Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 1 of 29

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

WALKER WEAR LLC, Civil No. 21-cv-7073 Plaintiff,

vs. MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’S OFF-WHITE LLC, OFF-WHITE OPERATING MOTION FOR PRELIMINARY SOHO LLC, FARFETCH.COM US LLC, SAKS INJUNCTION FIFTH AVENUE LLC, and SAKS INCORPORATED,

Defendants.

1 Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 2 of 29

TABLE OF CONTENTS TABLE OF AUTHORITIES...... ii I. INTRODUCTION ...... 1 II. BACKGROUND ...... 2 A. Walker Wear’s Well-Known Brand and Products...... 2 B. Walker Wear’s Valuable Intellectual Property Rights...... 2 C. Off-White’s Willful Infringement of Walker Wear’s Intellectual Property ...... 5 D. Saks’ and Farfetch’s Role in Selling the Infringing Jacket ...... 9 E. Confusion and Resulting Harm to Walker Wear...... 9 F. Defendants’ Continued Infringement ...... 11 III. ARGUMENT...... 122 A. Walker Wear is Likely to Succeed on Its Claims Against Defendants ...... 12 1. Walker Wear is Likely to Succeed on its Infringement Claims...... 12 2. Walker Wear is Likely to Succeed on its Dilution Claims ...... 19 3. Walker Wear Is Likely To Succeed On Its Unfair Competition Claims...... 20 4. Walker Wear Is Likely To Succeed On Its Deceptive Acts And Practices Claim Under New York General Business Law § 349...... 21 B. Walker Wear Will Suffer Irreparable Harm if Injunctive Relief Is Not Granted ...... 22 C. The Balance of Hardships Favors Walker Wear ...... 22 IV. CONCLUSION...... 23

i

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 3 of 29

TABLE OF AUTHORITIES

CASES

Page(s) 24 Hour Fitness USA, Inc. v. 24/7 Tribeca Fitness, LLC., 447 F. Supp. 2d 266 (S.D.N.Y. 2006) ...... 19

27-24 Tavern Corp. v. Dutch Kills Centraal, No. 14-CV-1625, 2015 WL 5772158 (E.D.N.Y. Sept. 29, 2015)...... 14

American Ort, Inc. v. Israel, No. 07-CV-2332, 2007 WL 2049733 (S.D.N.Y. July 17, 2007)...... 15

Berkshire , Inc. v. Sara Lee Corp., 725 F. Supp. 790 (S.D.N.Y. 1989) ...... 15

BigStar Entertainment, Inc. v. Next Big Star, Inc., 105 F. Supp. 2d 185 (S.D.N.Y. 2000) ...... 16

Bulman v. 2BKCO, Inc., 882 F. Supp. 2d 551 (S.D.N.Y. 2012) ...... 22

Burberry Ltd. & Burberry USA v. Designers Imports, Inc., No. 07-CV-3997, 2010 WL 199906 (S.D.N.Y. Jan. 19, 2010)...... 20, 21

Burberry Ltd. v. Euro Moda, Inc., No. 08-CV-5781, 2009 WL 1675080 (S.D.N.Y. June 10, 2009)...... 21

Charles of the Ritz Group Ltd. v. Quality King Distributors, Inc., 832 F.2d 1317 (2d Cir. 1987)...... 18, 19

Courtenay Comminications Corp. v. Hall, 334 F.3d 210 (2d Cir. 2003) ...... 13

Disney Enterprises, Inc. v. Sarelli, 322 F. Supp. 3d 413 (S.D.N.Y. 2018) ...... 20

Engine Capital Management, LP v. Engine No. 1 GP LLC, No. 21-CV-0149, 2021 WL 1372658 (S.D.N.Y. Apr. 12, 2021) ...... 20

Flushing Bank v. Green Dot Corp., 138 F. Supp. 3d 561 (S.D.N.Y. 2015) ...... 12

Grand v. Schwarz, No. 15-CV-8779, 2016 WL 2733133 (S.D.N.Y. May 10, 2016) ...... 20

Gruner + Jahr USA Pub., a Div. of Gruner + Jahr Printing & Pub. Co. v. Meredith Corp., 991 F.2d 1072 (2d Cir. 1993)...... 12, 16

GTFM, Inc. v. Solid Clothing Inc., 215 F. Supp. 2d 273 (S.D.N.Y. 2002) ...... 17, 21

Harlequin Enterprises Ltd. v. Gulf & W. Corp., 644 F.2d 946 (2d Cir. 1981) ...... 14

Hasbro, Inc. v. Lanard Toys, Ltd., 858 F.2d 70 (2d Cir.1988)...... 12

ii

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 4 of 29

Herbko Int'l, Inc. v. Kappa Books, Inc., 308 F.3d 1156 (Fed. Cir. 2002) ...... 18

Heritage of Pride, Inc. v. Matinee NYC, Inc., No. 14-CV-4165, 2014 WL 12783866 (S.D.N.Y. June 20, 2014)...... 21

Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70 (2d Cir. 1979) ...... 12

Koch v. Greenberg, 626 F. App’x 335 (2d Cir. 2015)...... 21

Lang v. Retirement Living Publishing Co., 949 F.2d 576 (2d Cir. 1991) ...... 17

Louis Vuitton Malletier v. Dooney & Bourke, Inc., 454 F.3d 108 (2d Cir. 2006) ...... 13

Malletier v. Burlington Coat Factory Warehouse Corp., 426 F.3d 532 (2d Cir. 2005) ...... 16, 22

McGregor-Doniger Inc. v. Drizzle Inc., 599 F.2d 1126 (2d Cir. 1979) ...... 16, 18

MetLife, Inc. v. Metropolitan National Bank, 388 F. Supp. 2d 223 (S.D.N.Y. 2005) ...... 19

Museum of Modern Art v. MOMACHA IP LLC, 339 F. Supp. 3d 361 (S.D.N.Y. 2018) ...... 15

MyPlayCity, Inc. v. Conduit Ltd., No. 10-CV-1615, 2012 WL 1107648 (S.D.N.Y. Mar. 30, 2012) ...... 20

