small Spaces” catalogue to
roughly 8 million households in early September 2012. Thereafter, Emeco complained that the
“1940s Aluminum Naval Chair” violated its trademarks. Restoration Hardware initially took the
word “Naval” out of its description of the chairs on the Internet and renamed the chair “Standard
Aluminum Chair.” However, after letters were exchanged by each sides’ attorneys, Emeco filed a
lawsuit on October 1, 2012, alleging that the chairs still violated various rights. Within two days
thereafter, Restoration Hardware took action to stop marketing the chairs and halted the
production of further chairs. I was the point person at Restoration Hardware for managing that
process.
3. We track our sales and inventory using “SKU” numbers. A “SKU” or “stock-
keeping unit” is a unique number or code used to identify each product for sale in our stores,
catalogues, or websites. The SKU enables the company to track its inventory and product
availability in warehouses and retail outlets. Without a SKU on the system, a product may not be
sold through any of our sales channels. On October 3, 2012, Restoration Hardware restricted and
made inactive the SKU numbers for all of the aluminum chairs at issue in this case, including the
side chairs, the armchairs, the bar stools, and the counter stools. This prevented the sale of these
products from that point forward.
4. On October 3, 2012, I also instructed Kristin Kitterman, who heads up our call
centers, to tell the operators to stop accepting phone orders for the chairs. Additionally, I
instructed Jennifer Skiba, the person in charge of communicating from the corporate office to our
in-store sales staff, to halt sales efforts in our stores. None of these chairs ever made it into any
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DECLARATION OF JASON EDELMAN
CASE NO. 3:12-CV-5072 MMC
2
sf-3218024
stores. We adjusted the website so that no further orders could be made over the Internet. We
also promptly instructed customers that had already placed orders that the chairs were no longer
available. Customers had ordered a total of 640 chairs at that point. None of those chairs were
shipped to customers. All of these customers were told that the chair was no longer available.
5. Although no orders could be placed as of October 3, 2012, and it was no longer
offered for sale, we initially left the chair in photographs on our website that included other items
for sale, for example, a table. On October 11, 2012, we took the additional step of removing the
remaining photographs of the chair from the website.
6. Restoration Hardware also cancelled all orders with Amanson on October 3, 2012.
Attached as Exhibit 1 is a true and correct copy of an email cancelling Restoration Hardware’s
orders with Amanson, which I received on October 3, 2012.
7. We confirmed after the cancellation notice that Amanson stopped making the
chairs which Restoration Hardware had ordered and also confirmed that all finished inventory had
been shipped. Attached as Exhibit 2 is a true and correct copy of an email exchange with
Amanson, which I received on October 17, 2012.
8. Before we cancelled our purchase orders, Amanson had already manufactured
chairs and shipped them out on container ships bound for our distribution centers in
Essex/Baltimore, Maryland and in Mira Loma/Los Angeles, California. Amanson has informed
us of the order numbers that were shipped, and these orders covered a total of 4825 chairs. Prior
to the arrival of the shipments of these chairs in the United States, I alerted the heads of the
distribution centers that when the Amanson containers arrived, they should keep the chairs under
lock and key and not attempt to place them into our inventory that is available for shipment.
Additionally, so there were no doubts as to these instructions, on October 24, 2012, I followed up
with a more formal memorandum sent to all relevant personnel at the distribution centers.
Attached as Exhibit 3 is a true and correct copy of that memorandum.
9. So far, 2,416 Amanson chairs have arrived in the United States at the Restoration
Hardware distribution centers. There are 837 in the Baltimore distribution center and 1,579 in the
Los Angeles distribution center. I understand that there are currently four more containers of
Case3:12-cv-05072-MMC Document26-2 Filed11/16/12 Page3 of 4
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1
2 chairs at the port in Baltimore. These containers will be brought to our distribution center as soon
3 as possible.
4
10. All of the Amanson chairs that have arrived at our distribution centers are secured
5 in locked and sealed containers with signage making clear that they are not to be opened. The
6 keys are held by one person in each respective facility. Subsequent shipments will be handled in
7 the same fashion. Restoration Hardware has issued strict orders to the persons holding the keys
8 that they are not to release any of the chairs or check them into inventory, pending the outcome of
9 this case.
10
11. The style ofthe "1940s Naval Chair" is fairly common. Last weekend, I was at a
11 local mall called "Northgate" in San Rafael, California. The chairs in the food court of the mall
12 were in the same naval style as the ones in the Restoration Hardware catalogue. I turned a chair
13 over and saw a sticker that reflected that the chairs were made in China. Attached as Exhibit 4
14 are photographs from the food court. They are true, fair and accurate representations of the chairs
15 that I saw this past weekend.
16 I declare under penalty of perjury that the foregoing is true and correct and that this
17 declaration was executed by me this 15th day ofNovember 2012 in Corte Madera, California.
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DECLARATION OF JASON EDELMAN
CASE NO. 3:12-CV-5072 MMC
sf-3218024
3


EXHIBIT 1

Case3:12-cv-05072-MMC Document26-3 Filed11/16/12 Page1 of 2
Case3:12-cv-05072-MMC Document26-3 Filed11/16/12 Page2 of 2
From:
Sent:
To:
Cc:
Subject:
Attachments:
Dear Aian,
Bonnie Orofino [[email protected]]
Wednesday, October 03, 2012 4:09 PM
[email protected]
Fran Hamman; Mark A. Steiner; Jason Edelman
Amanson Group
Emeco v. RH Complaint. pdf
We are writing to inform you that on October 1, 2012 US. chair manufacturer Emeco Industries, Inc. filed a
lawsuit against Restoration Hardv•.rare, Inc. and Gary Friedman in lJ. S. federal district cou..rt in California w·ith
regard to the aluminum chairs you have supplied to us. As you can see in the attached copy of the Complaint,
Emeco alleges that the chairs are knockoffs of its "Navy Chair," and brings claims for unfair compent10n and
infringement of its trade dress and trademarks under U.S. federal and California state law, counterfeiting of its
trade dress and trademarks under US. federal law, and dilution of its trade dress and trademarks under US.
federal law We will need to cancel all pending orders with A manson Group while we investigate and respond
to Emeco's claims. Please confirm immediately that you \x.rill cancel these orders.
Thank you.
Very truly yours,
Bonnie Orofino
Chief1'v1erchandising Officer
Restoration Hardware
(415) 497-6740
CONFIDENTIAL REST00000186


EXHIBIT 2
Case3:12-cv-05072-MMC Document26-4 Filed11/16/12 Page1 of 5
Case3:12-cv-05072-MMC Document26-4 Filed11/16/12 Page2 of 5
iil7ii2 R H Maii- Amanson Purchase orders
Jason Edelman <[email protected]>
Amanson Purchase orders
Joseph Brody <[email protected]> Wed, Oct 17, 2012 at 5:39AM
To: Leah Reed <[email protected]>, Jason Edelman <[email protected]>, Karen
Johnson-Levitt <[email protected]>
Cc: Sarah Dashfield <[email protected]>, Fran Hamman <[email protected]>,
Stone Liu <stoneliu@restorationhardware_com>, Am anson Alan <alan@amanson_com>
Hi All,
FYI, Alan replied to my e-mail (see below) that as of September the factory already shipped orders:
PO#l352177
P0#1352181
P0#1352184
PO#l352187
PO#i372492
PO#i372493
Over the phone, he aiso confirmed with me that he received the notices for order canceiiation, and the factory
has stopped producing product for orders not iisted aiJove.
He aiso confirmed that there is no finished inventory of RH product in the factory, and none is being produced.
Raw materials were ordered for tr1e cancelled orders, but the factory will try to make use on other products.
Best,
Joseph Brody
https:l/mail.google.com/mail/?ui=2&ik=695d4778ce&view=pt&as_from=jbrody%40restorationhardware ..
CONFIDENTIAL REST00000355
1/4
Case3:12-cv-05072-MMC Document26-4 Filed11/16/12 Page3 of 5
iil7ii2 R H Maii- Amanson Purchase orders
Sourcing and Product Integrity Asia
www.restorationhardware.com
Mobile: +86 189 3069 0101
From: Amanson Alan [mailto:[email protected]]
Sent: \1\fednesday, October 17, 2012 6:13PM
To: RH D- Joseph Brody
Cc: RHD- stoneliu
Subject: FVV: Amanson Purchase orders
HI jos-eph Brody:
HJliTdi':;ct±:WriTJflPO#l352177, 1352181. 1352184, 1352187, 1372492, 1372493
2012-10-17
Best Regards
Alan
AMAI\'SOI\' GROUP
********* AMANSOr\ ':":":":'*****
AMA!I!SO!I! GROUP GO., LTD
E-Jv1AIL: [email protected]
:&itf'FA: .losepill>rody
Jltitlt.tliil: 2012-10-17 14:40
J&ft A : 'A manson Alan'
'Leah ReexJ; 'Jason Edelman'; 'Sarah Dashriehl'; 'Fran Hamm;m'; 'SLone Liu'; 'Karen Johnson-LevitL'
.±JIIIlJ : F\V: A manson Purchase orders
Hi Alan,
https:l/mail.google.com/mail/?ui=2&ik=695d4778ce&view=p1&as_from=jbrody%40restorationhardware ..
CONFIDENTIAL
2/4
REST00000356
Case3:12-cv-05072-MMC Document26-4 Filed11/16/12 Page4 of 5
iil7ii2 R H Maii- Amanson Purchase orders
Alan f!f</,i(
Nice to speak with you just novv.
The US office would like to confiim you have ieceived cancellation notices foi the Oideis belovv.
Piease aiso confirm that there is no finished product stiii in the factory. Finished product made for RH has
already aii been shipped to I<.H.
Cancelled Purchase orders 10.15.12
Store
I(AII); '"I
GROUP CO .. LTD '·rl
'I 52rlDI 13521a11
r 13s21fl4l
i3.5.21ll71
i352HJOI
13521931
H52196l
13521\l!ll
iJS€5221
13565261
135B5:m I
1356SJ21
1
I
I
I i 41
135..3;451
···············································································t
if you have any questions, feei free to be in touch.
Thanks for your help.
I
Total
I
MG
I
4(){}
1,.275
a9n
il5D
HQ
1.245
392
j ,303
B49
845
.>92
3..298
1,.298
}.g2
I
12:760
https:l/mail.google.com/mail/?ui=2&ik=695d4778ce&view=pt&as_from=jbrody%40restorationhardware ..
CONFIDENTIAL REST00000357
3/4
Case3:12-cv-05072-MMC Document26-4 Filed11/16/12 Page5 of 5
iil7ii2 R H Maii- Amanson Purchase orders
Best,
Joseph Biody
Restoration Hardware
Sourcing and Product Integrity Asia
www. restorationhardware.com
iviobile: +86 189 3069 0101
https:l/mail.google.com/mail/?ui=2&ik=695d4778ce&view=pt&as_from=jbrody%40restorationhardware .. 4/4
CONFIDENTIAL REST00000358


