Contract analysis

I. INTRODUCTION AND PERSONAL BACKGROUND

1. My name is Rachel Dominguez. I am over eighteen (18) years of age and am competent to testify to the matters set forth herein. I make this declaration of my own personal knowledge, and if called as a witness, I could and would testify competently to the facts stated herein.

2. I am currently employed as Vice President, Brand Management of Meridian Consumer Brands LLC ("MCB"). My business address is 450 Park Avenue South, 14th Floor, New York, New York 10016. I have held the position of Vice President, Brand Management since January 2020, and I have been employed by MCB continuously since September 2017. Prior to my promotion, I served as Director, Brand Strategy for MCB's household clea

3. In my current role as Vice President, Brand Management, I am responsible for overseeing brand strategy, trademark portfolio management, packaging design, advertising campaigns, and brand-integrity monitoring across all MCB product lines. I work closely with MCB's marketing, sales, legal, and product-development teams, and I report directly to MCB's Chief Marketing Officer. I have direct access to, and regularly re

4. I submit this declaration under penalty of perjury pursuant to 28 U.S.C. § 1746 in support of MCB's Motion for Preliminary Injunction against Brindoval Home Goods Inc. ("Brindoval"). The purpose of this declaration is to provide the Court with the factual basis supporting MCB's contention that Brindoval's manufacture, distribution, and sale of household cleaning products under the "MERIDIAN FRESH" mark and confusi

II. OVERVIEW OF MERIDIAN CONSUMER BRANDS LLC

5. MCB is a Delaware limited liability company headquartered at 450 Park Avenue South, 14th Floor, New York, New York 10016. MCB is a consumer packaged goods company that develops, manufactures, markets, and distributes branded products across three primary product verticals: (a) household cleaning products, (b) personal care products, and (c) home fragrance products. MCB's product portfolio includes several well-kno

6. MCB's products are distributed through major national and regional grocery chains, club stores, mass-market retailers, drug store chains, and e-commerce channels, including Penmark Holdings, Adriatic Corporation, and Walmart.com, among others. MCB's products are available to consumers in all fifty (50) states and the District of Columbia.

7. For the fiscal year ended December 31, 2022 (projected based on year-to-date results through October 2022 and management forecasts for November and December 2022), MCB's total consolidated revenue was approximately $387 million. MCB employs approximately 1,200 people across its corporate headquarters in New York, its manufacturing facilities in Trenton, New Jersey and Charlotte, North Carolina, and its distributio

8. MCB's majority equity holder is Waypoint Capital Partners LLC ("Waypoint"), a mid-market private equity firm headquartered in New York, New York. Waypoint acquired MCB in 2019 in a transaction valued at approximately $625 million. Since Waypoint's acquisition, MCB has invested significantly in brand building, product innovation, and distribution expansion, with particular emphasis on the MERIDIAN household cleanin

9. MCB's Chief Executive Officer is Sandra Kwan, and its General Counsel is Thomas R. Hennessy. Both Ms. Kwan and Mr. Hennessy are based at MCB's corporate headquarters in New York.

III. MCB'S MERIDIAN TRADEMARK PORTFOLIO AND HISTORY OF USE A. First Use and Continuous Commercial Use

10. MCB first used the MERIDIAN mark in commerce for household cleaning products in approximately March 2011. The MERIDIAN mark was initially adopted in connection with the launch of MCB's all-purpose cleaning spray, and the mark was subsequently extended to a full line of household cleaning products as the brand grew. The original product launch was supported by targeted marketing efforts in the New York tri-state a

11. Today, the MERIDIAN-branded household cleaning product line includes all-purpose cleaners, glass cleaners, disinfecting sprays, disinfecting wipes, floor cleaners, and bathroom cleaners. All of these products fall within International Class 3 (cleaning preparations) under the Nice Classification system used by the United States Patent and Trademark Office ("USPTO").

12. MCB has continuously and without interruption used the MERIDIAN and MERIDIAN CLEAN marks in interstate commerce from 2011 to the present — a period of over eleven (11) years as of the date of this declaration. At no point during this period has MCB abandoned, discontinued, or suspended its use of the MERIDIAN marks. The marks have been in active, ongoing commercial use throughout this entire period, and MCB has c

13. MCB is the owner of the following federal trademark registrations for the MERIDIAN marks, all of which are currently live and in full force and effect on the Principal Register of the United States Patent and Trademark Office: (a) U.S. Registration No. 4,218,506 — MERIDIAN (standard character mark), registered August 14, 2012, for goods in International Class 3, specifically household cleaning preparations, namel