New York City Triathlon, LLC v. NYC Triathlon Club, Inc., 704 F. Supp. 2d 305 (S.D.N.Y. 2010) ...... 21, 22

Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank, N.A., 85 N.Y.2d 20 (1995) ...... 21

Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir. 1961) ...... 15

Ryan v. Volpone Stamp Co., 107 F. Supp. 2d 369 (S.D.N.Y.2000)...... 22

Savin Corp. v. Savin Group, 391 F.3d 439 (2d Cir. 2004)...... 15

Sports Authority., Inc. v. Prime Hospitality Corp., 89 F.3d 955 (2d Cir. 1996) ...... 16

Star Industries, Inc. v. Bacardi & Co., 412 F.3d 373 (2d Cir. 2005)...... 13, 18, 19

Sunenblick v. Harrell, 895 F. Supp. 616 (S.D.N.Y. 1995)...... 18

Thompson Medical Co. v. Pfizer Inc., 753 F.2d 208 (2d Cir. 1985) ...... 14

Tri-Star Pictures, Inc. v. Unger, 14 F. Supp. 2d 339 (S.D.N.Y. 1998)...... 20

iii

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 5 of 29

Trustees of Columbia University v. Columbia/HCA Healthcare Corp., 964 F. Supp. 733 (S.D.N.Y. 1997) ...... 18

Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992) ...... 13

Warner-Lambert Co. v. Northside Development Corp., 86 F.3d 3 (2d Cir. 1996) ...... 23

Weight Watchers Int’l, Inc. v. Luigino’s, Inc., 423 F.3d 137 (2d Cir. 2005) ...... 22

STATUTES

15 U.S.C. § 1125(c)(1)...... 20

Fed. R. Civ. P. 52(a) ...... 16

N.Y. Gen. Bus. Law § 360-l...... 20

iv

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 6 of 29

I. INTRODUCTION

April Walker, the founder of Plaintiff Walker Wear, is a pioneer in the history of design. Her designs have been sold for nearly thirty years, have been worn by many of the most famous hip-hop entertainers, and have been the subject of extensive media coverage.

Unfortunately for Ms. Walker and countless other solo designers, larger houses have a long history of co-opting others’ work. The founder of Defendant Off-White,1 for example, has

boasted that his design process includes a “cheat code”—changing others’ designs by only “three

percent” and then claiming the design as his own.

Defendants Off-White and its vendors, including Saks and Farfetch, have engaged in

similarly improper conduct here. Off-White produced, and Defendants have been selling, a

jacket bearing a design nearly identical to Walker Wear’s storied WW XXL Athletic mark

design. Those sales have already resulted in actual confusion—Ms. Walker’s own friends, and

others, have mistaken Off-White’s jacket for her work. Walker Wear promptly notified Off-

White and Saks but, even with notice that there was actual confusion in the market, they flatly

refused to cease infringement, and instead have continued to offer the infringing jacket for sale.

Likelihood of confusion is the hallmark of trademark infringement, and actual confusion

is its exemplar. The presence of actual confusion demonstrates both that Walker Wear is likely

to succeed on the merits of its claims and that Walker Wear will be irreparably harmed by

Defendants’ ongoing infringement. Accordingly, and as explained further below, Walker Wear

respectfully requests that the Court enter a preliminary injunction.

1 All ca pitalized terms, unless noted otherwise, a re a s defined in Pla intiffs’ Complaint, filed simultaneously with this brief.

1

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 7 of 29

II. BACKGROUND

A. Walker Wear’s Well-Known Brand and Products

April Walker, a hip-hop fashion pioneer and founder of Walker Wear, has designed

signature streetwear clothing since she opened custom tailor shop Fashion in Effect in Brooklyn

in 1987. Ex. A, Declaration of April Walker (“Walker Decl.”) ¶ 2. Seeking to fill a void in the

fashion industry, Ms. Walker started one of the first urban lifestyle fashion brands, Walker Wear,

in the early 1990s. Id. ¶ 1. Since then, Ms. Walker has designed clothing for many of hip-hop’s greatest icons, including The Notorious B.I.G., Tupac, RUN-DMC, Wu-Tang Clan, and many others. Id. ¶¶ 6-7. A trailblazer in the field, she worked to open distribution doors for her brand, helping also to pave the way for others who followed her. Indeed, Ms. Walker, and Walker

Wear, helped turn the then-freshly dubbed “streetwear” fashion category into the multi-billion- dollar industry that it is today.

B. Walker Wear’s Valuable Intellectual Property Rights

Ms. Walker’s brand and innovative designs are protected by a range of intellectual

property rights, foremost among them the trademark and trade dress rights in the WW XXL

Athletic mark and related designs (the “Mark”).

Walker Wear has used the Mark since at least 1993 and has invested substantial time,

effort, and resources in developing the Mark and using it to promote its products. Walker Decl.

¶ 11. As a result of its extensive investment, the Mark and its related works have become widely

associated with Walker Wear and it has acquired substantial recognition, goodwill, and fame.

Both April Walker’s personal account and the Walker Wear account have tens of thousands of

followers each on Instagram. The Mark has been featured on sweatshirts, t-shirts, sweatpants,

and various other products offered by Walker Wear continuously since 1993. Id. Clothing items

featuring the Mark, pictured below, have been, and remain, best-sellers for Walker Wear.

2

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 8 of 29

In addition to the prominent coverage of her designs on famous celebrities, Ms. Walker, the Walker Wear brand, and the Mark have enjoyed extensive recognition across the industry and in the media. For example, Black Entertainment Television (“BET”), long the foremost television network targeting young African-Americans, featured Walker Wear in honor of Black

History Month. Walker Decl. ¶ 16. Earlier this year, BET’s website used a picture of a clothing design featuring the Mark in describing Ms. Walker as having “single-handedly changed the way celebrities express themselves on the red carpet” and noting the prominence of her “her custom-

3

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 9 of 29

made looks in images and video shoots” of the “hottest rappers like Tupac, The Notorious B.I.G.,

LL Cool J, and Jay-Z.”2

Ms. Walker and her designs have also been featured on Vogue’s podcast about how New

York hip-hop music and streetwear culture went global.3 Id. ¶ 14. InStyle magazine profiled

Ms. Walker as one of the Black women who invented streetwear, calling Walker Wear “one of

the first urban brands,” whose fans include “Method Man, Notorious B.I.G., Tupac and more.”4

Id. ¶ 13.

