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Moshik Nadav Typography LLC v. Banana Republic LLC

Claims Over Stylized Ampersand's Unauthorized Use Fail as Matter of Law

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MEMORANDUM OPINION AND ORDER In what Encyclopedia Brown might have dubbed the Case of the Stolen Ampersand, Plaintiff Moshik Nadav Typography LLC (“Nadav”), a typeface designer, alleges that the retail giant Banana Republic, LLC (“Banana Republic”) misappropriated a stylized ampersand that Nadav had designed. Nadav brings claims for unjust enrichment and unfair competition under New York common law, as well as a claim pursuant to Section 349 of New York’s General Business Law (“Section 349″). Banana Republic now moves, pursuant to Rule 12(b)(6) of the Federal Rules of Civil Procedure, to dismiss the Second Amended Complaint (“Complaint”). See ECF No. 21. For the reasons that follow, its motion is granted. BACKGROUND The following facts, drawn from the Complaint, are assumed to be true for purposes of this motion. See, e.g., Hogan v. Fischer, 738 F.3d 509, 513 (2d Cir. 2013). Nadav is a typography and graphic design business that creates “artistic typefaces[] and logotypes in digital formats for headlines in fashion magazines[,] as well as logos for luxury and high-end brands.” ECF No. 20 (“SAC”), 10. Its clients include VOGUE, Estee Lauder, ELLE UK, Ann Taylor, Volkswagen, Harrods, Target, the Fast Company, and GQ magazine. Id. 11. Nadav’s business model involves the sale of commercial licenses for use of its artistic typefaces and logotypes, with prices set according to the scope and nature of the requested use, as well as non-commercial licenses priced at a set fee. Id. 13. In 2012, Nadav designed the Paris Pro FS typeface, which includes a stylized ampersand (the “Paris Pro Ampersand”), for use in high-end fashion headlines and logos. Id.

14, 17, 19. The Complaint alleges that the Paris Pro Ampersand is “the centerpiece of Nadav’s brand identity”; the company sells merchandise, including jewelry and apparel, that prominently features the symbol on its website. Id.

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