Williamson says she was unaware of that risk when she walked into the courtroom on November 7. Soon after she and her lawyers arrived, they were handed copies of the judge's 45-page tentative order. Sitting in the back of the room, Williamson tried to absorb as much of it as possible while she waited for her case to be called.
At first glance, the order was discouraging. Judge Margaret Morrow said she was planning to deny Glow's motion for a preliminary injunction. But on a closer reading, Williamson was able to take some comfort in the details. The judge found that Glow probably did have a protectable trademark, if not a terribly strong one, and she felt the two sides came out even on the confusion issue, with some points favoring Glow and others favoring the defense. On the points that Glow lost, moreover, Judge Morrow clearly didn't have all of the evidence. In any event, Williamson could put aside her main fear: the case wasn't being thrown out. Then the hearing began, and everything went to pieces.
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."