Ms. Walker was honored in a event in New York in 2020 as a Black

pioneer in fashion.5 Id. ¶ 15. Coverage of the event described Walker Wear as an “urbanwear

label worn by everyone from Aaliyah to Snoop Dogg” and stated that Ms. Walker “dress[ed]

some of the most influential names in the early oughts of urban fashion.”

Ms. Walker and Walker Wear (including designs featuring the Mark) were also featured

in the 2019 Netflix documentary The Remix: Hip Hop X Fashion.6 Id. ¶ 19. The documentary

“profiles Black visionaries in fashion who rewrote narratives on the runway and turned hip-hop

style into a global phenomenon.” Id.

2 Elitou, Tweety, April Walker: Meet The Woman Who Shaped 90s With Streetwear Worn By Tupac, LL Cool J, And More!, BET (Feb. 22, 2021), https://www.bet.com/style/fashion/2021/02/22/april-walker- wa lker-wear-bhm-interview.html. 3 Borrelli-Persson, La ird, “Hip-Hop Is Something You Live”—Episode 12 of In Vogue Explores the Connection Between Fashion and Music, Vogue (Dec. 4, 2020), https://www.vogue.com/article/in-vogue-the-1990s-podcast- episode-12-rappers-on-the-runway-how-hip-hop-changed-fashion. 4 Coker, Hilla ry Crosley, Fashion History Forgot the Black Women Who Invented Streetwear, InStyle (Feb. 1, 2021), https://www.instyle.com/fashion/clothing/state-of-the-arts-streetwear-history. 5 Wilkins, Jessica , Harlem’s Fashion Row Honors Dapper Dan, Misa Hylton and April Walker as Black Pioneers in Fashion, Ya hoo! (Feb. 6, 2020), https://finance.yahoo.com/news/harlems-fashion-row-honors-dapper- 170000447.html. 6 https://www.netflix.com/title/81301825.

4

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 10 of 29

The Mark and the Trade Dress, as they appear in the documentary

C. Off-White’s Willful Infringement of Walker Wear’s Intellectual Property

Despite her status as a pioneer, Ms. Walker and her brand Walker Wear continue to face

some of the same “invisible” challenges as when she was first starting out more than three

decades ago. One such challenge is the persistence of larger fashion houses misappropriating the

work of independent designers like her on the assumption that she and others like her will be

unable to meaningfully challenge them in legal proceedings.

Defendant Off-White,7 an “expensive streetwear” brand,8 is one such major fashion house. Ms. Walker recently became aware that without her permission, Off-White had produced and Defendants have been selling, a “Diagonal Stripe Varsity Bomber Jacket” (the “Infringing

Jacket,” referred to elsewhere by other names including “striped-sleeves bomber jacket”).9 The

7 The term “Off-White” is used to refer collectively to Defendants Off-White LLC a nd Off-White Operating Soho LLC. 8 Tiffa ny, Kaitlyn, The Hottest Fashion Brand in the World Was Built on Irony and $1,000 Sweatshirts, Vox (Oct. 30, 2018), https://www.vox.com/the-goods/2018/10/30/18027074/off-white-timeline-history-luxury-streetwear- virgil-abloh. 9 See, e.g., Off-White Dia gonal Va rsity Bomber Ja cket, Saks Fifth Avenue, https://www.saksfifthavenue.com/product/off-white-diagonal-varsity-bomber-jacket-0400013439913.html (last visited August 20, 2021); Off-White monogram print bomber jacket, Farfetch, https://www.farfetch.com/shopping/men/off-white-monogram-print-bomber-jacket-item-16049238.aspx (last visited August 20, 2021).

5

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 11 of 29

Infringing Jacket – pictured below – features a nearly identical version of Walker Wear’s “WW” design:

Ms. Walker first became aware of this appropriation of her intellectual property when her

friend, Carlos Maldonado, a fellow clothing designer, sent her an Instagram direct message on

February 27, 2021, with a link to a Saks10 ad on Instagram featuring the Infringing Jacket.

Walker Decl. ¶ 20. When Mr. Maldonado first saw the Instagram ad, he immediately recognized what he believed to be the distinctive Walker Wear “WW” design, which he had seen many times before, and was confused into believing that Saks was advertising a Walker Wear jacket.

Ex. B, Declaration of Carlos Maldonado (“Maldonado Decl.”) ¶ 9. But after clicking on the ad,

Mr. Maldonado realized that the jacket was instead made by Off-White, with no mention of

Walker Wear. Id. ¶¶ 9-10. At that point, Mr. Maldonado contacted Ms. Walker to inform her about the Infringing Jacket. Id. ¶ 11.

10 Th e term Sa ks is u sed to ref er co llectiv ely to Def endants Sak s Fif th Av enue LLC an d Sak s I ncorpo rated .

6

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 12 of 29

Off-White has also promoted the Infringing Jacket on its social media channels, including, for example, posting the below image to its more than 10 million Instagram followers on April 12, 2021, featuring the Infringing Jacket:

Off-White and its founder, Virgil Abloh, have an unfortunate history of deriving from the creativity of other designers. Indeed, Off-White’s predecessor company, Pyrex Vision, “became infamous when it later emerged . . . that Virgil was just slapping his logo onto old Ralph Lauren shirts and charging $550 for the pleasure.” 11 Mr. Abloh later explained that Off-White “is a

11 Leach, Alec, Virgil Abloh’s Pyrex Vision Brand is Still Alive, It Just Has a Different Name, High Snobiety (June 22, 2017), https://www.highsnobiety.com/p/virgil-abloh-pyrex-vision-original/.

