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In magazine articles, Madonna and other glamorous celebrities have praised a skin care product called Crease Release, distributed by Coral Gables, Fla.-based Cosmetic Dermatology. The stars claim that the cream smoothes out wrinkles and helps them look years younger. “It’s like a facelift in a jar,” In Touch Weekly quoted talk show co-host Kelly Ripa as saying about Crease Release. So when Phoenix-based Philosophy Inc. recently began marketing a wrinkle-reducing product called Deep Crease Relief, Cosmetic Dermatology sued in U.S. District Court in Miami. The case has been assigned to Judge Paul C. Huck. Last month, Cosmetic Dermatology and its principal, dermatologist Fredric S. Brandt, providers of skin care products and dermatological services, filed a trademark infringement suit under the so-called phonetic equivalence doctrine. That means that if two items have confusingly similar names, they are deemed to be the same thing under trademark law. The plaintiff’s Miami attorney, James Gale, said Philosophy’s Deep Crease Relief not only sounds like Crease Release, it’s intended to produce the same cosmetic benefit. “Say it three times fast — ‘She sells Crease Release down by the seashore,’” quipped Gale, an intellectual property lawyer and partner at Feldman Gale. “You see, even I get confused.” The suit said the defendant intended to “trade off Cosmetic Dermatology’s goodwill and distinguished reputation.” The defendant’s law firm, Snell & Wilmer in Phoenix, did not return calls for comment before deadline. Cosmetic Dermatology wants Philosophy to change the name of its product and pay damages the plaintiff allegedly has suffered due to the claimed confusion in the minds of consumers. Gale argues that the new name should not include the words “crease,” “relief” or “release.” Because of the similarity of the two names, Gale said his client seeks disgorgement of Philosophy’s profits from marketing Deep Crease Relief. Gale said he’s trying to determine how much money Philosophy has made from marketing Deep Crease Relief. Both products are designed to help provide a smoother complexion by reducing wrinkles, crow’s feet and stress marks. The products have even been touted as alternatives to Botox, the botulism derivative that is injected under the skin of the face to kill muscles that cause wrinkles. Brandt, a licensed dermatologist and founder of Cosmetic Dermatology, received a trademark for Crease Release in January of last year. According to the complaint, he supervises the formulation of his company’s skin care products, and has appeared on various news programs, such as “World News Tonight” and “Good Morning America,” to talk about Crease Release. Philosophy Inc. was founded nearly nine years ago by Christina Carlino, according to news reports. Some of its products were recently included on one of Oprah Winfrey’s Favorite Things list. According to Gale, the similarity between the names of the two skin products was demonstrated during a QVC program this summer that was promoting Philosophy’s Deep Crease Relief. During the program, the host repeatedly juxtaposed the two names, once referring to Philosophy’s product as “deep release.” Gale said that QVC show helped trigger the lawsuit, as did the fact that Philosophy filed a trademark application for Deep Crease Relief in October 2004. In addition to trademark infringement, Cosmetic Dermatology claims unfair competition and false designation of origin in its lawsuit. “We vigorously protect our intellectual property,” Gale said. The two products target the same types of consumers and both are sold at Sephora, Bloomingdale’s, Bergdorf Goodman and Nordstrom. One big difference, however, is that the defendant’s Deep Crease Relief sells for $60 an ounce — $90 less than the plaintiff’s cream. Gale said his client is waiting for a response from Philosophy to determine whether the case will be settled or litigated. Gale said Philosophy should respond to his client’s demands sometime this week. “We are hopeful that given [Deep Crease Relief's] poor sales and our strong legal position, that they will either withdraw the product or change its name to one that is not confusingly similar,” Gale said. He would not identify the source of his information that Deep Crease Relief is not selling well. There are no scientific data showing that either product does what it claims. There also are no known tests in which Madonna or some other celebrity has applied Crease Release to one cheek and Deep Crease Relief to the other to determine which is more effective at making them look 20 again.

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