EXHIBIT 3
Case3:12-cv-05072-MMC Document26-5 Filed11/16/12 Page1 of 3
Case3:12-cv-05072-MMC Document26-5 Filed11/16/12 Page2 of 3
IMPORTANT NOTICE
TO: :Richard O'Donnell, V.P., Supply Chain Operations
Anthony Yucn, Director, Supply Chain Operations
Joe lVicCiure, Director of Customs and Internationai Transportation
Robert Forte, V.P. of Furniture Warehouses
Frank Quint, Director of Domestic Transportation
Mike McKay, Sr. V.P. of Supply Chain Operations
Paul Gargag!iano, Director of Distribution Center (Los A.nge!es)
Ken Dunaj, Chief Operating Officer
Rex Stratton, V.P. of Aiiocations
Glen Burger, V.P. of Transportation
FROM: Jason Edelman, Sr. Vice President Indoor Furniture Merchandising
OA Tli:: October 24, 2012
RE.: ."' .. !uminum Chairs Ordered from ,.\manson Group Co., Ltd.
Further to my instructions of October 3, 20i2, this is an important reminder notice to everyone
involved in the receipt of shipments and maintenance of inventory at the Distribution Centers
that all of the following items ordered from Amanson Group Co., Ltd. are restricted:
RH Ret"i) SKI I Item Nwnber rolor rone CW TTFM nescrintion
,:;:"')"')()(\1111 ,<:;"')"')(\(\11'2 ATTTl\Jf ATTTl\lf 1\.T A "\T t\ T AU l\ t1F'll A TD
V£...£...VV I I "T V£...LVVI IJ .'"\.LJ\...)1¥1 L1.LJU lVI L1.1'1.1VIV11.'1.11"-
62200113 62200113 BLK ALUl'vi NAVAL ARl'viCHAiR
62200115 62200113 WHT ALUM NAVAL ARMCHAIR
62200117 62200116 ALUM ALUM NAVAL BARSTOOL
62200116 62200116 BLK ALUM NAVAL BA_RSTOOL
62200119 62200116 \VHT .. LlJ1\1 1'JA\TAL BARSTOOL
,....-,....,....AAI,....,.... ,....-,....,....AAI,....A T T T1l. K T T T1l. ,- r'l.r'I.T T1l. T"T'T""Tl
U.L...L..VVl.L...L.. U.L...L..VVl.L..V 1"\.LUlVl ftLUlVl l '\J 1"\_ V ftL LVUl'\J l.CK
STOOL
62200120 62200120 BLK ALUM NAVAL COUNTER
STOOL
62200123 62200!20 WHT ALU!\1 NAVAL COUNTER
C'T'rt.r\T
>JLVV_L__:
CONFIDENTIAL REST00000353
Case3:12-cv-05072-MMC Document26-5 Filed11/16/12 Page3 of 3
62200125 62200124 ALUM ALUM NAVAL SIDE CHAIR
62200124 62200124 BLK ALUMNA VAL SIDE CHAIR
62200126 62200124 WHT ALUM NAVAL SIDE CHAIR
This 1neans that all inventory received from A1nanson for the above SKUs are to be:
• Kept quarantined at the Distribution Centers apart from other merchandise
• Labeled clearly "RESTRICTED INVENTORY: DO NOT SELL, DO NOT
DISTRIBUTE, DO NOT MOVE"
All quesrions are robe direcred rome personaiiy. The status of this inventory is not to be
changed without further notice from upper management of Restoration Hardware.
2
CONFIDENTIAL REST00000354


EXHIBIT 4

Case3:12-cv-05072-MMC Document26-6 Filed11/16/12 Page1 of 4
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DECLARATION OF ROBERT FORTE
CASE NO. 3:12-CV-5072 MMC
sf-3216963
WESLEY E. OVERSON (CA SBN 154737)
[email protected]
JENNIFER LEE TAYLOR (CA SBN 161368)
[email protected]
NATHAN B. SABRI (CA SBN 252216)
[email protected]
JULIA D. KRIPKE (CA SBN 267436)
[email protected]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: 415.268.7000
Facsimile: 415.268.7522
Attorneys for Defendants
RESTORATION HARDWARE, INC. and GARY FRIEDMAN


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
EMECO INDUSTRIES, INC.,
Plaintiff,
v.
RESTORATION HARDWARE, INC., GARY
FRIEDMAN, and Does 1-10,
Defendants.
Case No. 3:12-cv-5072 MMC

DECLARATION OF ROBERT
FORTE


Case3:12-cv-05072-MMC Document26-7 Filed11/16/12 Page1 of 3
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DECLARATION OF ROBERT FORTE
CASE NO. 3:12-CV-5072 MMC
1
sf-3216963
I, Robert Forte, declare:
1. I am employed at Restoration Hardware, Inc., and am responsible for all
operations at Restoration Hardware’s distribution centers, including the one in Essex, Maryland
near Baltimore, where I work on a daily basis. We regularly receive sea containers from the port
here in Baltimore. The sea containers are unloaded from ships and trucked from the port to our
facility in Essex for processing. We normally take inventory out of the shipping containers and
then enter the contents into our electronic inventory system indicating that the products are
available for shipment to customers.
2. On November 8, 2012, we received two sea containers of “1940s aluminum naval
chairs” from Amanson in China. Before the container arrived, we had been instructed to keep all
containers received from Amanson locked and not to accept any of the chairs into inventory.
3. On November 12, 2012, my staff moved the chairs from their original sea
containers to other secure land containers within our distribution center. I personally directed this
process and oversaw the sealing and locking of the inventory into the land containers.
4. As we transferred the inventory from sea containers to land containers, we kept a
record of how many chairs were in each container. A true and correct copy of this record of the
inventory is attached as Exhibit 1.
5. One of my direct reports, Andrew Beyea, holds the keys that open each of the
padlocks that were applied to the containers. He has been instructed not to open these containers
until receiving authorization from me to do so.
6. We are informed that there are 4 more containers of Amanson chairs at the port
here in Maryland. The inventory of these containers and any further shipments to arrive from
Amanson with “1940s aluminum naval chairs” will be handled in the same fashion as we handled
the earlier containers discussed above. We will unload them from their sea containers, and then
immediately load them into land containers with seals, signage, and padlocks, and only Mr.
Beyea will hold the keys to open them.

Case3:12-cv-05072-MMC Document26-7 Filed11/16/12 Page2 of 3
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I declare under penalty of perjury that the foregoing is true and correct and t ~ this
declaration was executed by me this it day of Jo U 2012 at { ~ . ':{'7 ~
Maryland.
DECLARATION OF ROBERT FORTE
CASE NO. 3:12-cv-5072 MMC
sf-3216963
2


EXHIBIT 1

Case3:12-cv-05072-MMC Document26-8 Filed11/16/12 Page1 of 2
BDC NAVAL Chair‐Quarantined BDC NAVAL Chair‐Quarantined
Container  Number CRXU9066516 Container  Number FSCU6635060
Units Unloaded UNITS CARTONS UNITS CARTONS
sku 62200124ALUM 200 110 62200113ALUM 45 45
sku 62200124BLK 220 110 62200113BLK 35 35
sku 62200124WHT 130 65 62200113WHT 25 25
62200116ALUM 24 24
62200116BLK 25 25
Units Loaded Onto Storage Trailer UNITS CARTONS 62200116WHT 20 20
sku 62200124ALUM 200 110 62200120ALUM 23 23
sku 62200124BLK 220 110 62200120BLK 25 25
sku 62200124WHT 130 65 62200120WHT 25 25
62200124ALUM 40 20
UNITS CARTONS
62200113ALUM 45 45
62200113BLK 35 35
62200113WHT 25 25
62200116ALUM 24 24
62200116BLK 25 25
62200116WHT 20 20
62200120ALUM 23 23
62200120BLK 25 25
62200120WHT 25 25
62200124ALUM 40 20
Storage Trailer Number 462 606
Seal Number 38555 38547
Seal,Lock and Quarantine Verified by  Andrew Beyea Andrew Beyea
Date 11/12/2012 11/12/2012
Case3:12-cv-05072-MMC Document26-8 Filed11/16/12 Page2 of 2
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DECLARATION OF PAUL GARGAGLIANO
CASE NO. 3:12-CV-5072 MMC
sf-3216960
WESLEY E. OVERSON (CA SBN 154737)
[email protected]
JENNIFER LEE TAYLOR (CA SBN 161368)
[email protected]
NATHAN B. SABRI (CA SBN 252216)
[email protected]
JULIA D. KRIPKE (CA SBN 267436)
[email protected]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: 415.268.7000
Facsimile: 415.268.7522
Attorneys for Defendants
RESTORATION HARDWARE, INC. and GARY FRIEDMAN


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
EMECO INDUSTRIES, INC.,
Plaintiff,
v.
RESTORATION HARDWARE, INC., GARY
FRIEDMAN, and Does 1-10,
Defendants.
Case No. 3:12-cv-5072 MMC

DECLARATION OF PAUL
GARGAGLIANO


Case3:12-cv-05072-MMC Document26-9 Filed11/16/12 Page1 of 3
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DECLARATION OF PAUL GARGAGLIANO
CASE NO. 3:12-CV-5072 MMC
1
sf-3216960
I, Paul Gargagliano, declare:
1. I am employed at Restoration Hardware, Inc. and am responsible for operations at
Restoration Hardware’s Mira Loma distribution center in Southern California. We regularly
receive sea containers from the port. The sea containers are unloaded from ships and trucked
from the port to Mira Loma for processing. We normally take inventory out of the shipping
containers and then enter the contents into our electronic inventory system indicating that the
products are available for shipment to customers.
2. On October 15, 2012, we received the first sea container of “1940s aluminum
naval chairs” from Amanson in China. Before the container arrived, we had been instructed to
keep all such containers from Amanson locked, and not to unload them or accept any of the chairs
into inventory.
3. On October 16, 2012, we received a second container of chairs from Amanson.
4. On October 22, we received a third container of chairs from Amanson.
5. All of the chairs that arrived at the Mira Loma distribution center remained
undisturbed in their sea containers through November 8, 2012, apart from one incident. On
October 16, 2012, one of my employees opened a container and began unloading it. This was
brought to my attention, and all of the chairs were placed back into the container. This was an
unacceptable error, and I apologized to my colleagues at the company headquarters for this
mistake. Attached as Exhibit 1 is a true and correct copy of an email I sent regarding this
incident.
6. Restoration Hardware does not own the sea containers themselves and must pay a
penalty for retaining them for an extended period. In order to return the sea containers to their
owner, on November 8, 2012, we moved the chairs from their original sea containers to other
secure land containers within our distribution center. I personally oversaw the sealing and
locking of the inventory into the land containers. Attached as Exhibit 2 are photographs of the
four containers where the Amanson chairs are secured. For each container, there is a photograph
from a distance showing the container number, and then a closer photograph showing the
padlock, the seal, and the signage on the door of the container. I personally took these
Case3:12-cv-05072-MMC Document26-9 Filed11/16/12 Page2 of 3
Case3:12-cv-05072-MMC Document26-9 Filed11/16/12 Page3 of 3
1
2 photographs, and they are true, accurate, and fair representations of the containers as they appear
3 today.
4
7. As we transferred the inventory from sea containers to land containers, we kept a
5 record of how many chairs were in each container. I created a summary of the Amanson
6 inventory received in Mira Lorna, which is attached as Exhibit 3.
7
8. I personally hold the key that opens each of the padlocks that were applied to the
8 containers. I will not open these containers until I receive authorization to do so.
9
9. Any futiher shipments to arrive from Amanson with "1940s aluminum naval
1 0 chairs" will be handled in the same fashion as we handled these past shipments. We will unload
11 them fi·om their sea containers, and then innnediately load them into land containers with seals,
12 signage, and padlocks, and only I will have the key to open them.
13
14
I declare under penalty of perjury that the foregoing is true and correct and that this
15 declaration was executed by me this J!j_ day of II o V
16 California.
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DECLARATION OF PAUL GARGAGLIANO
CASE No. 3: 12-CV-5072 MMC
sf-3216960
2012 at II: d-. iJ Am
2