14. All three of the foregoing registrations are currently active and subsisting. MCB has timely filed all required maintenance documents with the USPTO, including declarations of continued use under Section 8 of the Lanham Act, 15 U.S.C. § 1058, and declarations of incontestability under Section 15 of the Lanham Act, 15 U.S.C. § 1065, for each registration for which such filings were due. All such filings have been

15. True and correct certified copies of the registration certificates for U.S. Registration Nos. 4,218,506, 5,034,771, and 5,589,320 are attached hereto as Exhibit A and incorporated herein by reference. C. The MERIDIAN Brand's Commercial Significance

16. The MERIDIAN-branded household cleaning product line is MCB's flagship brand and its single highest-revenue product line. In fiscal year 2022, MCB's MERIDIAN-branded household cleaning products generated approximately $94.5 million in revenue. This figure represents approximately 24.4% of MCB's total consolidated annual revenue of approximately $387 million. No other single brand in MCB's portfolio accounts for a

17. Products sold under the MERIDIAN and MERIDIAN CLEAN marks are currently stocked in thousands of retail locations nationwide. MCB's MERIDIAN cleaning products are carried by major national grocery chains, including Bramwell Partners LLC, Westvale Partners LLC, and Sundial & Co.; by club stores, including Harborview Enterprises and Westmark Industries; and by mass-market retailers, including Walmart and Target. In

IV. ADVERTISING, PROMOTION, AND BRAND INVESTMENT

18. MCB has made substantial and sustained investments in building, promoting, and protecting the MERIDIAN brand over the course of more than a decade. From 2011 through 2022 — a twelve-year period — MCB invested a cumulative total of approximately $47.2 million in advertising and promotion of the MERIDIAN-branded household cleaning product line. This equates to an average of approximately $3.93 million per year in a

19. MCB's advertising and promotional investments in the MERIDIAN brand have spanned a broad range of channels and media, including but not limited to: (a) National television advertising, including network and cable television commercials airing during primetime and daytime programming, as well as targeted spot buys in key designated market areas; (b) Digital media advertising, including paid social media campaigns

20. In addition to the foregoing advertising expenditures, MCB has expended substantial resources over the past decade developing and maintaining a consistent and cohesive brand identity for the MERIDIAN cleaning line. This brand identity is anchored by several key visual elements, including MCB's distinctive teal-and-white color scheme and the stylized wave device that appears in U.S. Registration No. 5,589,320. The

21. The cumulative effect of MCB's sustained, multi-channel advertising and brand-building investments over a period of more than eleven years has been to build substantial consumer recognition of, and goodwill in, the MERIDIAN marks and associated trade dress. The MERIDIAN brand is recognized by consumers across the United States as a source-identifying indicator for MCB's household cleaning products. This recogniti

22. True and correct copies of representative samples of MCB's advertising and promotional materials for the MERIDIAN cleaning product line from 2011 through 2022 — including print advertisements, digital campaign screenshots, point-of-purchase display photographs, and packaging images — are attached hereto as Exhibit B and incorporated herein by reference.

23. MCB's MERIDIAN-branded household cleaning products have employed a distinctive and consistent trade dress since the product line's initial introduction in 2011. MCB developed this trade dress through a deliberate and strategic design process, working with professional packaging designers and brand consultants, with the specific intent of creating a visual identity that would distinguish MCB's MERIDIAN products fr

24. The key elements of MCB's MERIDIAN trade dress include: (a) A teal-and-white color scheme that is used consistently across all product packaging in the MERIDIAN cleaning line, including spray bottles, trigger sprayers, canister labels, and secondary packaging such as cartons and multipacks; (b) The stylized MERIDIAN logo featuring a distinctive wave device, as registered in U.S. Registration No. 5,589,320, which

25. This trade dress has been used consistently and without material variation across the entire MERIDIAN cleaning product portfolio for over a decade. The overall commercial impression created by the combination of these elements — the teal-and-white color scheme, the wave device, and the clean modern typography — is unique to MCB's MERIDIAN brand and has become strongly associated with MCB's products in the minds o

VI. DISCOVERY OF BRINDOVAL'S MERIDIAN FRESH PRODUCT LINE A. Brindoval Home Goods Inc.

26. Brindoval Home Goods Inc. ("Brindoval") is, upon information and belief, a Minnesota corporation headquartered in Edina, Minnesota. Brindoval operates approximately 148 retail stores across twelve (12) Midwestern and Mountain West states, including Minnesota, Wisconsin, Iowa, Illinois, Indiana, Michigan, Ohio, North Dakota, South Dakota, Montana, Wyoming, and Colorado. In addition to its brick-and-mortar retail l

