Whose Brand Is It, Anyway?

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Almost at once, Aaronson got into an argument with the judge. In her tentative order, Aaronson asserted, the judge seemed to agree with Glow on the likelihood of confusion. Judge Morrow said Aaronson was misreading the order. She didn't believe the two Glow marks were all that similar.

"These marks are the same," Aaronson insisted. "The primary term that is used in the defendant's product is Glow.... Why did they need to take my client's goodwill?...They are going to put my client out of business."

"And where is the evidence of that, Mr. Aaronson?" the judge asked pointedly.

"We would like an opportunity to present it," he said.

"You've had lots of opportunity to present lots of evidence," the judge replied. "Why isn't it already in the record?"

Aaronson argued that some of the evidence was in the record, but the judge was clearly unconvinced. After Aaronson sat down, J.Lo's attorney Lisa Pearson took the floor and zeroed in on the same issue. The record, she contended, contained little evidence to support Glow's claims and little evidence that Glow had a market presence beyond Los Angeles. Just because Williamson was using the name Glow on some natural bath and body products she sold in her little shop in West Hollywood, Pearson argued, she shouldn't be allowed to block Lopez and Coty from using the name Glow by J.Lo everywhere else in the country.

Williamson watched and listened, barely able to contain herself: "They depicted me as a little mom-and-pop store in West Hollywood while they're holding up a product of mine they'd bought in New York. I thought, 'How can they say that if they know it's not true?"

Toward the end of the hearing, Aaronson requested permission for Yale Lewis to speak, and the judge agreed. Lewis acknowledged that the record contained little information about the damage Williamson would suffer if the preliminary injunction were not granted. But given the stakes that were involved -- specifically the possibility that her business might not survive -- he asked the judge to defer a final decision until he and Aaronson had a chance to present evidence of irreparable harm.

The judge asked the defense to respond. "Well, they put in a lot of new evidence in their reply papers, your honor," Pearson said. "And I have not vented about how sandbagged I felt about that ... I must say I object to giving them a third bite at the apple."

Judge Morrow said she'd consider the request, but added, "I must agree with Ms. Pearson that the initial motion papers were about as devoid of facts as is possible.... And that is not good practice." The judge then said they'd reconvene on December 16 to schedule a trial date. At that time, she would either allow Glow to present additional evidence or simply issue her final decision on the preliminary injunction.

On December 16, when Williamson, Aaronson, and Lewis showed up for the scheduling conference, the final order was waiting for them. On the basis of the evidence in the record, Judge Morrow denied Glow Industries' motion for a preliminary injunction. In the conference itself, however, she strongly urged both sides to reach a settlement. Addressing Williamson and her attorneys, she said that "one of the major problems [you will have] is going to be proving that you have a protectable trademark in any kind of significant geographic area. And if that is the case, then you never get to likelihood of confusion."

But the judge also had a warning for Lopez and Coty. On the confusion issue, she told Lisa Pearson, it had been a very close call, even though a lot of the evidence wasn't in the record. When that evidence was introduced at trial, "It could easily swing the other way. And the more money Coty and Ms. Lopez put into this product over time, the harder any permanent injunction will fall" if they lose.

Morrow then proceeded to set a trial date -- in the middle of the next holiday shopping season.

"The Damage Has Been Done"

In the wake of Judge Morrow's decision, Terri Williamson's life has changed drastically. If running Glow Industries used to be two full-time jobs, she says she's now added a third: legal assistant. From 6 a.m. to 1 p.m., she works on Glow business. From 1 p.m. to 8 p.m., she works on her case. She does it seven days a week. "If you'd come by a week ago," she says, showing a visitor the living room and dining room of her Santa Monica home, "you'd have seen this whole area covered with documents that needed to be tagged and stamped. We had to get them ready as part of the discovery process."

Following the November hearing, she asked Yale Lewis to take over as her lead attorney. In February, she parted company with her original attorney, Arthur Aaronson. "I've learned a lot of lessons," she says, "and this is one of them. From the beginning, from the time you file for a trademark, you need to be represented by a firm capable of handling any problems that might arise. It's worth whatever it costs. And if you do run into a problem, make sure you bring in an experienced litigator right away."

"Terri doesn't understand that I have a lot of litigation experience," says Aaronson. "I've been practicing law for 28 years, and I've litigated hundreds of cases. But getting a preliminary injunction is a tough hill to climb. I think that the judge was wrong to deny it. I also think Terri will win her case in the end."

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Bo Burlingham

Burlingham joined Inc. in 1983. An editor at large, he is the author of Small Giants: Companies That Choose to Be Great Instead of Big. The book was a finalist for the Financial Times/Goldman Sachs Business Book of the Year Award in 2006. Burlingham is also the co-author with Norm Brodsky of The Knack; and the co-author with Jack Stack of The Great Game of Business and A Stake in the Outcome.

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