EXHIBIT 1

Case3:12-cv-05072-MMC Document26-10 Filed11/16/12 Page1 of 4
Case3:12-cv-05072-MMC Document26-10 Filed11/16/12 Page2 of 4
From:
Sent:
To:
Paul Gargagliano [[email protected]]
Tuesday, October 16, 2012 10:01 AM
Mike MacKay
Cc: Jason Edelman; Kristin Sjoholm; Robert Forte; Bryan Hooper; Karen Johnson-Levitt; Leah
Reed; Jasper Davis
Subject: Re: Amanson
Team,
I apologize for the failure of receiving in these units. The items have been moved tram sellable inventory and
\-vill be located onto trailers today. I \vill have O\·vnership
of future loads for the }.Javal chairs and control of their flo\\r to LADC inventory.
Sincerely
Paul
On Tue, Oct 16, 2012 at 9:42AM, Mike MacKay <[email protected]> wrote:
Undcceptdble ... this is dn LA rec error.
Paul- please confirn1 that you will take full ownership go forward and not allow this to happen to any subsequent loads
irom this vendor.
Thanks-
Mike
From: Jason Edelman [mai!to:iede!man®restorationhardware.com]
Sent: Tuesday, October 16, 2012 9:10AM
To: Mike MacKay; Kristin Sjoho!m
Cc: Karen Johnson-Levitt; Leah Reed; Jasper Davis
Subject: F\A.'d: Amanson
Mike and Kristin,
It appears that a container from the chairs \Ve are being sued for, has been open and received.
We gave direction that these were to remain in the yard sealed. What happened?
CONFIDENTIAL REST00000248
Case3:12-cv-05072-MMC Document26-10 Filed11/16/12 Page3 of 4
Can you please cont1rm if any other containers were opened and that no more will be opened in the future.
Thank you.
Sent from my iPhone
Begin forwarded 1nessage.
From: Leah Reed <lreecl@restQLatiQnhardware.<:Qm>
Date: October 16, 2012 9 04:24AM PDT
'Tn• rnm>
U . ..
Cc: Karen Johnson-Levitt <klevitt@restorationhard\vare.com>
Subject: Re: Amanson
97, please be sure to put Kristin Sjoholm and Mike Me Kay on it, in case the de
received conflicting information from someone in supply chain
Leah Reed
V.P. Furniture Planning and Production
Furniture Restoration Hardware
(415) 945-3486
On Tue, Oct 16, 2012 at 9:01 AM, Jason Edelman <jedelman({1l.restorationhardware.corn> wrote:
Wtf Which de.
Please do not reach out to the vendor about anything.
Sent from my iPhone
On Oct 16, 2012, at 8:43 Karen Johnson-Levitt <[email protected]> vvrote:
I will address J's Q separately- but- can u confirm if there has been a change in
direction here as it sounds like de's broke contr seal and are rec'vg goods?
From: Jenae Spain .• ,.9ID]
Sent: Tuesday, October i6, 20i2 08:37 AM
To: Karen Johnson-Levitt <klevitteiilrestorationhardware.com>
CONFIDENTIAL REST00000249
Case3:12-cv-05072-MMC Document26-10 Filed11/16/12 Page4 of 4
Subject: Amanson
Hi Karen,
Who is the contact for Amanson? I got an email from the DC about a SKU they
received having a shortage of 6 units even though GTN shows shipped in full. I
just \Vanted to email the vendor to get the packing list so I can see \Vhat actually
shipped.
\Xlith Kind l?._cgards,
PLANNING COORDINATOR, TRICHANNEL FURNITURE
Restoration Hardware ! 415.945.4618
Paul Gargagliano- Director of Operation -LA Distribution Center
Ofc 951 332 3505 Cell 740 490 5127
CONFIDENTIAL REST00000250


EXHIBIT 2
Case3:12-cv-05072-MMC Document26-11 Filed11/16/12 Page1 of 9
Case3:12-cv-05072-MMC Document26-11 Filed11/16/12 Page2 of 9
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Case3:12-cv-05072-MMC Document26-11 Filed11/16/12 Page5 of 9
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EXHIBIT 3
Case3:12-cv-05072-MMC Document26-12 Filed11/16/12 Page1 of 3
LADC NAVAL Chair‐Quarantined 11/8/2012
Container  Number TCNU8037676 Container  Number BSIU9433729
Units Unloaded 250 units/250 cartons 554 units/277 cartons
sku 62200113ALUM 45 units/45 cartons 62200124ALUM 230 units/115 cartons
sku 62200113BLK 35 units/35 cartons 62200124BLK 194 units/97 cartons
sku 62200113WHT 25 units/25 cartons 62200124WHT 130 units/65 cartons
sku 62200116ALUM 25 units/25 cartons  
sku 62200116BLK 25 units/25 cartons
sku 62200116WHT 20 units/20 cartons
sku 62200120ALUM 25 units/25 cartons
sku 62200120BLK 25 units/25 cartons
sku 62200120WHT 25 units/25 cartons
Units Loaded Onto Storage Trailer 250 units/250 cartons 554 units/277 cartons
sku 62200113ALUM 45 units/45 cartons 62200124ALUM 230 units/115 cartons
sku 62200113BLK 35 units/35 cartons 62200124BLK 194 units/97 cartons
sku 62200113WHT 25 units/25 cartons 62200124WHT 130 units/65 cartons
sku 62200116ALUM 25 units/25 cartons
sku 62200116BLK 25 units/25 cartons
sku 62200116WHT 20 units/20 cartons
sku 62200120ALUM 25 units/25 cartons
sku 62200120BLK 25 units/25 cartons
sku 62200120WHT 25 units/25 cartons  
Storage Trailer Number 30672 28981
Seal Number 1925749 1925750
Seal,Lock and Quarantine Verified by  Paul Gargagliano Paul Gargagliano
Date 11/8/2012 11/8/2012
Padlock key is held by Paul Gargagliano. 
Both locks can only be opened by the same key.
Case3:12-cv-05072-MMC Document26-12 Filed11/16/12 Page2 of 3
LADC NAVAL Chair‐Quarantined 11/8/2012
Container  Number FCIU8719496 Container  Number TCLU5004563
Units Unloaded 375 units/250 cartons 400 units/250 cartons
sku 62200116ALUMTR 125 units/ 125 cartons 62200113ALUM 100 units/100 cartons
sku 62200124ALUMTR 250 units/125 cartons 62200124ALUM 100 units/50 cartons
62200124BLK 100 units/50 cartons
62200124WHT 100 units/50 cartons
Units Loaded Onto Storage Trailer 375 units/250 cartons 400 units/250 cartons
sku 62200116ALUMTR 125 units/ 125 cartons 62200113ALUM 100 units/100 cartons
sku 62200124ALUMTR 250 units/125 cartons 62200124ALUM 100 units/50 cartons
62200124BLK 100 units/50 cartons
62200124WHT 100 units/50 cartons
Storage Trailer Number 320083 36691
Seal Number 101552 101551
Seal,Lock and Quarantine Verified by  Paul Gargagliano Paul Gargagliano
Date 11/8/2012 11/8/2012
Padlock key is held by Paul Gargagliano. 
Both locks can only be opened by the same key.
Case3:12-cv-05072-MMC Document26-12 Filed11/16/12 Page3 of 3
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DECLARATION OF FRAN HAMMAN
CASE NO. 3:12-CV-5072 MMC
sf-3216953
WESLEY E. OVERSON (CA SBN 154737)
[email protected]
JENNIFER LEE TAYLOR (CA SBN 161368)
[email protected]
NATHAN B. SABRI (CA SBN 252216)
[email protected]
JULIA D. KRIPKE (CA SBN 267436)
[email protected]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: 415.268.7000
Facsimile: 415.268.7522
Attorneys for Defendants
RESTORATION HARDWARE, INC. and GARY FRIEDMAN


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
EMECO INDUSTRIES, INC.,
Plaintiff,
v.
RESTORATION HARDWARE, INC., GARY
FRIEDMAN, and Does 1-10,
Defendants.
Case No. 3:12-cv-5072 MMC

DECLARATION OF FRAN
HAMMAN


Case3:12-cv-05072-MMC Document26-13 Filed11/16/12 Page1 of 3
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DECLARATION OF FRAN HAMMAN
CASE NO. 3:12-CV-5072 MMC
1
sf-3216953
I, Fran Hamman, declare:
1. I am a Senior Vice President in charge of Sourcing at Restoration Hardware, Inc.,
a company that sells home furnishings through catalogues, the Internet, and over 70 retail stores.
My job duties include identifying manufacturers of furniture that will be sold at Restoration
Hardware, which does not own or operate any manufacturing facilities, but rather contracts with
third-party vendors for the manufacture of its merchandise. I make the statements herein based
upon my personal knowledge and on records maintained in the ordinary course of business.
2. Our sourcing strategy focuses on identifying and using vendors that can provide
the quality materials and craftsmanship that our customers expect of our brand, while still
offering value on the price. To ensure that our high standards of quality and timely delivery of
merchandise are met, we work closely with vendors and manufacturers, including those that are
located in China. We have personnel in China who work on a direct basis with vendors there.
3. In May of this year, our product team asked me to find manufacturers of new
products for a Fall catalogue, which eventually was named “Big style, small spaces.” Given the
timeline, we needed to find sources for scores of new products in an expedited fashion.
4. One of the new product lines included “mid-century modern” chairs to be included
in the new catalogue, and I asked one of our employees in China, Stone Liu, Senior Leader-
Sourcing and Product Integrity, to investigate manufacturers of such products. He visited two
possible manufacturers of metal chairs, Amanson and Xuda, at their factories in China, and had
each of them send exemplars of the chairs that they had in their existing line.
5. We eventually received metal chairs from Xuda and from Amanson in Corte
Madera and decided to include in our catalogue one of the aluminum exemplars that was in the
existing Amanson line. This chair was later described as the “1940s aluminum naval chair” in
our “Big style, small spaces” catalogue.
6. After negotiating the pricing, Restoration Hardware placed initial orders with
Amanson on July 13, 2012. Attached as Exhibit 1 is a true and correct copy of the first purchase
order that we sent to Amanson.
7. Restoration Hardware cancelled all orders with Amanson on October 3, 2012.
Case3:12-cv-05072-MMC Document26-13 Filed11/16/12 Page2 of 3
Case3:12-cv-05072-MMC Document26-13 Filed11/16/12 Page3 of 3
1
2 Attached as Exhibit 2 is a true and correct copy of an email cancelling Restoration Hardware's
3 orders with Amanson. I was copied on this letter and received it on October 3, 2012. Thereafter,
4 we also reconfirmed with Amanson that they received the cancellation and understood that they
5 should cease all further manufacturing of the product. Attached as Exhibit 3 is a true and correct
6 copy of an email exchange with Amanson confirming the cancellation of Restoration Hardware's
7 orders and the fact that all inventory had been shipped, which I received on October 17, 2012.
8
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8. Amanson chairs that were shipped prior to the cancellation of orders have begun to
arrive in the United States at the Restoration Hardware distribution centers. To my knowledge,
these chairs have been held in the distribution centers where they were shipped and have not been
released for sale to customers.
I declare under penalty of perjury that the foregoing is true and correct and that this
declaration was executed by me this 14th day ofNovember 2012 in Corte Madera, California.
DECLARA TJON OF FRAN HANNAM
CASE No. 3:12-cv-5072 MMC
sf-3216953
Frances Hamman
2


EXHIBIT 1

Case3:12-cv-05072-MMC Document26-14 Filed11/16/12 Page1 of 4
Case3:12-cv-05072-MMC Document26-14 Filed11/16/12 Page2 of 4
RESTORATION" HARDvV ARE
15 Koch Road, Suite J
C::ortR MnrRc1n, C::A
Phone: (415) 924,1005 Fax: (415) 927-9133
I RH MAIN
L_Purchase Order
Vendor#
17422
PO OrderDate
7/13/12 7/13/12
1
.Revision.# SbipVra
I
I
7 Ocean
I
t:ariiest ;-;;h_lppate LatSst·b_hlp Dafe_
I
I
9/15/12 9/20/12
ReVisiqn-'Date
L___ FURN CASE - MARK SVERDLiK
I Bill To:
!Restoration Hardware
115 Koch Road
!Suite J
!Corte Madera, CA 94925
I US United States
• -.. - . - -- .
Page 1 of 3
PO#:
I 13521771 L__.__.__.___ _______
Fl JRNITi iRF nc::'

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CONFIDENTIAL
REST00000275
Case3:12-cv-05072-MMC Document26-14 Filed11/16/12 Page3 of 4
Page 2 of 3
HARDvVARE
PO#:
I 13521771
15 Koch Road, Suite J
Corte C.A. 94925
Phone: (415) 924-1005 Fax: (415) 927-9133
Vendor#
17422
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CONFIDENTIAL REST00000276
Case3:12-cv-05072-MMC Document26-14 Filed11/16/12 Page4 of 4
RESTORATION" HARDvV ARE
15 Koch Road, Suite J
Corte Mareda, CA 94925
Phone: (415) 924"1005 Fax: (415) 927-9133
Vendor#
17422