7

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 13 of 29

continuation of Pyrex” but that he “just legally can’t use the name ‘Pyrex’ anymore [due to copyright issues].”12

Mr. Abloh has also been accused of “knocking off the shoe designs of Amsterdam

Warehouse co-founder, Elisa van Joolen”;13 “copying a chair design that is part of [his collaboration] with IKEA”;14 copying a triangular hoodie design from Japanese label

ANREALAGE;15 taking “the ‘crossed arrows’ logo used by Off-White [from a logo] . . . designed in 1965 by Kinner, Calvert & Associates, a UK-based design group”;16 “copying graphic designer AG Fronzoni’s work from 1966”;17 and copying Norwegian company Helly Hanson’s well-known stripe logo.18

Moreover, Mr. Abloh has openly admitted that one of his “cheat codes” includes what he refers to as the “three-per-cent approach,” wherein he creates a purportedly “new design” merely by changing an original one by “three per cent.”19 While that approach may be acceptable with the permission of the original designer, Ms. Walker never gave Mr. Abloh permission to base his designs on hers. Given that fashion is cyclical and 1990s fashion is very much back in style, it is

12 Trammel, Matthew, Interview: Virgil Abloh on Trolling Fashion Tropes and Icing Hip-Hop’s Growing Pains, THE FADER (Aug. 22, 2014), https://www.thefader.com/2014/08/22/virgil-abloh-interview (alterations in original). 13 Ozemebhoya, Esiwa homi, 6 Times Diet Prada Savagely Called out Fashion Copycats, Hypebae (Mar. 13, 2018), https://hypebae.com/2018/3/diet-prada-fashion-copycat-instagram. 14 Ofiaza, Renz, Virgil Abloh Called Out for His “MARKERAD” IKEA Chair, High Snobiety (May 30, 2018), https://www.highsnobiety.com/p/virgil-a bloh-makerad-ikea-chair-design/. 15 Patos, Robert, Diet Prada Calls out Virgil Abloh for Yet Another Uncredited Design, Hypebeast (June 8, 2018), https://hypebeast.com/2018/6/diet-prada-virgil-a bloh-uncredited-design-hoodie. 16 Stanley, Jack, Diet Prada Traces the Origins of Off-White’s “Crossed Arrows” Logo, Hypebeast (June 21, 2018), https://hypebeast.com/2018/6/off-white-logo-origins-diet-prada-glasgow-airport. 17 Northman, Tora, Diet Prada Calls out Virgil Abloh for Copying Work From a Graphic Designer, Hypebae (Aug. 27, 2018), https://hypebae.com/2018/8/virgil-abloh-off-white-diet-prada-copy. 18 Snowden, Heather, Helly Hansen Suing Off-White Over Alleged Infringement, High Snobiety (July 13, 2018), https://www.highsnobiety.com/p/helly-hansen-suing-off-white/. 19 St. Felix, Doreen, Virgil Abloh, Menswear’s Biggest Star, The New Yorker (Mar. 18, 2019), https://www.newyorker.com/magazine/2019/03/18/virgil-abloh-menswears-biggest-star.

8

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 14 of 29

unsurprising that Mr. Abloh, who grew up in the 1990s when Walker Wear was especially influential, appears to be applying his “cheat code” to Walker Wear’s intellectual property.20

D. Saks’ and Farfetch’s Role in Selling the Infringing Jacket

Starting in at least February 2021, Defendant Saks was selling the Infringing Jacket on its

website, www.saksfifthavenue.com, for $1,405. Defendant Farfetch’s was also selling the

Infringing Jacket on its website, farfetch.com, for $2,234. As of August 4, 2021, the Infringing

Jacket was still available for sale on Saks’ website, although it was marked as sold out as of the

filing of the complaint. 21 Saks’ Instagram account, which has 1.8 million followers, also ran targeted ads promoting the Infringing Jacket and providing a link to the Saks website to purchase the Infringing Jacket. See supra at 6. The Infringing Jacket continues to be available for sale on

farfetch.com.22

E. Confusion and Resulting Harm to Walker Wear

Defendants’ infringement has already caused confusion among consumers who believe that the Infringing Jacket is associated with Walker Wear. After the initial Instagram direct message alerting her to the existence of the Infringing Jacket on February 27, 2021, Ms. Walker posted a screenshot of the Saks advertisement featuring the Infringing Jacket on her personal

Instagram account (@iamaprilwalker). Walker Decl. ¶¶ 20-21. Several potential customers responded to the post congratulating Ms. Walker for having her designs offered at Saks and

20 See Friedman, Vanessa, Should We Really Embrace ‘90s Fashion?, (May 15, 2021), https://www.nytimes.com/2021/05/15/style/90s-fashion.html (New York Times’ fashion director and chief fashion critic writing that people “may feel as if the ’90s are dominant at the moment in part because designers are generally fa scinated with the clothing they grew up with a nd that formed their a esthetics,” a nd a s a result, “a s increasingly grab attention and creative director positions . . . they’d inevitably want to try their hands at reinventing the influences of their youth.”). 21 Off-White Dia gonal Va rsity Bomber Ja cket, Sa ks Fifth Avenue, https://www.saksfifthavenue.com/product/off- white-dia gonal-varsity-bomber-jacket-0400013439913.html (la st a ccessed August 20, 2021). 22 Off-White monogram print bomber jacket, Farfetch, https://www.farfetch.com/shopping/men/off-white- monogram-print-bomber-jacket-item-16049238.aspx (la st accessed August 20, 2021).

9

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 15 of 29

featured in Saks’ advertising, before realizing that the Infringing Jacket was not made by Ms.

Walker. Id. ¶ 21. At that point the congratulatory messages turned into expressions of disbelief and disgust. For example:

10

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 16 of 29

F. Defendants’ Continued Infringement

On June 1, 2021, Walker Wear, through its counsel, wrote to Off-White and Saks to notify both parties of their infringing activities. Ex. 1 to the accompanying Declaration of Ilya

Feldsherov (“Feldsherov Decl.”). Counsel for Walker Wear spoke with counsel for Off-White and Saks on June 23, 2021, explaining the basis for their concern, including that actual confusion had already occurred. Walker Wear also sent a follow-up letter to Saks on June 29, 2021. Id.,

Ex. 2. Notwithstanding that notice, and notwithstanding their knowledge of evidence of actual confusion, on July 6, 2021, Off-White and Saks flatly refused to cease their infringing activities.

