If you believe your Card or PIN has been lost or stolen or that someone has or may transfer or take money from your Card Account without your permission, report it by calling the Customer Service number below as soon as possible. You can also write to us at Direct Express, Payment Processing Services, PO Box 540190, Omaha, NE 68154-0190 or visit our website at www.usdirectexpress.com. Calling us is the fastest way to report this loss. Once your Card or PIN is reported to us as lost, stolen or destroyed, your Card will be cancelled, and you will have no liability for further Transactions involving the use of the canceled Card.
If you believe your Card or PIN has been lost or stolen or that someone has or may transfer or take money from your Card Account without your permission, report it by calling the Customer Service number below as soon as possible. You can also write to us at Direct Express, Payment Processing Services, PO Box 245998, San Antonio, TX 78224-5998 or visit our website at www.usdirectexpress.com. Calling us is the fastest way to report this loss. Once your Card or PIN is reported to us as lost, stolen or destroyed, your Card will be cancelled, and you will have no liability for further Transactions involving the use of the canceled Card.
Western Michigan was quick to reply, loading the bases with only one out in its half of the third. After Noel induced Heckaman to pop up to Peterson at first, the freshman pitcher walked in the go-ahead run with four-straight balls to Danielle Daughtry. Center fielder Nikki Nicosia kept the WMU lead to 2-1 by running down a long fly ball to right center by Amy Fleming, helping the Broncos leave the bases loaded.
Paul W. Garrity, Jonathan Cooperman, Kelley Drye & Warren LLP, New York City, for Atlantic Horizon International, Inc., Robert Ferreira, Alice Ricafort, Elysee Cosmetics, Ltd., Elysee Beauty Products, Ltd., and Patrick Bousfield.
CELLULIFT is a massage system consisting of a suction system and rollers that knead the thighs or arms in order to reduce the appearance of cellulite. See Tr. at 46 (Ramchandani); Pl. Exs. 47-48. In February 1997, Ramchandani and Sivan attended a trade show in Germany, see Tr. at 47-48 (Ramchandani), 386 (Sivan), where they observed a massage system manufactured by the Phillips Company, known as Cellesse. See Tr. at 47-48 (Ramchandani); Pl.Ex. 15. They purchased the product and brought it back to the United States. See Tr. at 47-48 (Ramchandani), 386 (Sivan). They began experimenting with the product and brainstorming about how they could improve upon it. See Tr. at 47-48 (Ramchandani), 386 (Sivan). Tactica came up with the idea of using a cream with the product, as well as adding a suction and heating mechanism. See Tr. at 48-49 (Ramchandani). Tactica conveyed its ideas and a brochure for Cellesse to Bousfield.
Starting in May 1998, Tactica began to run print advertisements for CELLULIFT. See Pl.Ex. 46. In total, Tactica has spent $1,558,567.00 on print advertising for CELLULIFT in the United States. See id. These advertisements have run in national magazines such as First for Women, Soap Opera Update, Woman's World, Mademoiselle, Redbook, Elle, Vogue, Mirabella, Cosmopolitan and many others. See id. During this year, Tactica's advertisements for CELLULIFT have been limited to Skymall, Woman's Own and Valassis. See id. In addition, Tactica has spent additional monies on \"co-op\" advertising advertising contained in department store supplements. See Sivan Decl. 50. Tactica has spent approximately $3 million on television advertisements and produced an infomercial for CELLULIFT. See Sivan Decl. 42, 50; Tr. at 391 (Sivan). For the weeks ending August 8, 1998 and November 2, 1998, Tactica's infomercial for CELLULIFT was respectively ranked as the number five and fourteen direct response spot. See Pl. Exs. 53 and 57. Tactica also advertises CELLULIFT on its websitewww.IGIA.com.
It is well established that the standard test of ownership is priority of use. See generally 2 McCarthy 16.1 (\"[O]wnership of trademark ... rights in the United States is obtained by actual use of a symbol to identify the goods or service of one seller and distinguish them from those offered by others.\"). Therefore, \"[t]he user who first appropriates the mark obtains an enforceable right to exclude others from using it, as long as the initial appropriation and use are accompanied by an intention to continue exploiting the mark commercially.\" H.W. Carter & Sons v. William Carter Co., 913 F. Supp. 796, 802 (S.D.N.Y.1996) (quoting La Societe Anonyme des Parfums Le Galion v. Jean Patou, Inc., 495 F.2d 1265, 1271 (2d Cir.1974)). It is well settled that foreign use of a trademark cannot form the basis for establishing priority in the United States. See Person's Co. v. Christman, 900 F.2d 1565, 1568-69 (Fed.Cir.1990); see also Buti v. Impressa Perosa, S.R.L., 935 F. Supp. 458, 468 (S.D.N.Y.1996). When \"two or more companies adopt the same mark, basic rules of trademark priority determine use and ownership of the mark.\" Buti, 935 F. Supp. at 468.
 Bousfield testified that Tactica did not contribute to the idea for this product. According to Bousfield, he became aware of Cellesse in August 1997 and purchased the product a month later. He then had Aole Boysen, his designer, make drawings of an improved version of the product. Bousfield took the product and drawings to the October 1997 meeting. See Tr. at 211-16 (Bousfield). Although Bousfield and many discussions with Ramchandani and Sivan from August to October 1997, he testified that he never told them of the idea for this product because he wanted to \"surprise\" them. See Tr. at 211-16 (Bousfield). Bousfield's testimony on this issue is not credible. 1e1e36bf2d