PcnO., LTD

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Terms and Conditions:
!This is a Restoration Hardware Purchase Order. Refer to RH Vendor Operations Manual fori
Terms_ Fail.ure to may
I result 1n pen ames ana cnargeoacKs. uo nm accept mts t-'V umess you nave agreea,
1
executed and submitted the RH PO Terms and Conditions. Please confirm receipt of this
i!3mcltase 01de1 to t11e cunesootJdilla Buve1 a11d II tat t11e otoduct wills · · ·
I specified ship dates above. · - - · ·
'"Shipments past the Latest date shown will result in Vendor to be liable for penalties and Air
Freight ""Shipping 'v'Vindow is u·1e tirnefn:trne when the rnerchandise rnust be
delivered to the consolidator or in gated at the designated port
CONFIDENTIAL
Page 3 of 3
PO#:
I 13521771
lsuyro·':c'
I Restoration Hardware
115 Koch Road
1Sui1e J
)corte Madera, CA 94925
I US United States
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i 0/i tsii <:::
Total Units:
Total Dollars:
Hemarks I
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c=--33,o-66:6ooj
REST00000277


EXHIBIT 2
Case3:12-cv-05072-MMC Document26-15 Filed11/16/12 Page1 of 2
Case3:12-cv-05072-MMC Document26-15 Filed11/16/12 Page2 of 2
From:
Sent:
To:
Cc:
Subject:
Attachments:
Dear Aian,
Bonnie Orofino [[email protected]]
Wednesday, October 03, 2012 4:09 PM
[email protected]
Fran Hamman; Mark A. Steiner; Jason Edelman
Amanson Group
Emeco v. RH Complaint. pdf
We are writing to inform you that on October 1, 2012 US. chair manufacturer Emeco Industries, Inc. filed a
lawsuit against Restoration Hardv•.rare, Inc. and Gary Friedman in lJ. S. federal district cou..rt in California w·ith
regard to the aluminum chairs you have supplied to us. As you can see in the attached copy of the Complaint,
Emeco alleges that the chairs are knockoffs of its "Navy Chair," and brings claims for unfair compent10n and
infringement of its trade dress and trademarks under U.S. federal and California state law, counterfeiting of its
trade dress and trademarks under US. federal law, and dilution of its trade dress and trademarks under US.
federal law We will need to cancel all pending orders with A manson Group while we investigate and respond
to Emeco's claims. Please confirm immediately that you \x.rill cancel these orders.
Thank you.
Very truly yours,
Bonnie Orofino
Chief1'v1erchandising Officer
Restoration Hardware
(415) 497-6740
CONFIDENTIAL REST00000186


EXHIBIT 3
Case3:12-cv-05072-MMC Document26-16 Filed11/16/12 Page1 of 5
Case3:12-cv-05072-MMC Document26-16 Filed11/16/12 Page2 of 5
iil7ii2 R H Maii- Amanson Purchase orders
Jason Edelman <[email protected]>
Amanson Purchase orders
Joseph Brody <[email protected]> Wed, Oct 17, 2012 at 5:39AM
To: Leah Reed <[email protected]>, Jason Edelman <[email protected]>, Karen
Johnson-Levitt <[email protected]>
Cc: Sarah Dashfield <[email protected]>, Fran Hamman <[email protected]>,
Stone Liu <stoneliu@restorationhardware_com>, Am anson Alan <alan@amanson_com>
Hi All,
FYI, Alan replied to my e-mail (see below) that as of September the factory already shipped orders:
PO#l352177
P0#1352181
P0#1352184
PO#l352187
PO#i372492
PO#i372493
Over the phone, he aiso confirmed with me that he received the notices for order canceiiation, and the factory
has stopped producing product for orders not iisted aiJove.
He aiso confirmed that there is no finished inventory of RH product in the factory, and none is being produced.
Raw materials were ordered for tr1e cancelled orders, but the factory will try to make use on other products.
Best,
Joseph Brody
https:l/mail.google.com/mail/?ui=2&ik=695d4778ce&view=pt&as_from=jbrody%40restorationhardware ..
CONFIDENTIAL REST00000355
1/4
Case3:12-cv-05072-MMC Document26-16 Filed11/16/12 Page3 of 5
iil7ii2 R H Maii- Amanson Purchase orders
Sourcing and Product Integrity Asia
www.restorationhardware.com
Mobile: +86 189 3069 0101
From: Amanson Alan [mailto:[email protected]]
Sent: \1\fednesday, October 17, 2012 6:13PM
To: RH D- Joseph Brody
Cc: RHD- stoneliu
Subject: FVV: Amanson Purchase orders
HI jos-eph Brody:
HJliTdi':;ct±:WriTJflPO#l352177, 1352181. 1352184, 1352187, 1372492, 1372493
2012-10-17
Best Regards
Alan
AMAI\'SOI\' GROUP
********* AMANSOr\ ':":":":'*****
AMA!I!SO!I! GROUP GO., LTD
E-Jv1AIL: [email protected]
:&itf'FA: .losepill>rody
Jltitlt.tliil: 2012-10-17 14:40
J&ft A : 'A manson Alan'
'Leah ReexJ; 'Jason Edelman'; 'Sarah Dashriehl'; 'Fran Hamm;m'; 'SLone Liu'; 'Karen Johnson-LevitL'
.±JIIIlJ : F\V: A manson Purchase orders
Hi Alan,
https:l/mail.google.com/mail/?ui=2&ik=695d4778ce&view=p1&as_from=jbrody%40restorationhardware ..
CONFIDENTIAL
2/4
REST00000356
Case3:12-cv-05072-MMC Document26-16 Filed11/16/12 Page4 of 5
iil7ii2 R H Maii- Amanson Purchase orders
Alan f!f</,i(
Nice to speak with you just novv.
The US office would like to confiim you have ieceived cancellation notices foi the Oideis belovv.
Piease aiso confirm that there is no finished product stiii in the factory. Finished product made for RH has
already aii been shipped to I<.H.
Cancelled Purchase orders 10.15.12
Store
I(AII); '"I
GROUP CO .. LTD '·rl
'I 52rlDI 13521a11
r 13s21fl4l
i3.5.21ll71
i352HJOI
13521931
H52196l
13521\l!ll
iJS€5221
13565261
135B5:m I
1356SJ21
1
I
I
I i 41
135..3;451
···············································································t
if you have any questions, feei free to be in touch.
Thanks for your help.
I
Total
I
MG
I
4(){}
1,.275
a9n
il5D
HQ
1.245
392
j ,303
B49
845
.>92
3..298
1,.298
}.g2
I
12:760
https:l/mail.google.com/mail/?ui=2&ik=695d4778ce&view=pt&as_from=jbrody%40restorationhardware ..
CONFIDENTIAL REST00000357
3/4
Case3:12-cv-05072-MMC Document26-16 Filed11/16/12 Page5 of 5
iil7ii2 R H Maii- Amanson Purchase orders
Best,
Joseph Biody
Restoration Hardware
Sourcing and Product Integrity Asia
www. restorationhardware.com
iviobile: +86 189 3069 0101
https:l/mail.google.com/mail/?ui=2&ik=695d4778ce&view=pt&as_from=jbrody%40restorationhardware .. 4/4
CONFIDENTIAL REST00000358
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DECLARATION OF HAL PORET
CASE NO. 3:12-CV-5072 MMC

WESLEY E. OVERSON (CA SBN 154737)
[email protected]
JENNIFER LEE TAYLOR (CA SBN 161368)
[email protected]
NATHAN B. SABRI (CA SBN 252216)
[email protected]
JULIA D. KRIPKE (CA SBN 267436)
[email protected]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: 415.268.7000
Facsimile: 415.268.7522
Attorneys for Defendants
RESTORATION HARDWARE, INC. and GARY FRIEDMAN


UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
EMECO INDUSTRIES, INC.,
Plaintiff,
v.
RESTORATION HARDWARE, INC., GARY
FRIEDMAN, and Does 1-10,
Defendants.
Case No. 3:12-cv-5072 MMC

DECLARATION OF HAL PORET


Case3:12-cv-05072-MMC Document26-17 Filed11/16/12 Page1 of 4
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DECLARATION OF HAL PORET
CASE NO. 3:12-CV-5072 MMC
1

I, Hal Poret, declare:
1. I am a Senior Vice President at ORC International. I have personally designed,
supervised, and implemented over 450 consumer surveys concerning consumer perception,
opinion, and behavior. Over 150 of these surveys have concerned consumer perception regarding
trademarks and/or trade dress. I have personally designed numerous studies that have been
admitted as evidence in legal proceedings and I have been accepted as an expert in survey
research on numerous occasions by U.S. District Courts, the Trademark Trial and Appeal Board,
the FTC, and the National Advertising Division of the Council of Better Business Bureaus
(NAD).
2. I have frequently spoken at major intellectual property and legal conferences on
the topic of how to design and conduct surveys that meet legal evidentiary standards for
reliability, including conferences held by the International Trademark Association, American
Intellectual Property Law Association, Practicing Law Institute, Managing Intellectual Property,
Promotions Marketing Association, American Conference Institute, and various bar
organizations. In 2010, I published an article regarding trademark surveys in The Trademark
Reporter, a journal published by the International Trademark Association.
3. In addition to my survey research experience, I hold a B.S. from Union College, a
M.A. in Mathematics from S.U.N.Y. Albany, and a J.D. from Harvard Law School.
4. I understand that Emeco Industries, Inc. (“Emeco”) filed a lawsuit against
Restoration Hardware, Inc. (“Restoration Hardware”) and Gary Friedman alleging that a chair
advertised by Restoration Hardware infringes Emeco’s trade dress and trademark rights in
Emeco’s Navy Chair.
5. Restoration Hardware, through its counsel at Morrison & Foerster LLP, retained
me to design and conduct a survey to determine the extent to which, if at all, consumers who see
the accused Restoration Hardware chair would confuse it with Emeco’s Navy Chair or would
otherwise associate it with Emeco’s Navy Chair.
6. The methodology and results of the survey I conducted are detailed in the Expert
Report of Hal Poret in Matter of Emeco Industries, Inc. v. Restoration Hardware, Inc. et al. (the
Case3:12-cv-05072-MMC Document26-17 Filed11/16/12 Page2 of 4
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DECLARATION OF HAL PORET
CASE NO. 3:12-CV-5072 MMC
2

“Report”). Attached as Exhibit 1 is a true and correct copy of the Report and its appendices.
7. For the survey, a total of 301 actual and prospective consumers of Restoration
Hardware furniture participated in this online survey, primarily individuals with annual household
incomes of $200,000 and above. A total of 200 respondents participated in a Test Group. The
purpose of the Test Group was to determine the extent to which the type of consumer who would
look at furniture in a Restoration Hardware catalog or website would be likely to see the accused
Restoration Hardware chair and to associate it with Emeco’s Navy Chair or to mistakenly believe
the Restoration Hardware chair is made by, affiliated with, or authorized by Emeco (or the Navy
Chair).
8. The survey also included a Control Group of 101 respondents. The purpose of the
Control Group was to measure the level of survey noise, which would be subtracted from the Test
Group result. As it turned out, the Control Group was unnecessary because the Test Group
showed no more than a negligible level of association/confusion of the Restoration Hardware
chair with Emeco’s Navy Chair. Accordingly, there was no need to test for noise to discount the
Test Group result. The Control Group took the identical survey with the one exception that the
images of the Restoration Hardware chair were replaced with images of a Crate & Barrel Delta
Side Chair. This was an ideal control in that Emeco has identified the Delta Side Chair as an
example of a non-infringing alternative design to Restoration Hardware’s chair. There would
have been no reason to expand the Control Group beyond 101 respondents given that the Test
Group showed virtually zero association/confusion and that the Control Group result was also
virtually zero. Increasing the Control Group size would have had no impact on the reliability of
the survey.
9. I have summarized the key findings of the survey as follows:
a. Only 2 respondents in the Test Group (1%) associated the look of the
Restoration Hardware chair (when shown on its own) with Emeco or its Navy
Chair.
b. Only 2 respondents (the same two noted above) answered that they believe the
Restoration Hardware chair appearing in the catalog is made by, affiliated
Case3:12-cv-05072-MMC Document26-17 Filed11/16/12 Page3 of 4
Case3:12-cv-05072-MMC Document26-17 Filed11/16/12 Page4 of 4
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with, or authorized by Emeco or its Navy Chair. This represents a total
confusion level of 1 %. One other respondent may have confused the chair
with Emeco's Navy Chair, which would bring the confusion level to 1.5%.
c. No respondents in the Control Group mentioned Emeco or the Navy Chair. To
be conservative, no vague or ambiguous responses were interpreted as possibly
referring to Emeco. Accordingly, nothing is being subtracted from the Test
Group to account for survey noise.
d. Based on the 1% confusion rate (or maximum of I. 5% ), it is my opinion that
there is no more than a negligible likelihood that consumers who encounter the
accused Restoration Hardware chair will confuse it with or associate it with
Emeco's Navy Chair.
As explained more fully in the Report, based on the survey results, it is my opinion
14 that there is no more than a negligible likelihood that the Restoration Hardware chair will be
15 confused with Emeco or its Navy Chair. In addition, based on the survey results, it is my opinion
16 that there is no more than a negligible likelihood that the appearance of the chair in the
17 Restoration Hardware catalog will cause an association with Emeco' s Navy Chair.
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II. Attached as Appendix A to the Report are my curriculum vitae; a list of the cases
in which I have testified as an expert, either at trial or by deposition; a list of relevant
presentations I have given; a list of my publications, papers, and commentary; and a list of my
professional memberships and affiliations.
I declare under penalty of perjury that the foregoing is true and correct and that this
declaration was executed by me this lSth day ofNovember 2012 in ~ e w f ~ e w York.
DECLARATION OF HAL PO RET
CASE NO. 3: 12-cv-5072 MMC
Hal Poret
3
EXHIBIT 1
Case3:12-cv-05072-MMC Document26-18 Filed11/16/12 Page1 of 24