Specifically, Counsel for Off-White and Saks informed Ms. Walker’s counsel that they would not cease using the Mark or selling the Infringing Jacket or other goods featuring the Mark. On

11

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 17 of 29

August 20, 2021, Walker Wear, through its counsel, sent a final letter to counsel for Off-White and Saks, responding to the points raised in the July 6, 2021 letter and informing Saks and Off-

White that Walker Wear would move forward with its complaint and this motion. Id., Ex. 3. As of the time of this filing, Defendants are still selling the Infringing Jacket on www.farfetch.com.23

III. ARGUMENT

A court may grant a preliminary injunction in a trademark case where a plaintiff establishes “(a) irreparable harm and (b) either (1) likelihood of success on the merits or (2)

sufficiently serious questions going to the merits to make them a fair ground for litigation and a

balance of hardships tipping decidedly toward the party requesting the preliminary relief.”

Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). Likelihood of

confusion—here, established indisputably through actual confusion, see Flushing Bank v. Green

Dot Corp., 138 F. Supp. 3d 561, 589 (S.D.N.Y. 2015) (“there can be no more positive or

substantial proof of the likelihood of confusion than proof of actual confusion”)—“establishes

both a likelihood of success on the merits and irreparable harm.” Hasbro, Inc. v. Lanard Toys,

Ltd., 858 F.2d 70, 73 (2d Cir.1988).

A. Walker Wear is Likely to Succeed on Its Claims Against Defendants

1. Walker Wear is Likely to Succeed on its Trademark Infringement Claims

To succeed on the merits in a trademark infringement case, the plaintiff “must prove that

its mark is entitled to protection and, even more important, that the defendant’s use of its own

23 Off-White Diagonal Varsity Bomber Jacket, Saks Fifth Avenue, https://www.saksfifthavenue.com/product/off- white-dia gonal-varsity-bomber-jacket-0400013439913.html (la st a ccessed July 29, 2021); Off-White monogram- print bomber jacket, Farfetch, https://www.farfetch.com/shopping/men/off-white-monogram-print-bomber-jacket- item-16049238.aspx.

12

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 18 of 29

mark will likely cause confusion with plaintiff’s mark.” Gruner + Jahr USA Pub., a Div. of

Gruner + Jahr Printing & Pub. Co. v. Meredith Corp., 991 F.2d 1072, 1074 (2d Cir. 1993).

a. Walker Wear Has Valid, Protectable Rights in the Mark

A mark is protectable if it is “sufficiently ‘distinctive’ to distinguish the registrant’s

goods from those of others,” either inherently or “by virtue of having acquired a ‘secondary

meaning’ in the minds of consumers.” Star Indus., Inc. v. Bacardi & Co., 412 F.3d 373, 381 (2d

Cir. 2005); Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763, 768-79 (1992).24 “[S]tylized

shapes or letters may qualify [for protection as inherently distinctive], provided the design is not

commonplace but rather unique or unusual in the relevant market.” Star Indus., Inc., 412 F.3d at

382. Composite marks that “combine generic words with distinctive lettering, coloring, or other

design elements” are legally protectable. See Courtenay Commc’ns Corp. v. Hall, 334 F.3d 210,

216 (2d Cir. 2003).

The Walker Wear Mark consists of two stylized W’s, centered and slightly overlapping.

The Mark typically appears in silver, set off against a dark blue or black background, to create

the overall impression of the Trade Dress. This shape and color stylization is unique in the

fashion industry, and renders the Mark and Trade Dress inherently distinctive. See Star Indus.,

Inc., 412 F.3d at 383 (a stylized “O” is distinctive in the alcohol industry);

Malletier v. Dooney & Bourke, Inc., 454 F.3d 108, 115-16 (2d Cir. 2006) (stylized “LV” logo,

plus a unique colored pattern, was distinctive).

The Mark has also achieved secondary meaning. Courts look to “advertising

expenditures, consumer studies linking the name to a source, sales success, unsolicited media

24 Wa lker Wea r’s trademark a pplication for the Mark is currently pending a t the USPTO (Seria l No. 90592001). An unregistered mark is still entitled to protection, as long as it would qualify for trademark registration as a trademark. Star Indus., Inc. v. Bacardi & Co., 412 F.3d 373, 381 (2d Cir. 2005).

13

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 19 of 29

coverage of the product, attempts to plagiarize the mark, and length and exclusivity of the mark’s use” to determine whether a mark has achieved secondary meaning. Thompson Med. Co. v.

Pfizer Inc., 753 F.2d 208, 217 (2d Cir. 1985) (citations omitted).

Walker Wear has used the Mark and Trade Dress for nearly thirty years, yielding

substantial sales of products featuring the Mark. Walker Decl. ¶¶ 8, 12. During that time, the

Mark and Trade Dress have received substantial unsolicited industry recognition and media attention. They have been featured on BET and at Fashion Week, profiled in major fashion

industry publications such as Vogue and InStyle, and highlighted in a Netflix documentary. See

supra at 3-4. This media coverage portrays Ms. Walker, Walker Wear, and the products

featuring the Mark and Trade Dress as “single-handedly chang[ing] the way celebrities express

themselves on the red carpet” and discuss the brand’s status as a streetwear fashion pioneer. See

27-24 Tavern Corp. v. Dutch Kills Centraal, No. 14-CV-1625, 2015 WL 5772158, at *10

(E.D.N.Y. Sept. 29, 2015) (articles featuring the senior user “with zeal and enthusiasm weigh in

favor of a finding of secondary meaning”).25

Finally, Defendants’ attempt to capitalize on Walker Wear’s strong position in the

streetwear market by using the Mark is itself strong evidence of the Mark’s secondary meaning.

See Harlequin Enterprises Ltd. v. Gulf & W. Corp., 644 F.2d 946, 950 (2d Cir. 1981) (calling

Defendant’s attempts to capitalize on plaintiff’s trademark “[p]erhaps the most significant

evidence of secondary meaning in this case”).

25 Defendants have argued, in response to Plaintiff’s cease-and-desist letter, that “Walker Wear’s use of the Walker WW Mark appears to be more historical in nature.” Not so. Indeed, Walker Wear currently has a sweatshirt featuring the Mark for sale on its website (https://walkerwear.com/collections/featured-items-home/products/mens- crew-neck-terry-sweater-biggie-ww-xxl-mark (last visited August 20, 2021)).