27. Brindoval is a regional big-box home goods retailer that sells a broad range of household products, including home décor, kitchenware, bedding, bath accessories, and, relevant to this action, household cleaning products. Based on publicly available financial disclosures and industry reports, Brindoval's total revenue for fiscal year 2022 was approximately $2.1 billion, making it a substantial and well-resourced c

28. In or around early July 2022, Brindoval launched a private-label line of household cleaning products under the mark "MERIDIAN FRESH." The MERIDIAN FRESH product line includes, at minimum, the following product types: (a) all-purpose spray cleaner, (b) glass cleaner, (c) disinfecting wipes, and (d) dish soap. These products directly compete with, and substantially overlap, MCB's MERIDIAN-branded cleaning products

29. Based on my observations and the reports of MCB's field sales team, Brindoval's MERIDIAN FRESH products were sold in all 148 Brindoval retail locations and on Brindoval's e-commerce platform at www.crestviewhomegoods.com beginning in or around early July 2022. The products were displayed in the household cleaning aisle of Brindoval's stores, often in close proximity to national-brand cleaning products, including,

30. I first became aware of Brindoval's MERIDIAN FRESH products in approximately mid-August 2022, when members of MCB's field sales team in the Midwest region reported seeing the products on shelves at multiple Brindoval retail locations. Upon receiving these reports, I personally reviewed photographs of the MERIDIAN FRESH products and packaging taken by our sales team, and I immediately recognized the potential for

31. Following the discovery of Brindoval's MERIDIAN FRESH products, MCB's trademark counsel conducted a thorough investigation. As part of that investigation, MCB's counsel identified that Brindoval had filed U.S. trademark application Serial No. 97/412,558 with the USPTO on May 12, 2022, seeking registration of the mark MERIDIAN FRESH (standard character mark) for goods in International Class 3. The filing of this a

32. Brindoval's application, Serial No. 97/412,558, was subsequently examined by the USPTO and published for opposition in the Official Gazette on September 6, 2022. MCB, through its trademark counsel, is taking appropriate steps to oppose the registration of Brindoval's MERIDIAN FRESH mark in proceedings before the Trademark Trial and Appeal Board of the USPTO.

VII. CONFUSING SIMILARITY OF MARKS AND TRADE DRESS A. Similarity of the Word Marks

33. Brindoval's mark "MERIDIAN FRESH" incorporates MCB's registered mark "MERIDIAN" in its entirety as the dominant first word of the mark. In trademark law and consumer perception, it is well recognized that the first word of a multi-word mark is generally the element that consumers are most likely to notice and remember. In the case of "MERIDIAN FRESH," the word "MERIDIAN" is the lead element and the dominant, dist

34. The additional word "FRESH" in Brindoval's mark is a descriptive or, at most, suggestive term when used in connection with cleaning products, as it merely describes a quality or characteristic of the products (i.e., that they provide a fresh scent or a fresh, clean result). The word "FRESH" adds little, if any, distinctiveness to Brindoval's mark. The dominant and most memorable element of "MERIDIAN FRESH" is, an

35. The similarity between the marks is further heightened by the fact that the marks MERIDIAN, MERIDIAN CLEAN, and MERIDIAN FRESH share the identical dominant term "MERIDIAN" and are used on identical or closely overlapping product categories within International Class 3 — specifically, household cleaning preparations. A consumer encountering "MERIDIAN FRESH" cleaning products is highly likely to believe that those

36. The likelihood of confusion is substantially compounded by the confusing similarity of Brindoval's MERIDIAN FRESH product packaging to MCB's established MERIDIAN trade dress. Specifically, Brindoval's MERIDIAN FRESH packaging employs a teal-and-white color scheme that is strikingly similar to the teal-and-white color scheme that MCB has used consistently on its MERIDIAN cleaning products since 2011. The shade of

37. In addition to the similar color scheme, Brindoval's MERIDIAN FRESH packaging prominently features a stylized wave device that closely resembles the distinctive wave device in MCB's registered logo mark, U.S. Registration No. 5,589,320. The wave device on Brindoval's packaging occupies a similar position, employs a similar curvature and line weight, and creates a similar overall visual impression to MCB's registe

38. When MCB's MERIDIAN packaging and Brindoval's MERIDIAN FRESH packaging are placed side by side, the overall commercial impression created by Brindoval's packaging is confusingly similar to that of MCB's packaging. The combination of the dominant word "MERIDIAN," the teal-and-white color scheme, and the wave device on Brindoval's packaging creates an overall look and feel that is likely to cause consumers to belie

39. True and correct copies of side-by-side comparison photographs of MCB's MERIDIAN packaging and Brindoval's MERIDIAN FRESH packaging, arranged by product type (all-purpose cleaner, glass cleaner, and disinfecting products), are attached hereto as Exhibit C and incorporated herein by reference.