EXPERT REPORT OF HAL PORET IN MATTER OF
EMECO INDUSTRIES, INC. V.
RESTORATION HARDWARE, INC. ET AL.

*************************

SURVEY TO DETERMINE WHETHER THERE IS A LIKELIHOOD
THAT CONSUMERS WHO VIEW THE RESTORATION HARDWARE
ALUMINUM NAVAL CHAIR WILL CONFUSE IT OR ASSOCIATE IT
WITH EMECO’S NAVY CHAIR










REPORT PREPARED FOR:
Morrison & Foerster
Attorneys for Restoration Hardware, Inc. et al.

PREPARED BY:
Hal Poret
ORC International
625 Avenue of the Americas
New York, NY 10011



November 2012
Case3:12-cv-05072-MMC Document26-18 Filed11/16/12 Page2 of 24


TABLE OF CONTENTS



Page #

BACKGROUND AND PURPOSE ------------------------------------------------ 1
STUDY AUTHORSHIP AND RESPONSIBILITY ----------------------------- 2
STUDY DESIGN ---------------------------------------------------------------------- 3
SUMMARY OF KEY FINDINGS -------------------------------------------------- 11
METHODOLOGY -------------------------------------------------------------------- 12
THE RELEVANT UNIVERSE OF INTEREST ------------------------- 12
SAMPLING PLAN ---------------------------------------------------------- 13
DOUBLE-BLIND INTERVIEWING ------------------------------------- 16
INTERVIEWING PROCEDURES ---------------------------------------- 16
DATA PROCESSING ------------------------------------------------------- 16
INTERVIEWING PERIOD ------------------------------------------------- 16
VALIDATION/QUALITY CONTROL --------------------------------- 16
DETAILED FINDINGS -------------------------------------------------------------- 17
CONCLUSIONS ---------------------------------------------------------------------- 21

APPENDIX A: CURRICULUM VITAE OF STUDY’S AUTHOR
APPENDIX B: QUESTIONNAIRES/INSTRUCTIONS
APPENDIX C : SURVEY DATA

Case3:12-cv-05072-MMC Document26-18 Filed11/16/12 Page3 of 24

Page
1
BACKGROUND AND PURPOSE

Emeco Industries, Inc. (“Emeco”) makes a chair it calls the Navy Chair. Emeco sells the
Navy Chair for over $400. Restoration Hardware, Inc. (“Restoration Hardware”)
advertised chairs, at a price of $129, next to the following language: 1940s Aluminum
Naval Chair. Emeco has filed a lawsuit against Restoration Hardware and Gary
Friedman alleging that the Restoration Hardware Aluminum Naval Chair infringes
Emeco’s trade dress and trademark rights in its Navy Chair. Emeco alleges that
consumers who see the Restoration Hardware chair, along with the description “Naval
Chair,” will confuse it with Emeco’s Navy Chair. Aside from its trade dress/trademark
infringement argument, Emeco also appears to allege that it will be harmed because
consumers will see that an alternative to Emeco’s Navy Chair is available at Restoration
Hardware for $129 and will thereafter be less likely to pay over $400 for Emeco’s chair.
Restoration Hardware is not currently selling the challenged chair in stores and has
removed it from its website and online catalog. The chair did appear in Restoration
Hardware catalogs that were distributed in hard copy.

Restoration Hardware, through its counsel Morrison & Foerster LLP, has retained me to
design and conduct a survey to determine the extent to which, if at all, consumers who
see the accused Restoration Hardware chair would confuse it with Emeco’s Navy Chair
or would otherwise associate it with Emeco’s Navy Chair. This report details the
methodology and results of the survey.

The fee charged for the design and conduct of the survey and preparation of this report
is $50,000. Additional time spent in connection with this matter will be billed at my
ordinary rate of $500/hr. In the course of designing this survey and preparing this
report I reviewed the following materials: (1) Complaint; (2) Blavin Declaration; (3)
Buchbinder Declaration; (4) Motion for Preliminary Injunction; (5) Emeco’s website; (6)
Restoration Hardware website (including online catalogs); (7) Restoration Hardware
catalogs; (8) Crate & Barrel website; (9) Restoration Hardware Customer Metrics report;
(10) Restoration Hardware household income demographic data.
Case3:12-cv-05072-MMC Document26-18 Filed11/16/12 Page4 of 24

Page
2
STUDY AUTHORSHIP AND QUALIFICATIONS
This study was designed, supervised, and implemented by ORC International under
the supervision of Hal L. Poret, Senior Vice President.

I have personally designed, supervised, and implemented over 450 consumer surveys
concerning consumer perception, opinion, and behavior. Over 150 of these surveys
have concerned consumer perception regarding trademarks and/or trade dress. I have
personally designed numerous studies that have been admitted as evidence in legal
proceedings and I have been accepted as an expert in survey research on numerous
occasions by U.S. District Courts, the Trademark Trial and Appeal Board, the FTC, and
the National Advertising Division of the Council of Better Business Bureaus (NAD).

I have frequently spoken at major intellectual property and legal conferences on the
topic of how to design and conduct surveys that meet legal evidentiary standards for
reliability, including conferences held by the International Trademark Association
(INTA), American Intellectual Property Law Association, Practicing Law Institute,
Managing Intellectual Property, Promotions Marketing Association, American
Conference Institute, and various bar organizations. In 2010, I published an article
regarding trademark surveys in The Trademark Reporter, a journal published by the
International Trademark Association.

In addition to my survey research experience, I hold bachelors and masters degrees in
mathematics and a J.D. from Harvard Law School. Additional biographical material,
including lists of testimony and publications, is provided in Appendix A.
Dated: November 15, 2012
Case3:12-cv-05072-MMC Document26-18 Filed11/16/12 Page5 of 24

Page
3
STUDY DESIGN

A total of 301 actual and prospective consumers of Restoration Hardware furniture
participated in this online survey, primarily individuals with annual household
incomes of $200,000 and above.
1


A total of 200 respondents participated in a Test Group.
2
The purpose of the Test
Group was to determine the extent to which the type of consumer who would look at
furniture in a Restoration Hardware catalog or website would be likely to see the
accused Restoration Hardware chair and to associate it with Emeco’s Navy Chair or to
mistakenly believe the Restoration Hardware chair is made by, affiliated with, or
authorized by Emeco (or the Navy Chair).

Respondents were first instructed as follows:

In a moment, you are going to be shown images of a chair. Please take your time
to look at the chair as you would if you were shopping and saw this chair in a
catalog, on a website or in a store.

You will then be asked some questions. If for any question, you don’t know or
have no opinion, please indicate so. Please do not guess.

If for any question you are unable to clearly see the image of the chair, please
indicate so.


1
See Relevant Universe and Sampling sections below for additional detail on the respondents
who participated in the survey. As discussed in more detail below, heavily focusing the survey
on respondents with incomes of $200,000 and above favored Emeco in that respondents with
higher incomes would be more likely to be prospective purchasers of Emeco’s Navy Chair and
more likely to be familiar with Emeco’s Navy Chair.
2
200 was more than sufficient as a sample size to produce reliable results. As discussed below,
the rate of association/confusion of the chair with Emeco's Navy Chair was negligible.
Accordingly, an increase in sample size would not have increased the reliability of the results.
Case3:12-cv-05072-MMC Document26-18 Filed11/16/12 Page6 of 24

Page
4
Respondents were then shown the following image of the Restoration Hardware chair:
3




This image was taken from the actual Restoration Hardware catalog. This image was
also used in Emeco’s pleadings as representative of the look of the Restoration
Hardware chair and to illustrate how Emeco believes it would be confused with
Emeco’s Navy Chair.

3
For all images shown in the survey, respondents were given a response option to indicate if
they could not view the image clearly. Any respondent who could not view all images clearly
was terminated.
Case3:12-cv-05072-MMC Document26-18 Filed11/16/12 Page7 of 24

Page
5

With this image of the chair on the screen, respondents were then asked:

Do you associate the overall look of this chair with any particular company or
brand of chair or do you not?

Respondents who answered that they associate the overall look of the chair with any
company or brand were then asked:

With what company or brand of chair do you associate the overall look of this
chair?

Respondents who named a company or brand were asked what makes them associate
the overall look of the chair with that company or brand. Respondents who did not
name a company or brand were instead asked why they answered that they associate
the overall look of the chair with a particular company or brand of chair. This gave
respondents an opportunity to express that they associate the look of the chair with
Emeco’s Navy Chair even if they do not know the name Emeco or do not know of
“Navy Chair” as a brand name.

The purpose of this initial question series was to test the extent to which respondents
would associate the look of the Restoration Hardware chair with Emeco or its Navy
Chair even when seen outside the context of a Restoration Hardware catalog or web
page. This question gave respondents an opportunity to express that they associate the
look of the chair with Emeco or its Navy Chair, whether or not they actually believed
the chair shown was Emeco’s chair.

All respondents were then shown the pages from the Restoration Hardware catalog
advertising the accused aluminum naval chair and were asked questions to test for
confusion. Showing respondents the actual Restoration Hardware catalog pages was an
Case3:12-cv-05072-MMC Document26-18 Filed11/16/12 Page8 of 24

Page
6
ideal replication of marketplace conditions. Since the Restoration Hardware chair is not
in stores and has not been sold, the primary way (and perhaps the only way) consumers
would see the chair is in the catalog (or on the website prior to it being removed).
Emeco’s primary argument is that it will be harmed by the distribution of the catalog
containing the chair. Accordingly, testing perception of the chair in the context of the
catalog simulates the manner in which real consumers would encounter it and directly
tests Emeco’s allegation.

Specifically, respondents were instructed:

We are now going to show you two pages from a Restoration Hardware catalog
showing the same chair that you just looked at. Please take your time to look at
the two catalog pages of the chair as you ordinarily would if you were looking at
a Restoration Hardware catalog. If you cannot clearly see either catalog page,
please indicate so.

It was appropriate and necessary to instruct respondents that the pages they were being
shown are from a Restoration Hardware catalog, as actual consumers encountering the
pages would clearly be aware they were looking at the catalog.

Respondents were then shown the first of the catalog pages showing the accused chair:
4



4
Images shown in this report necessarily appear smaller to fit on a page. Images shown in the
survey were larger and consistent with the size of catalog and web pages.
Case3:12-cv-05072-MMC Document26-18 Filed11/16/12 Page9 of 24

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7


Respondents were then instructed:

Here is the first catalog page showing the same chair that you already looked at.
Please take your time to look at it.