14

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 20 of 29

b. Defendants’ Use Of the Mark Is Likely To Cause Confusion

In the Second Circuit, the following factors are used to assess likelihood of confusion: (1)

the strength of the mark, (2) the similarity of the two marks, (3) the proximity of the products,

(4) actual confusion, (5) the likelihood of plaintiff’s bridging the gap, (6) defendant’s good faith

in adopting its mark, (7) the quality of defendant’s products, and (8) the sophistication of the

consumers. Polaroid Corp. v. Polarad Elecs. Corp., 287 F.2d 492, 495 (2d Cir. 1961).26

Among these factors, “[t]here can be no more positive or substantial proof of the likelihood of

confusion than proof of actual confusion.” Savin Corp. v. Savin Grp., 391 F.3d 439, 459 (2d Cir.

2004) (citation omitted). Further, “very little proof of actual confusion [is] necessary to prove

the likelihood of confusion.” Id.

i. Actual Confusion Between the Parties’ Marks Has Already Occurred and Is Likely to Continue

As demonstrated by multiple Instagram posts above, Defendants’ use of the Mark has already caused confusion and will continue to cause confusion among consumers who are likely to believe that the Infringing Jacket is affiliated with Walker Wear. See, e.g., Museum of .

Art v. MOMACHA IP LLC, 339 F. Supp. 3d 361, 378 (S.D.N.Y. 2018) (crediting “multiple

anecdotal instances of actual confusion”); American Ort, Inc. v. Israel, No. 07-CV-2332, 2007

WL 2049733, at *8 (S.D.N.Y. July 17, 2007) (holding that actual confusion factor weighed in favor of plaintiff when “at least one of Plaintiff’s donors has already been confused by

Defendant’s use of [Plaintiff’s] mark”). Walker Wear is aware of numerous instances of actual confusion experienced by consumers when viewing the Saks Instagram advertisement featuring the Infringing Jacket – an advertisement featuring a “swipe up” link to purchase the Infringing

26 The likelihood of confusion a nalysis is the sa me under New York sta te la w. See Berkshire Fashions, Inc. v. Sara Lee Corp., 725 F. Supp. 790, 794-95 (S.D.N.Y. 1989).

15

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 21 of 29

Jacket, essentially a point-of-sale transaction. Walker Decl. ¶¶ 20, 21; Maldonado Decl. ¶ 9. It

follows logically that additional consumers would be confused by the advertisement and

continue on to purchase the Infringing Jacket, all the while believing it to be a Walker Wear

product. Moreover, in the website context, under the doctrine of initial interest confusion,

“[e]ven if the customer quickly becomes aware of the competing source’s actual identity and can rectify the mistake, the damage to the first user” may already have been done. BigStar Entmn’t,

Inc. v. Next Big Star, Inc., 105 F. Supp. 2d 185, 207 (S.D.N.Y. 2000).

ii. Walker Wear’s Mark is Strong

“[T]he strength of a mark depends ultimately on its distinctiveness, or its ‘origin- indicating’ quality, in the eyes of the purchasing public.” McGregor-Doniger Inc. v. Drizzle

Inc., 599 F.2d 1126, 1131 (2d Cir. 1979), superseded on other grounds by Fed. R. Civ. P. 52(a).

Proof of secondary meaning is “relevant to and probative of the strength of a mark and hence

useful in assessing the likelihood of confusion.” Id. at 1132. As discussed supra II.B, the Mark

has achieved secondary meaning by virtue of its prolific use over nearly three decades and, in

particular, its substantial media coverage during that time. Walker Wear’s Mark thus is strong

and identifies its goods as coming from Walker Wear. As a result, consumers have come to

associate the Mark with Walker Wear.

iii. The Two Marks Are Nearly Identical

In assessing the similarity of the marks, courts look to “1) whether the similarity between

the two marks is likely to cause confusion and 2) what effect the similarity has upon prospective

purchasers” based on how the marks “are presented in the marketplace.” Sports Auth., Inc. v.

Prime Hospitality Corp., 89 F.3d 955, 962 (2d Cir. 1996). Courts “must analyze the mark’s

overall impression on a consumer, considering the context in which the marks are displayed and

‘the totality of factors that could cause confusion among prospective purchasers.’” Malletier v.

16

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 22 of 29

Burlington Coat Factory Warehouse Corp., 426 F.3d 532, 537 (2d Cir. 2005) (citing Gruner +

Jahr USA Pub., 991 F.2d at 1078).

As can be seen on the next page, the overall impression of the Infringing Jacket is that of a markedly similar design as the products featuring the Mark and the Trade Dress. The

Infringing Jacket displays the familiar two W’s in silver against a dark background on a casual, streetwear-style jacket. The W’s themselves closely resemble those on Walker Wear’s designs, broadly outlined with flat serifs (i.e., extending tips) at the top of each W. Where, as here, a defendant has adopted a strongly similar mark, there is a presumption of likelihood of confusion.

See, e.g., GTFM, Inc. v. Solid Clothing Inc., 215 F. Supp. 2d 273, 297 (S.D.N.Y. 2002) (where similarities “are so strong that they could only have occurred through deliberate copying[,] . . . a presumption arises that the copier has succeeded in causing confusion”).

iv. Walker Wear and Off-White Both Compete With Each Other in the Streetwear Fashion Market and To the Extent Any Gap Exists, Walker Wear is Likely to Bridge It

The “proximity of the products” factor considers “whether the two products compete with each other.” Lang v. Ret. Living Pub. Co., 949 F.2d 576, 582 (2d Cir. 1991). The “focus of the

17

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 23 of 29

product proximity inquiry is ‘the likelihood that customers may be confused as to the [s]ource of the products, rather than as to the products themselves.’” Trustees of Columbia Univ. v.

