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A perfume for dogs that parodies Tommy Hilfiger does not infringe on the fashion designer and cologne maker’s trademark, a federal judge has ruled. Southern District of New York Chief Judge Michael B. Mukasey ruled that the perfume, called Timmy Holedigger, could not under any circumstances be confused with Tommy Hilfiger cologne, nor could it be seen as a competing product trading on the designer’s good will. “Hilfiger fails to see the humor in all this,” Mukasey wrote in Tommy Hilfiger Licensing Inc. v. Nature Labs LLC, 99 Civ. 10713. He called Tommy Hilfiger’s position “dour” and said the company “is ‘advised to chill,’” as were the litigants in a recent trademark case before the 9th U.S. Circuit Court of Appeals, Mattel Inc. v. MCA Records Inc., 98 Civ. 56577. Mukasey stressed that the maker of Holedigger, Nature Labs LLC, sells numerous other parody fragrances for pets, including Pucci (Gucci), Bono Sports (Ralph Lauren’s Polo Sports) and Miss Claybone (Liz Claiborne). Other trademark holders have not challenged the scents, the judge said. “Most of the companies that purvey these expensive human fragrances have chosen either to accept the implied compliment in this parody — that the mere association of their high-end brand names with a product for animals is enough to raise a smile — or, if they have taken offense, to suffer in silence,” the judge said. Nature Labs sells its perfumes in pet and novelty stores and displays them in groups of at least three. The perfumes are packaged in similar bottles and bear slogans like “strong enough for a man, but made for a chihuahua.” The Hilfiger parody first appeared as “Tommy Holedigger” in a bottle that sported a flag with red and white squares with a blue border, similar to the Hilfiger bottles. After being sued, Nature Labs changed the product’s name to Timmy Holedigger and began using side-by-side yellow and red triangles as a label. Beneath the new logo is the phrase, “If you like Tommy Hilfiger, your pet will love Timmy Holedigger.” LITTLE ROOM FOR CONFUSION Tommy Hilfiger claimed in its suit that Nature Labs’ product was likely to cause confusion in the marketplace and cited two federal opinions — Recot Inc. v. Becton, 56 U.S.P.Q. 2d 1859 (2000) and Grey v. Campbell Soup Co., 650 F. Supp. 1166 (1986) — in which dog snacks named Fido-Lay and Dogiva were found to infringe the Frito-Lay and Godiva trademarks. But Judge Mukasey rejected those arguments, saying the rulings were not on point because the perfumes are not sold in the same stores and there has been no evidence of actual confusion. Also, he said, pet perfume is inherently a parody item, whereas dog treats are not. “Even if a dense and humorless consumer could mistakenly conclude that plaintiff itself sponsored the humorous line of fragrances,” Mukasey wrote, the products are sold in different stores at different prices. “There is nothing to suggest that a designer label has anything to lose from mere association with pets, particularly where the entire association is a light-hearted if somewhat heavy-handed parody,” the judge wrote. The judge also rejected arguments that Holedigger’s slogan, “If you like Tommy Hilfiger, your pet will love Timmy Holedigger,” constituted false advertising. “A statement drawing a likeness between the buyer’s own taste and that of his or her pet is unverifiable puff,” Mukasey wrote. Robert Mason of Mason & Petruzzi in Dallas, and Adam D. Cole of Greenberg Traurig represented Nature Labs. Louis S. Ederer and Joseph H. Lessem of New York’s Gursky & Ederer represented Tommy Hilfiger.

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