Respondents were then shown the second page from the catalog showing the accused
chair:

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8


Respondents were then instructed:

Here is the second catalog page showing the same chair. Please take your time to
look at it.

Respondents were then asked:

Do you have any opinion about what company or brand makes the chair you just
saw images of?

Respondents who answered in the affirmative were then asked:

What company or brand do you believe makes the chair?
Please identify the company or brand you are thinking of as specifically as possible, or
select “don’t know” if you do not know.

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9
Respondents who named a company or brand were asked what makes them believe the
chair is made by that company or brand. Respondents who did not name a company or
brand were instead asked what made them answer that they have an opinion about
what company makes the chair. As noted earlier, this gave respondents an opportunity
to express an opinion about the source of the chair even if they do not know the names
“Emeco” or “Navy Chair.”

All respondents were next asked:

Do you believe the chair you saw images of is affiliated with or authorized by
any company or brand that you are aware of, or do you not?

Respondents who answered in the affirmative were next asked:

What other company or brand do you believe the chair is affiliated with or
authorized by?

Respondents who named a company or brand were asked what makes them believe the
chair is affiliated with or authorized by that company or brand. Respondents who did
not were asked what made them answer that they believe the chair is affiliated with or
authorized by a company or brand that they are aware of.

The survey also included a Control Group of 101 respondents. The purpose of the
Control Group was to measure the level of survey noise, which would be subtracted
from the Test Group result. As it turned out, the Control Group was unnecessary
because the Test Group showed no more than a negligible level of
association/confusion of the Restoration Hardware chair with Emeco’s Navy Chair.
Accordingly, there was no need to test for noise to discount the Test Group result. The
Control Group took the identical survey with the one exception that the images of the
Restoration Hardware chair were replaced with images of a Crate & Barrel Delta Side
Case3:12-cv-05072-MMC Document26-18 Filed11/16/12 Page12 of 24

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10
Chair. This was an ideal control in that Emeco has identified the Delta Side Chair as an
example of a non-infringing alternative design to Restoration Hardware’s chair.
5
There
would have been no reason to expand the Control Group beyond 101 respondents
given that the Test Group showed virtually zero association/confusion and that the
Control Group result was also virtually zero. Increasing the Control Group size would
have had no impact on the reliability of the survey.

5
See Appendix for images shown to the Control Group.
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11
SUMMARY OF KEY FINDINGS

1) Only 2 respondents in the Test Group (1%) associated the look of the Restoration
Hardware chair (when shown on its own) with Emeco or its Navy Chair.
2) Only 2 respondents (the same two noted above) answered that they believe the
Restoration Hardware chair appearing in the catalog is made by, affiliated with,
or authorized by Emeco or its Navy Chair. This represents a total confusion level
of 1%. One other respondent may have confused the chair with Emeco’s Navy
Chair, which would bring the confusion level to 1.5%.
3) No respondents in the Control Group mentioned Emeco or the Navy Chair. To
be conservative, no vague or ambiguous responses were interpreted as possibly
referring to Emeco. Accordingly, nothing is being subtracted from the Test
Group to account for survey noise.
4) Based on the 1% confusion rate (or maximum of 1.5%), it is my opinion that there
is no more than a negligible likelihood that consumers who encounter the
accused Restoration Hardware chair will confuse it with or associate it with
Emeco’s Navy Chair.

See Detailed Findings section below for additional information on results. The full data
(Appendix C) will be provided in its original electronic form.
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12
METHODOLOGY

THE RELEVANT UNIVERSE OF INTEREST

Since the universe of consumers who might see the Restoration Hardware chair
overwhelmingly consists of individuals who would might shop for furniture at
Restoration Hardware (either through the catalog, website or store), the universe for the
survey consisted of individuals who: (1) have personally shopped for furniture within
the past 2 years at Restoration Hardware; and/or (2) are likely to personally shop for
furniture in the next two years and are likely to shop at Restoration Hardware the next
time they shop for furniture. Respondents were excluded from the survey if they or
anyone in their household work in either advertising or market research or for a
company or store that sells furniture.

The actual wording of the screening questions used is shown in Appendix B.

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13
SAMPLING PLAN

The sampling plan involved random selection of consumers who are part of an online
panel. Online surveys are well-accepted in the field of survey research as a standard,
reliable methodology. Indeed, online surveys are now the most common method of
conducting market research among consumers. Businesses and other organizations
routinely make decisions of importance based on the results of online survey research,
and online surveys have been accepted in evidence in numerous U.S. District Court and
Trademark Office proceedings. I have personally designed and executed numerous
internet surveys that have been accepted by courts.

The sample of panelists used in the survey was provided by Research Now, a leading
supplier of online sample for surveys. Respondents were required to take the survey on
a desktop or laptop computer and were excluded if attempting to take the survey on a
tablet, mobile phone or other mobile electronic device so that the images of the marks
would appear sufficiently large and so that respondents would be focused on the
survey.

An online methodology was particularly ideal in this scenario for several reasons. First,
an online survey is a standard and appropriate way to present catalog pages. Seeing
the catalog pages on a computer screen is a standard and reliable simulation of how
respondents would see the pages in an actual catalog, whether in hard copy or online.
The actual chairs are not in stores and were not sold to consumers, so virtually 100% of
consumer exposure will be to images rather than the physical chair. Second, an online
survey was an ideal way to get through to consumers with higher incomes who would
be likely to be actual and prospective consumers of the relatively expensive furniture in
the Restoration Hardware catalog (and would also be the most likely to have familiarity
with the $400+ Emeco Navy Chair.)

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14
It is my understanding that Restoration Hardware’s furniture is targeted at consumers
with annual household incomes of $200,000 and above but I also reviewed data
showing that Restoration Hardware also has significant percentages of furniture
consumers with lower incomes. Since the Emeco Navy Chair is a very expensive
product (over $400), Restoration Hardware customers with incomes over $200,000
would presumably be the most likely to be a potential customer of Emeco and be aware
of Emeco’s Navy Chair. For that reason, I believe it was erring in Emeco’s favor to
heavily draw the survey universe from this income group. Focusing the survey on the
set of Restoration Hardware customers who would be most likely to know the Emeco
Navy Chair allowed us to measure the likelihood of confusion (or association) in the
market segment where it would be expected to be highest. The following is the
breakdown of survey respondents based on household income level.

INCOME LEVEL %
$100,000 to $149,999 2%
$150,000 to $199,999 12%
$200,000 to $249,999 33%
$250,000 to $299,999 30%
$300,000 or over 24%

It is also my understanding that Restoration Hardware’s furniture is targeted to the 45
to 64 age group, but that Restoration Hardware has customers in all age groups. The
following shows the age and gender breakdown of participants in the survey:

Age %
25-44 33%
45-64 50%
65+ 17%


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15
Gender %
Female 56%
Male 44%

I also consulted data regarding the geographic locations where Restoration Hardware
has the greatest numbers of consumers. As the catalog is distributed nationally (and the
website is of course available nationally), the survey invitations were generally
distributed in a nationally representative fashion. Survey invitations were distributed
in somewhat greater percentages to the following markets, which have the highest
percentages of Restoration Hardware consumers:

NewYork
Los Angeles
Washington DC
Chicago
Connecticut
Boston
Philadelphia, PA
Dallas-Ft Worth, TX
New Jersey
Atlanta, GA
South Bay
Orange County
Miami-Ft. Lauderdale, FL
East Bay
Houston, TX

The precise breakdown of the survey universe among various age, gender, income, and
geographical groups was immaterial as the levels of associating or confusing the
Restoration Hardware chair with Emeco’s Navy Chair was negligible among all groups.
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16


DOUBLE-BLIND INTERVIEWING
It is important to point out that the study was administered under “double-blind”
conditions. That is, not only were the respondents kept uninformed as to the purpose
and sponsorship of the study, but the services involved in providing the sample and
administering the online interviews were similarly “blind” with respect to the study’s
purpose and sponsorship.

INTERVIEWING PROCEDURES
The online survey was programmed and hosted by Decipher, Inc., a company
specializing in web survey programming and data collection and processing. I
thoroughly tested the programmed survey prior to any potential respondents receiving
the invitation to participate in the survey.

DATA PROCESSING
Data was collected by Decipher and made available to ORC International through an
electronic portal on an ongoing basis. The data set showing each respondent’s answers
to all questions will be provided in electronic form.

INTERVIEWING PERIOD
Interviewing was conducted from October 25, 2012 through November 1, 2012.

VALIDATION/QUALITY CONTROL

Respondents were asked several validation/quality control questions. Respondents
were required to enter their date of birth to enter the survey and the date needed to
match the birth date of the panelist in order to ensure the identity of the respondent.
Additionally, respondents were instructed to select the answer choice “South” out of
four choices of directions to continue. These questions permitted us to screen out
respondents who were paying insufficient attention to the survey.
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DETAILED FINDINGS

Association of the look of the chair with Emeco’s Navy Chair

When initially shown the Restoration Hardware chair and asked whether they associate
the overall look of the chair with any company or brand of chair, only 2 respondents
(1%) answered in the affirmative and named Emeco.
6


One other respondent (#617) answered that it is a Restoration Hardware chair
“modeled on the Navy Chair.” This respondent explained that they believed this
because they had read about the lawsuit against Restoration Hardware. This
respondent also indicated that they believed it was the Navy that had filed a complaint
against Restoration Hardware. Based on these answers it is clear that this is not an
instance of a consumer who genuinely associated this look with Emeco’s Navy Chair
but rather an instance of publicity surrounding the lawsuit having caused a consumer
to believe the Restoration Hardware chair is modeled on a different chair.

One other respondent (#608) answered that they associated the look of the chair with
one company or brand but did not know which one. The respondent indicated they
had seen the chair before. This raises some possibility they could have been thinking of
Emeco’s Navy Chair. On the other hand, this respondent subsequently answered that
they believe the chair is affiliated with Crate & Barrel because they saw it in a catalog,
which suggests the chair they had seen before is a Crate & Barrel chair and not Emeco’s
chair.

No other respondents gave any answers reflecting any belief that the overall look of the
Restoration Hardware chair shown is in any way associated with Emeco or its Navy
Chair.


6
Respondents 434 and 1205.
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A total of 33 other respondents answered that they associated the look of the chair with
Restoration Hardware even prior to being told that the chair was in a Restoration
Hardware catalog. Most of these respondents gave answers indicating that they found
the style of the chair to be consistent with the style of Restoration Hardware furniture.
There were also 25 respondents who associated the look of the chair with Crate &
Barrel, Pottery Barn, and/or Ikea. Combined without duplication, this represents 57
respondents who found the look of the chair consistent with what they would expect
from furniture from these stores and gave no indication they associated the look with
any other source or chair.

There were also four respondents who answered that they associate the chair with
Design Within Reach. As it is my understanding that Design Within Reach sells
Emeco’s Navy Chair, I considered these respondents’ verbatims individually.

One of the respondents (#557) answered that they had read about a legal controversy
with Restoration Hardware over a knock-off of a Design Within Reach chair. This
respondent cannot be classified as confused because their association of the chair with
Design Within Reach is due to publicity surrounding the lawsuit.

Another of the respondents that associated the chair with Design Within Reach (#1634)
answered that “they do a Navy side chair like this, although there are cheaper
knockoffs from Target.” This respondent also later answered that the chair was
authorized because “others have done it before.” This respondent seems to view “Navy
Chair” as a style of chair and not a brand and to believe that a variety of sources have
made chairs of that type. Accordingly, it would not be appropriate to count them as
viewing the chair design as a trademark of, or confusing the chair with, any single
source.

Respondent 1367 answered that they have seen this chair in Design Within Reach’s
catalogue and respondent 1402 answered that the chair has an edgy industrial style they
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19
associate with Design Within Reach. It is possible that these respondents associated the
chair with Design Within Reach due to having seen Emeco’s Navy Chair at Design
Within Reach, which would mean there is an additional 1% association with Emeco. On
the other hand, two control group respondents (2%) also answered that they associate
the Crate & Barrel Delta chair with Design Within Reach. Accordingly, the Test Group
rate of mentioning Design Within Reach is equivalent to the Control Group rate and
should be negated as survey noise.