Columbia/HCA Healthcare Corp., 964 F. Supp. 733, 746 (S.D.N.Y. 1997) (quoting McGregor-

Doniger Inc., 599 F.2d at 1134) (alteration in original); Herbko Int’l, Inc. v. Kappa Books, Inc.,

308 F.3d 1156, 1165-66 (Fed. Cir. 2002) (“Even if the goods and services are not identical . . .

they may be sufficiently related in the mind of the consuming public to cause confusion

concerning the source or origin of the goods and services.”).

Walker Wear’s products featuring the Mark and the Trade Dress are in direct competition

with Off-White’s Infringing Jacket. Both products are not only clothing items, but fall specifically within the subgenre of streetwear fashion and thus target the same types of consumers. The close relationship of these goods increases the likelihood that potential

consumers of Walker Wear products featuring the Mark and the Trade Dress will think that the

Infringing Jacket is sponsored by or affiliated with Walker Wear.

The “bridging the gap” factor “examines the likelihood of confusion in light of the

probability that the senior user will enter the junior user’s market in the future.” Sunenblick v.

Harrell, 895 F. Supp. 616, 630 (S.D.N.Y. 1995). Where, as here, however, the “products are

already in competitive proximity, there is really no gap to bridge, and this factor is irrelevant to

the Polaroid analysis.” Star Indus., Inc., 412 F.3d at 387.27

v. Off-White Adopted the Mark in Bad Faith

This factor considers whether the Defendant adopted the mark “to exploit the good will and reputation of a senior user by adopting the mark with the intent to sow confusion between

27 It is likewise irrelevant that Off-White products are sold at a higher price point than Walker Wear products. See Charles of the Ritz Grp. Ltd. v. Quality King Distributors, Inc., 832 F.2d 1317, 1322 (2d Cir. 1987) (concluding that, even if there were distinctly separate markets for luxury goods versus mass market goods, “the barrier between the two is sufficiently porous” to allow the senior user to pass between them easily).

18

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 24 of 29

the two companies' products.” Star Indus., 412 F.3d at 388. Bad faith may be inferred where a

junior user had actual or constructive knowledge of the senior user’s mark. Id.

Given Ms. Walker’s iconic status in the streetwear fashion industry and Mr. Abloh’s knowledge of the industry, Off-White was almost certainly aware of the Mark prior to designing, producing, and selling the Infringing Jacket. The similarity of the marks—particularly given that

“WW” appears to have no particular significance for a brand called “Off-White”—further suggests Defendants’ bad faith in using the Mark. See MetLife, Inc. v. Metro. Nat'l Bank, 388 F.

Supp. 2d 223, 234-35 (S.D.N.Y. 2005) (finding “circumstantial evidence of bad faith” because

“the similarity between the parties’ marks is such that it strains credulity to believe that

[Defendants] . . . were not consciously influenced” by Plaintiff’s mark); Charles of the Ritz Grp.

Ltd. v. Quality King Distributors, Inc., 832 F.2d 1317, 1322 (2d Cir. 1987). (defendant’s

awareness of the plaintiff’s product, as well as the fact that the “overall image, style, and

appearance” were copied point to bad faith). That Defendants refused to cease using the Mark

even after being put on notice of their infringement after Walker Wear sent a cease-and-desist

letter further supports a finding a of bad faith. 24 Hour Fitness USA, Inc. v. 24/7 Tribeca

Fitness, LLC., 447 F. Supp. 2d 266, 282 (S.D.N.Y. 2006).

Indeed, Mr. Abloh has openly stated that his design approach involves taking the designs

and intellectual property of other designers, such as Ms. Walker. He considers changing an

original design, such as Ms. Walker’s Trade Dress, by three percent a “cheat code” to circumvent

the process of creating original designs. See supra at 8.

2. Walker Wear is Likely to Succeed on its Dilution Claims

To prevail on a trademark dilution claim, a plaintiff must establish that (1) their mark is

famous; (2) the defendants use the mark in commerce; (3) defendant’s use of the junior mark

began after the senior mark became famous; and (4) dilution is likely to occur. See Burberry

19

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 25 of 29

Ltd. & Burberry USA v. Designers Imports, Inc., No. 07-CV-3997, 2010 WL 199906, at *7

(S.D.N.Y. Jan. 19, 2010); 15 U.S.C. § 1125(c)(1).28

Walker Wear’s Mark is famous, having appeared in numerous videos, been worn by celebrities, featured in a Netflix documentary, and broadly covered in national publications such as InStyle and Vogue. See supra II.B. The Mark has been in continuous use for decades, during which time Walker Wear invested substantial time and money into promoting the Mark. See, e.g., Grand v. Schwarz, 15-CV-8779, 2016 WL 2733133, at *5 (S.D.N.Y. May 10, 2016)

(Plaintiff’s investment of significant time and money relevant to fame inquiry). Defendants’ use of the mark indisputably began long after Walker Wear first began using the Mark nearly thirty years ago and became famous in the 1990s. Such unauthorized use “whittl[es] away” at Walker

Wear’s Mark and thus tarnishes and blurs its distinctive quality. See Disney Enterprises, Inc. v.

Sarelli, 322 F. Supp. 3d 413, 439 (S.D.N.Y. 2018).

3. Walker Wear Is Likely To Succeed On Its Unfair Competition Claims

To demonstrate a likelihood of success on a federal unfair competition claim, a plaintiff must show a likelihood of confusion or actual confusion, as well as Defendant’s bad faith. Tri-

Star Pictures, Inc. v. Unger, 14 F. Supp. 2d 339, 363-64 (S.D.N.Y. 1998). Walker Wear has demonstrated both actual confusion and the likelihood of ongoing confusion due to the strength of Walker Wear’s Mark, the similarity of Walker Wear’s Mark and the Infringing Jacket, and the parties’ products being in direct competition in the streetwear fashion market. See MyPlayCity,

Inc. v. Conduit Ltd., No. 10-CV-1615, 2012 WL 1107648, at *17 (S.D.N.Y. Mar. 30, 2012)

(“The elements required to succeed on these [trademark infringement and unfair competition]

28 The elements of a trademark dilution claim under New York General Business Law § 360-l “track those required under the Lanham Act.” En gine Cap. Mg mt., LP v. En g in e No . 1 GP LLC, No. 21 CIV. 149 (VM), 2021 WL 1372658, at *13 n.12 (S.D.N.Y. Apr. 12, 2021).