40. True and correct copies of close-up comparison photographs of MCB's registered wave device logo (as it appears in U.S. Registration No. 5,589,320 and on MCB's product packaging) and Brindoval's wave device as it appears on MERIDIAN FRESH packaging are attached hereto as Exhibit D and incorporated herein by reference.

VIII. EVIDENCE OF ACTUAL CONSUMER CONFUSION A. Consumer Complaints and Inquiries

41. Since the launch of Brindoval's MERIDIAN FRESH products in or around early July 2022, MCB's customer service department has received numerous communications from consumers that reflect actual confusion between the MERIDIAN and MERIDIAN FRESH brands. These communications have come through multiple channels, including MCB's toll-free customer service telephone line, MCB's customer service email address, and MCB's o

42. The specific instances of actual consumer confusion documented by MCB's customer service team include, but are not limited to, the following categories: (a) Affiliation Inquiries: Consumers have contacted MCB's customer service line and submitted emails asking whether "MERIDIAN FRESH" is a new product line from MCB, or whether MCB has entered into a partnership, joint venture, co-branding arrangement, or licensin

43. From July 2022 through October 2022 — a period of approximately four months — MCB's customer service team logged a total of approximately forty-seven (47) such inquiries, complaints, and social media interactions that were directly attributable to confusion between MCB's MERIDIAN brand and Brindoval's MERIDIAN FRESH brand. I have personally reviewed these customer service records. This figure represents only thos

44. True and correct copies of representative, redacted samples of customer service logs, emails, and social media messages reflecting actual consumer confusion between the MERIDIAN and MERIDIAN FRESH brands are attached hereto as Exhibit E and incorporated herein by reference. Personal identifying information of individual consumers has been redacted from these samples to protect consumer privacy. B. Internal Sales

45. In addition to the consumer-facing evidence of confusion described above, MCB's field sales representatives have independently reported instances of confusion among retail trade professionals. Specifically, MCB's sales representatives working in Midwestern and Mountain West territories have reported that retail buyers and store personnel at grocery and mass-market retailers have asked them whether MCB is now sell

IX. HARM TO MCB'S BRAND EQUITY AND GOODWILL A. Dilution and Erosion of Brand Identity

46. As described in detail above, MCB has invested over $47.2 million over a twelve-year period building the MERIDIAN brand into a recognized and trusted name in household cleaning products. The MERIDIAN brand's value lies not only in the revenue it generates directly, but also in the consumer goodwill, trust, and brand equity that it embodies — intangible assets that have been developed through years of consistent q

47. Brindoval's adoption and use of a confusingly similar mark ("MERIDIAN FRESH") and confusingly similar trade dress (teal-and-white color scheme, wave device) on directly competing household cleaning products threatens to erode the distinctiveness and strength of MCB's MERIDIAN marks. As more consumers encounter Brindoval's MERIDIAN FRESH products in the marketplace, the ability of MCB's MERIDIAN marks to serve as

48. Furthermore, consumers who encounter Brindoval's MERIDIAN FRESH products may form incorrect associations between MCB and Brindoval, including erroneous beliefs that MCB has expanded its distribution to Brindoval stores, that MCB has licensed the MERIDIAN brand to Brindoval, or that MCB and Brindoval are affiliated in some way. These false associations undermine MCB's ability to control the quality, reputation, an

49. MCB has no involvement in, and exercises no control over, the formulation, manufacture, quality control, or distribution of Brindoval's MERIDIAN FRESH products. MCB has not authorized Brindoval to use the MERIDIAN mark or any variant thereof, and MCB has no ability to ensure that Brindoval's products meet the quality standards that MCB applies to its own MERIDIAN products.

50. If consumers purchase Brindoval's MERIDIAN FRESH products in the mistaken belief that those products are manufactured by, sold by, or affiliated with MCB, any dissatisfaction with the quality, performance, or characteristics of those products will be attributed to MCB. Such misdirected negative impressions directly harm MCB's reputation and goodwill in the MERIDIAN brand, and MCB has no ability to prevent or reme

51. This type of harm — the loss of control over brand reputation and consumer perception — is ongoing and inherently difficult, if not impossible, to quantify in monetary terms. Each day that Brindoval continues to sell MERIDIAN FRESH products to consumers who may be confused as to the source or affiliation of those products, MCB's exposure to reputational harm grows. C. Loss of Sales and Market Share