Office Depot, Officedesigns.com, Room & Board, the Door Store, and MacDonalds were
also mentioned by one respondent each.

The remaining 133 respondents did not associate the look of the chair with any
company or brand.

In sum, 1% of the 200 Test Group respondents associated the look of the Restoration
Hardware chair with Emeco with a small possibility of that number rising to 1.5% if
respondent #608 is counted.

Confusion of the chair with Emeco or Navy Chair

When shown the Restoration Hardware catalog images and asked if they had an
opinion about the maker of the chair or if they believed the chair was affiliated with or
authorized by any other company or brand, two respondents (1.0%) identified Emeco --
the same two respondents who had already mentioned Emeco in the initial association
question.

One other respondent gave an answer that might possibly indicate confusion.
Respondent #143 answered that they have an opinion about who makes the chair but
then answered that they did not know what company or brand makes it. They
answered that they had an opinion about the maker because the catalog page had the
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20
name “naval.” Although this respondent had not previously indicated they associate
the look of the chair with any company or brand when first shown the chair, it is
possible that the reference to “naval” indicates that they are thinking of Emeco’s Navy
Chair. It is also possible the respondent was thinking of the Navy or just guessing. If
this respondent was assumed to be confused, the confusion level would go up to 1.5%.

There were also two respondents who associated the chair with Restoration Hardware
and did not indicate confusion but did express a belief that the chair was a version of a
more expensive chair. Respondent 724 answered that the chair is made by Restoration
Hardware but also commented that it “looks like the other” and that it is a “copy of a
more expensive chair.” Respondent 976 answered that “I think it is a good knockoff
chair but not as classy and expensive looking as the first one.” This respondent also
answered they think the chair is affiliated with or authorized by “World Market”
because they carry some good knock-off chairs. Although they did not name Emeco or
the Navy Chair, it is possible that these respondents’ verbatim comments indicate that
they were thinking of Emeco’s Navy Chair. As they never named Emeco or “Navy
Chair,” it is also possible they were thinking of other chairs or generally commenting on
a style of chair. In either case, they were not confused, as they clearly stated that they
thought the Restoration Hardware chair was a copy of another chair, not that it was
actually made by, affiliated with, or authorized by the maker of another chair. If these
respondents are assumed to have been thinking of Emeco’s Navy Chair, it would not
increase the confusion level but it would increase the percentage that associated the
look of the Restoration Chair with Emeco’s Navy Chair to 2.0% (or 2.5%) if respondent
608 were also counted).

There were also two other respondents who mentioned the Navy, but were clearly
referring to the military entity and not Emeco. Respondent 1037 answered that the
chair was made by “Navy” because it was “named this in the ad.” Respondent 624
named Restoration Hardware and specified that they did not think “the Navy would
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21
have to authorize a naval chair.” There is no indication either of these respondents
were thinking of Emeco’s Navy Chair.

There was also one respondent (#1869) who answered that the chair was authorized by
Design Within Reach (which sells the Emeco chair) and answered that their office has
the chairs. However, this respondent also initially answered that they associate the
chair with Crate & Barrel. Accordingly, it appears that this respondent was generally
naming stores that have furniture of this style rather than indicating a belief that Emeco
authorized the chair.
7


No other respondents gave any answers indicating that they might be confused or that
they were otherwise thinking of Emeco’s Navy Chair.

In sum, the confusion rate was in the range of 1.0% to 1.5%.

CONCLUSION

Based on the survey results (1.0% confusion or 1.5% at most), it is my opinion that there
is no more than a negligible likelihood that the Restoration Hardware chair will be
confused with Emeco or its Navy Chair. In addition, based on the low rate of
Restoration Hardware furniture customers associating the look of the accused chair
with Emeco’s Navy Chair (1.0% or 2.5% at most), it is my opinion that there is no more
than a negligible likelihood that the appearance of the chair in the Restoration
Hardware catalog will cause an association with Emeco’s Navy Chair.

7
A second respondent (#1367) who had mentioned Design Within Reach in the first question
and was already discussed above also repeated “DWR” in the authorization question. It was
already noted above that this respondent could possibly represent an additional instance of
association/confusion, although the Control Group instances of naming Design Within Reach
would then also need to be counted, which would negate any increase in confusion levels.
Case3:12-cv-05072-MMC Document26-18 Filed11/16/12 Page24 of 24


APPENDIX A

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APPENDIX A

CURRICULUM VITAE OF STUDY’S AUTHOR






Case3:12-cv-05072-MMC Document26-19 Filed11/16/12 Page2 of 9



Hal L. Poret
([email protected]; 212-329-1018; 914-772-5087)
Education
1998 Harvard Law School, J.D., cum laude
 Editor/Writer – Harvard Law Record
 Research Assistant to Professor Martha Minow
1995 S.U.N.Y. Albany, M.A. in Mathematics, summa cum laude
 Statistics
 Taught calculus/precalculus/statistics
1993 Union College, B.S. in Mathematics with honors, magna cum laude
 Phi Beta Kappa
 Resch Award for Achievement in Mathematical Research

Employment
2004 - Senior Vice President, ORC International (formerly Guideline)
 Designed, supervised, and analyzed over 350 consumer
surveys, including Trademark, Trade Dress, Advertising
Perception, Fraud/Consumer Deception, Claims Substantiation
studies, Damages, and Corporate Market Research Surveys
 Provided expert testimony at deposition and/or trial regarding
survey research in over 40 U.S. District Court litigations and
proceedings in front of TTAB, NAD and the FTC.
 Review and comment on third party surveys

2003 – 2004 Internet Sports Advantage
 Developed and marketed proprietary internet sports product,
and licensed trademark and intellectual property rights.

1998 – 2003 Attorney, Foley Hoag & Eliot, Boston, MA
 Represented corporations and individuals in trademark, trade
dress, advertising, product, and related legal disputes.
 Worked with survey experts in developing and using surveys
as evidence in trademark, trade dress and advertising disputes.
 Advised clients in the selection, adoption, use, licensing, and
protection of trademarks/trade dress; represented clients in
trademark/trade dress litigations, administrative proceedings
before the Trademark Trial and Appeal Board and United States
Patent and Trademark Office, and domain name proceedings
under the Uniform Domain-Name Dispute-Resolution Policy.
Case3:12-cv-05072-MMC Document26-19 Filed11/16/12 Page3 of 9


Testimony at Trial or by Deposition

(Party who retained me shown in bold)

2012 Forest River v. Heartland USDC Northern District of IN
(Deposition)

2012 SPD v. Church & Dwight USDC District of NJ
(Deposition)

2012 Brighton Collectibles v. Texas Leather USDC Southern District of CA
(Deposition)

2012 Cytosport v. Vital Pharmaceuticals USDC Eastern District of CA
(Deposition)

2012 Apple v. Samsung USDC Northern District of CA
(Deposition and Trial)

2012 Authors Guild v. Google USDC Southern District of NY
(Deposition)

2012 Clear Choice v. Real Choice TTAB
(Opposition testimony)

2011 Borghese v. Perlier et al. USDC Southern District of NY
(Deposition)

2011 My Favorite Company v. Wal-Mart USDC Central District of CA
(Deposition)

2011 PepsiCo v. Pirincci TTAB
(Opposition testimony)

2011 Merck Eprova v. Brookstone USDC Southern District of NY
(Deposition and trial)

2011 Wella, Inc. v. Willagirl LLC USDC Southern District of NY
(Deposition)

2011 Bauer Bros. v. Nike USDC Southern District of CA
(Deposition)

Case3:12-cv-05072-MMC Document26-19 Filed11/16/12 Page4 of 9


2011 Aviva Sports v. Manley USDC District of Minnesota
(Deposition)

2011 American Express v. Black Card LLC USDC Southern District of NY
(Deposition)

2011 Gosmile v. Dr. Levine USDC Southern District of NY
(Preliminary Injunction Trial)

2010 Nat’l Western Life v. Western Nat’l Life USDC Western District of TX
(Deposition)

2010 3M v. Mohan USDC District of Minnesota
(Trial)

2010 Active Network v. EA Sports USDC Central District of CA
(Preliminary Injunction declaration)

2010 FIJI Water Co. v. FIJI Mineral USA USDC Central District of CA
(Deposition)

2010 Hansen Beverage v. CytoSport USDC Central District of CA
(Deposition)

2010 People’s United Bank v. PeoplesBank USDC District of CT
(Deposition and Preliminary Injunction trial)

2010 Don Henley v. Charles Devore USDC Central District of CA
(Deposition)

2010 Pegasus v. Allscripts USDC Middle District of FL
(Deposition and Mediation)

2010 Jelmar, Inc. v. Zep Commercial USDC Northern District of IL
(Deposition)

2010 Dollar Bank v. Emigrant Bank USDC Western District of PA
(Deposition)

2009 LG Electronics v. Whirlpool USDC District of DE
(Deposition)

2009 Farberware v. Meyer Marketing USDC Southern District of NY
Case3:12-cv-05072-MMC Document26-19 Filed11/16/12 Page5 of 9


(Deposition and trial)

2009 NEC v. Ampad USDC Southern District of NY
(Deposition)

2009 GAP Inc. v. G.A.P. Adventures USDC Southern District of NY
(Deposition and trial)

2009 Lumber Liquidators v. Stone Mntn USDC Eastern District of VA
(Deposition and trial)

2009 CytoSport v. Vital Pharmaceuticals USDC Eastern District of CA
(Deposition)

2009 REDC v. NHA USDC Southern District of CA
(Deposition)

2008 1800Contacts v. Lens.com USDC District of UT
(Deposition)

2008 Tokidoki v. Fortune Dynamic USDC Central District of CA
(Deposition and trial)

2008 Brighton Collectibles v. Dynasty USDC Southern District of CA
(Deposition)





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Presentations

Internet Survey Issues (PLI Hot Topics in Advertising Law Conference, March
2012)

Measuring Consumer Confusion Through Online Surveys (2011 Midwest IP
Institute) (September, 2011)

Online Surveys as Evidence in Trademark Disputes (International Trademark
Association Annual Conference, May 2011)

Managing Intellectual Property Trademark Roundtable (April 7, 2010)

Recent Trends in Trademark Surveys (Virginia State Bar Intellectual Property
Conference, October 2009)

Trademark Surveys in US Litigation (presentation for International Trademark
Association Annual Conference) (May 2009)

How to Conduct Surveys for use in Trademark Disputes (Practicing Law
Institute Advanced Trademark Law Conference) (May 2009)

Trademark and Advertising Perception Studies for Legal Disputes (Opinion
Research Corporation Seminar, June 2008)

Understanding Advertising Perception Surveys (Promotions Marketing
Association Annual Law Conference) (November 2007)

Designing and Implementing Studies to Substantiate Advertising Claims
(American Conference Institute Claims Substantiation Conference, October 2007)

Surveys in Trademark and False Advertising Disputes (InfoUSA Webinar, June
2007)

Measuring Consumer Perception in False Advertising and Trademark Cases,
(multiple presentations) (2007)

Potential Errors to Avoid In Designing a Trademark Dilution Survey (American
Intellectual Property Association paper, April 2007)

Consumer Surveys in Trademark and Advertising Cases (presentation at
Promotions Marketing Association Annual Law Conference) (December 2006)

Case3:12-cv-05072-MMC Document26-19 Filed11/16/12 Page7 of 9


Use of Survey Research and Expert Testimony in Trademark Litigation,
(International Trademark Association Annual Conference, May 2006)

Survey Research as Evidence in Trademark/Trade Dress Disputes (multiple
presentations) (2006)

Using Surveys to Measure Secondary Meaning of Trade Dress, Legal Education
Seminar, Boston, April 2006


Publications/Papers

Trademark Litigation Online Consumer Surveys (Practical Law Company
Intellectual Property and Technology, May 2012)

Hot Topics in Advertising Law 2012 (Contributor to Practising Law Institute
publication)

A Comparative Empirical Analysis of Online Versus Mall and Phone
Methodologies for Trademark Surveys, 100 TMR 756 (May-June 2010)