20

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 26 of 29

claims are substantially the same and are examined together”). Walker Wear has also established that Defendant adopted the infringing mark in bad faith. See supra at 18-19;

Heritage of Pride, Inc. v. Matinee NYC, Inc., No. 14CV-4165, 2014 WL 12783866, at *13

(S.D.N.Y. June 20, 2014) (bad faith as an element of an unfair competition claim “is

indistinguishable from that of the corresponding Polaroid factor”).

4. Walker Wear Is Likely To Succeed On Its Deceptive Acts And Practices Claim Under New York General Business Law § 349

By selling the Infringing Jacket, Defendants are engaging in consumer-oriented

conduct “that is deceptive or misleading in a material way” and Walker Wear “has been injured

by reason thereof.” See Oswego Laborers’ Local 214 Pension Fund v. Marine Midland Bank,

N.A., 85 N.Y.2d 20, 25 (1995); see Koch v. Greenberg, 626 F. App’x 335, 340 (2d Cir. 2015)

(consumer-oriented conduct “is broadly interpreted and requires merely that the conduct at issue

have a broader impact on consumers at large” (internal quotations and citation omitted)).

The Infringing Jacket is, by its nature, misleading to consumers because it suggests an

affiliation with Walker Wear where none exists. See GTFM, 215 F. Supp. 2d at 301-02 (granting

preliminary injunction where defendant violated § 349 when it intentionally used a mark “in a

manner confusingly similar to [plaintiff's] use of [its own] trademark, and causing actual

confusion.”). And this Court has recognized that a § 349 violation may lie where defendants

“place into the stream of commerce goods likely to confuse consumers as to their true source of

origin.” Burberry Ltd. v. Euro Moda, Inc., No. 08-CV-5781, 2009 WL 1675080, at *16

(S.D.N.Y. June 10, 2009); see also Burberry Ltd. & Burberry USA, 2010 WL 199906, at *8;

New York City Triathlon, LLC v. NYC Triathlon Club, Inc., 704 F. Supp. 2d 302, 325 n.7

(S.D.N.Y. 2010).

21

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 27 of 29

B. Walker Wear Will Suffer Irreparable Harm if Injunctive Relief Is Not Granted

“[A] trademark owner’s loss of goodwill and ability to control its reputation constitutes

irreparable harm sufficient to satisfy the preliminary injunction standard.” New York City

Triathlon, LLC, 704 F. Supp. 2d at 325. Further, “where there is likely confusion in an action for

trademark infringement, the requisite irreparable harm is established as a matter of course.” Id.

at 325-26. 29 Thus, a “plaintiff who establishes that an infringer’s use of its trademark creates a

likelihood of consumer confusion generally is entitled to a presumption of irreparable injury.”

Weight Watchers Int’l, Inc. v. Luigino’s, Inc., 423 F.3d 137, 144 (2d Cir. 2005).30

Walker Wear has established that it will suffer irreparable harm if Defendants are not

enjoined from using the Mark. Defendants’ use of the Mark creates not only a likelihood of

confusion, but has already generated actual confusion that is likely to continue if Defendants are not enjoined from using the Mark and selling the Infringing Jacket. Such confusion will inevitably result in Walker Wear losing the “ability to control its reputation and the services offered under its name and mark.” New York City Triathlon, 704 F. Supp. 2d at 325; see Walker

Decl. ¶ 24. “This harm cannot be quantified and is irreparable,” New York City Triathlon, 704 F.

Supp. 2d at 325, and thus a preliminary injunction to prevent further harm is warranted.

C. The Balance of Hardships Favors Walker Wear

This Court may also enter an injunction because there are “sufficiently serious questions

going to the merits to make them a fair ground for litigation plus a balance of hardships tipping

decidedly” in the plaintiff’s favor. Malletier, 426 F.3d at 537.

29 As discussed above, see supra II.F, Wa lker Wear ha s a ttempted to resolve the parties’ dispute without resorting to litigation. The time spent doing so does not undermine the presumption of irreparable injury. See Bulman v. 2BKCO, Inc., 882 F. Supp. 2d 551, 565 (S.D.N.Y. 2012). 30 A finding of likely dilution a lso creates a presumption of irreparable harm. See Ryan v. Volpone Stamp Co., 107 F. Supp. 2d 369, 404 (S.D.N.Y.2000).

22

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 28 of 29

If Defendants are not enjoined from using Walker Wear’s Mark, Walker Wear will suffer irreparable harm to its goodwill and reputation. See supra at 22. Defendants, on the other hand, will lose only potential profits on the Infringing Jacket. See Warner-Lambert Co. v. Northside

Dev. Corp., 86 F.3d 3, 8 (2d Cir. 1996) (“loss of consumer goodwill” to plaintiff is

“unquantifiable” and “not accurately compensable by monetary damages” whereas infringer’s harm consists solely of “loss of profits on sales” which is quantifiable and compensable after trial). Additionally, Defendants offer a large array of alternative designs and products for sale, so they will not be harmed if unable to sell the Infringing Jacket at issue here. Thus, Walker

Wear also meets this alternative standard, and the Court should grant the request for a preliminary injunction.

IV. CONCLUSION

For the foregoing reasons, Walker Wear respectfully requests that this Court grant its

Motion For a Preliminary Injunction.

Respectfully submitted,

WALKER WEAR, LLC,

By its attorneys,

/s/ Ilya Feldsherov Ilya Feldsherov 7 World Trade Center 250 Greenwich Street New York, New York 10007 (t) 212-230-8800 (f) 212-230-8888 [email protected]

Michael J. Summersgill* Joseph J. Mueller* Jason H. Liss* Tess Ambrose Foley*

23

Case 1:21-cv-07073 Document 10 Filed 08/20/21 Page 29 of 29

Wilmer Cutler Pickering Hale and Dorr LLP 60 State Street Boston, MA 02109 Tel.: (617) 526-6261 [email protected] [email protected] [email protected] [email protected]

*pro hac vice applications to be filed

Counsel for Plaintiff Dated: August 20, 2021

24