Recent Trends in Trademark Surveys (paper for Virginia State Bar Intellectual
Property conference, October 2009)

Trademark Dilution Revision Act breathes new life into dilution surveys (In Brief
PLI website, June 2009)

The Mark (Survey Newsletter; three editions 2009)

Hot Topics in Trademark Surveys (paper for Practicing Law Institute Advanced
Trademark Law Conference) (May 2009)

The Mark (Survey Newsletter, 2008)

Trademark and Advertising Survey Report (Summer 2007)

Avoiding Pitfalls in Dilution Surveys under TDRA (AIPLA Spring Conference,
Boston, May 2007)


Commentary

Comment on Hotels.com case (on TTABLOG.COM, July 24, 2009)
Case3:12-cv-05072-MMC Document26-19 Filed11/16/12 Page8 of 9



Comment on Nextel v. Motorola (on TTABLOG.COM, June 19, 2009)

PLI All-Star Briefing Newsletter, “What does the Trademark Dilution Revision
Act mean for the future of Dilution Surveys?” (June 2009)

Can I Get By Without a Survey, Managing Intellectual Property (May 2009)












Professional Memberships/Affiliations

Council of American Survey Research Organizations

International Trademark Association


National Advertising Division of Council of Better Business Bureaus



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APPENDIX B

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APPENDIX B

INSTRUCTIONS/QUESTIONNAIRES





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SCREENER SECTION


BASE: ALL RESPONDENTS
100. Please enter your date of birth [PROGRAMMER: TERMINATE IF DOES NOT MATCH
PANELIST’S PRELOAD. PROGRAMMER: USE DOB TO CLASSIFY IN ONE OF
FOLLOWING AGE RANGES:]
1. 25-44
2. 45-64
3. 65+

BASE: ANY NON-TERMINATES
105. Are you…
1. Female
2. Male

BASE: ANY NON-TERMINATES
107. Which of the following includes your total annual household income?
1. Less than $100,000
2. $100,000 to $149,999
3. $150,000 to $199,999
4. $200,000 to $249,999
5. $250,000 to $299,999
6. $300,000 or over

[MUST SELECT 2-6 TO CONTINUE]
[SET A QUOTA FOR Q107/2-3 AND A SEPARATE QUOTA FOR Q107/4-6. KEEP BOTH
OPEN INITIALLY]


BASE: ANY NON-TERMINATES
110. What type of electronic device are you using to complete this survey?
1. Desktop computer
2. Laptop/notebook computer
3. Tablet computer  terminate
4. Mobile phone  terminate
5. Other mobile device  terminate

BASE: ANY NON-TERMINATES
115. In what state do you live?
[PROGRAMMER: Drop down menu of states.]

BASE: ANY NON-TERMINATES
120. Do you or does anyone in your household work in any of the following areas?
(Select all that apply)
[RANDOMIZE]
1. For a company or store that sells furniture [TERMINATE]
2. For a company or store that sells mobile phones
3. For a company or store that sells digital cameras
4. For a company or store that sells watches
5. For a company or store that sells luggage
6. None of these [ANCHOR; EXCLUSIVE]

BASE: ANY NON-TERMINATES
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125. Do you or does anyone in your household work in either advertising or market research?
(Select all that apply)
[RANDOMIZE]
1. Yes, advertising [TERMINATE]
2. Yes, market research [TERMINATE]
3. Neither of these [ANCHOR; EXCLUSIVE]


BASE: ANY NON-TERMINATES
127. Which of the following, if any, have you personally shopped for in the past 2 years?
[RANDOMIZE]
1. Furniture
2. Mobile phone
3. Digital camera
4. Watch
5. Suitcase
6. None of the above [ANCHOR; EXCLUSIVE]

BASE: ANY NON-TERMINATES
128. Which of the following, if any, are you likely to personally shop for in the next 2 years?
[REPEAT LIST FROM Q127]

[RESPONDENT MUST SELECT “1-FURNITURE” IN Q.127 OR Q.128 TO CONTINUE]

BASE: 127=1
130. At which of the following stores, if any, have you shopped for furniture in the past 2 years,
either in the store or by looking at its website or catalog? (Select all that apply or “none”)
[RANDOMIZE]
1. Restoration Hardware
2. Crate & Barrel
3. Pottery Barn
4. Home Decorators
5. Pier One
6. None of these [ANCHOR; EXCLUSIVE]

BASE: 128=1
135. At which of the following stores, if any, would you be likely to look the next time you shop
for furniture, either in the store or by looking at its website or catalog?

[Show choices in same order as 130]

[RESPONDENT MUST SELECT 1-RESTORATION HARDWARE IN 130 OR 135]


BASE: ANY NON-TERMINATES
165. Please select South from the following list in order to continue with this
survey.
[RANDOMIZE]
1. North
2. South [must select to continue]
3. East
4. West



MAIN SURVEY
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BASE: ALL QUALIFIED RESPONDENTS
200. In a moment, you are going to be shown images of a chair. Please take your time to look
at the chair as you would if you were shopping and saw this chair in a catalog, on a
website or in a store.

You will then be asked some questions. If for any question, you don’t know or have no
opinion, please indicate so. Please do not guess.

If for any question you are unable to clearly see the image of the chair, please indicate
so.





BASE: ALL QUALIFIED RESPONDENTS
210. [DISPLAY IMAGE 1000 TO CELL 1 OR IMAGE 2000 TO CELL 2]

Do you associate the overall look of this chair with any particular company or brand of
chair or do you not?

1. Yes, I do associate the overall look of this chair with a particular company or brand of
chair  continue to 215
2. No, I do not associate the overall look of this chair with a particular company or brand
of chair  skip to 230
3. Don’t know/No Opinion  skip to 230
4. Cannot see image of chair clearly  terminate

BASE: 210=1
215.
[DISPLAY IMAGE 1000 TO CELL 1 OR IMAGE 2000 TO CELL 2]

With what company or brand of chair do you associate the overall look of this chair?

Please identify the company or brand of chair you are thinking of as specifically as possible, or
select “don’t know” if you do not know.

(Programmer: include text box to right of “Company/brand” and a “Don’t know” button
below text box)
(if respondent enters an answer, go to 220) (if respondent selects “don’t know”, go to 225)

BASE: 215=Entered text
Q.220
[DISPLAY IMAGE 1000 TO CELL 1 OR IMAGE 2000 TO CELL 2]

What makes you associate the overall look of this chair with (insert answer from 215)?
Please be as detailed and specific as possible.

[Text box for response]

BASE: 215=Don’t know
Q.225 [DISPLAY IMAGE 1000 TO CELL 1 OR IMAGE 2000 TO CELL 2]

What made you answer that you associate the overall look of this chair with a particular company
or brand of chair?
Case3:12-cv-05072-MMC Document26-20 Filed11/16/12 Page5 of 7


Please be as detailed and specific as possible.

[Text box for response]

BASE: ALL QUALIFIED RESPONDENTS
Q.230 We are now going to show you two pages from a Restoration Hardware catalog showing
the same chair that you just looked at. Please take your time to look at the two catalog
pages of the chair as you ordinarily would if you were looking at a Restoration Hardware
catalog. If you cannot clearly see either catalog page, please indicate so.



BASE: ALL QUALIFIED RESPONDENTS
Q.231 Here is the first catalog page showing the same chair that you already looked at. Please
take your time to look at it.


[DISPLAY IMAGE 1001 TO CELL 1 OR IMAGE 2001 TO CELL 2]


1. Continue
2. Cannot view catalog page clearly  terminate


BASE: ALL QUALIFIED RESPONDENTS
Q.232 Here is the second catalog page showing the same chair. Please take your time to look
at it.


[DISPLAY IMAGE 1002 TO CELL 1 OR IMAGE 2002 TO CELL 2]


1. Continue
2. Cannot view catalog page clearly  terminate



BASE: ALL QUALIFIED RESPONDENTS
Q.233 Do you have any opinion about what company or brand makes the chair you just saw?

1. Yes, I do have an opinion
2. No, I do not have an opinion

BASE: 233=1
Q.235 What company or brand do you believe makes the chair?

Please identify the company or brand you are thinking of as specifically as possible, or
select “don’t know” if you do not know.
(Programmer: include text box to right of “Company/brand” and a “Don’t know”
button below text box)
(if respondent enters an answer, go to 240) (if respondent selects “don’t know”, go
to 245)

BASE: 235=Entered text
Q.240 What makes you believe the chair is made by (insert answer from 235)?

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Please be as detailed and specific as possible.

[Text box for response]


BASE: 235=Don’t know
Q.245 What made you answer that you have an opinion about what company makes the chair?

Please be as detailed and specific as possible.
[text box]


BASE: ALL QUALIFIED RESPONDENTS
250. Do you believe the chair you saw is affiliated with or authorized by any company or brand
that you are aware of, or do you not?
1. Yes, I do
2. No, I do not
3. No opinion

BASE: 250=1
255. What other company or brand do you believe the chair is affiliated with or authorized by?
(Programmer: include text box to right of “Company/brand” and a “Don’t know”
button below text box)
(if respondent enters an answer, go to 260) (if respondent selects “don’t know”, go
to 265)


BASE: 255=entered text on at least one line
260. What makes you believe the chair is affiliated with or authorized by (insert answer from
255)?
Please be as detailed and specific as possible.

[Text box for response]

BASE: 255=Don’t know
Q.265 What made you answer that you believe the chair is affiliated with or authorized by a
company or brand that you are aware of?

Please be as detailed and specific as possible.
[text box]

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MFN RE: APP’X C TO PORET REPORT
CASE NO. 3:12-CV-5072 MMC
sf-3219424
WESLEY E. OVERSON (CA SBN 154737)
[email protected]
JENNIFER LEE TAYLOR (CA SBN 161368)
[email protected]
NATHAN B. SABRI (CA SBN 252216)
[email protected]
JULIA D. KRIPKE (CA SBN 267436)
[email protected]
MORRISON & FOERSTER LLP
425 Market Street
San Francisco, California 94105-2482
Telephone: 415.268.7000
Facsimile: 415.268.7522
Attorneys for Defendants
RESTORATION HARDWARE, INC. and GARY
FRIEDMAN

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF CALIFORNIA
SAN FRANCISCO DIVISION
EMECO INDUSTRIES, INC.,
Plaintiff,
v.
RESTORATION HARDWARE, INC., GARY
FRIEDMAN, and Does 1-10,
Defendants.
Case No. 3:12-cv-5072 MMC
APPENDIX C TO THE EXPERT
REPORT OF HAL PORET (EX. 1
TO THE DECLARATION OF HAL
PORET)
Date: Dec. 14, 2012
Time: 9:00 a.m.
Ctrm: 7

Hon. Maxine M. Chesney
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MFN RE: APP’X C TO PORET REPORT
CASE NO. 3:12-CV-5072 MMC
1
sf-3219424
MANUAL FILING NOTIFICATION
Regarding: APPENDIX C TO THE EXPERT REPORT OF HAL PORET (EX. 1 TO THE
DECLARATION OF HAL PORET)
This filing is in physical form only, and is being maintained in the case file in the Clerk’s
office.
If you are a participant on this case, this filing will be served in hard-copy shortly.
For information on retrieving this filing directly from the court, please see the court's main
web site at http://www.cand.uscourts.gov under Frequently Asked Questions (FAQ).
This filing was not e-filed for the following reason(s):
___ Voluminous Document (PDF file size larger than e-filing system allowances)
___ Unable to Scan Documents
___ Physical Object (description):
___ Non Graphical/Textual Computer File (audio, video, etc.) on CD or other media
___ Item Under Seal
___ Conformance with the Judicial Conference Privacy Policy (General Order 53).
_X_ Other (description): Excel spreadsheet that requires review in native format

Dated: November 16, 2012

WESLEY E. OVERSON
JENNIFER LEE TAYLOR
NATHAN B. SABRI
JULIA D. KRIPKE
MORRISON & FOERSTER LLP
By: /s/ Nathan B. Sabri
NATHAN B. SABRI
Attorneys for Defendants
RESTORATION HARDWARE, INC. and
GARY FRIEDMAN

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