Contract analysis

I. INTRODUCTION AND SUMMARY OF DISPUTE Meridian Consumer Brands LLC ("MCB" or the "Company") respectfully submits this Confidential Mediation Statement to the Honorable Harold K. Novotny (Ret.) in advance of the mediation session scheduled for February 15, 2023. This statement is intended to provide the Mediator with a comprehensive understanding of MCB's legal positions, the factual record developed to date, and MCB

II. MCB'S TRADEMARK PORTFOLIO AND THE STRENGTH OF ITS MARKS A threshold issue in any trademark dispute is the strength and scope of the senior user's rights. MCB's trademark rights in the MERIDIAN family of marks are substantial, well-documented, and — as discussed below — have been recognized by the Court in the context of MCB's successful motion for preliminary injunctive relief. This Section sets forth the relevan

1. U.S. Registration No. 4,218,506 — MERIDIAN (standard character mark). Registered August 14, 2012, in International Class 3, for cleaning preparations, including all-purpose cleaners, glass cleaners, and surface cleaning sprays. This registration has been maintained in full force and effect, all required maintenance filings under Sections 8 and 15 of the Lanham Act have been timely submitted, and the registration h

2. U.S. Registration No. 5,034,771 — MERIDIAN CLEAN (standard character mark). Registered October 18, 2016, in International Class 3, for cleaning preparations, including all-purpose cleaners, glass cleaners, disinfecting sprays, and floor cleaning solutions. This registration is valid and subsisting, and a Declaration of Continued Use under Section 8 has been filed. The registration is approaching incontestable stat

3. U.S. Registration No. 5,589,320 — MERIDIAN (stylized logo incorporating a distinctive wave device). Registered July 10, 2018, in International Class 3, for cleaning preparations. The stylized logo features the word "MERIDIAN" rendered in a proprietary typeface accompanied by a flowing wave device element that has become a signature visual identifier of MCB's cleaning product line. This registration is valid and su

III. BRINDOVAL'S INFRINGING CONDUCT A. Brindoval's Adoption and Use of MERIDIAN FRESH On or about May 12, 2022, Brindoval filed U.S. Trademark Application Serial No. 97/412,558 with the United States Patent and Trademark Office, seeking registration of the mark MERIDIAN FRESH (standard character format) in International Class 3 for cleaning products, including all-purpose sprays, glass cleaners, disinfecting wipes, a

IV. PROCEDURAL HISTORY AND CURRENT STATUS A. Pre-Litigation Demand Upon learning of Brindoval's adoption and use of the MERIDIAN FRESH mark, MCB acted promptly to protect its rights. On September 26, 2022, Calderwood & Harkness LLP, acting on behalf of MCB, transmitted a detailed cease-and-desist letter to Brindoval's General Counsel, Karen A. Whitfield, and to Brindoval's outside trademark counsel of record. The let

1. Trademark Infringement under 15 U.S.C. § 1114(1) — alleging that Brindoval's use of the MERIDIAN FRESH mark in connection with cleaning products is likely to cause confusion with MCB's federally registered MERIDIAN and MERIDIAN CLEAN marks;

2. False Designation of Origin under 15 U.S.C. § 1125(a) — alleging that Brindoval's use of the MERIDIAN FRESH mark and confusingly similar trade dress constitutes a false designation of origin likely to cause confusion, mistake, or deception as to the origin, sponsorship, or affiliation of Brindoval's products; and

3. Trademark Dilution under New York General Business Law § 360-l — alleging that Brindoval's use of the MERIDIAN FRESH mark dilutes the distinctive quality of MCB's famous MERIDIAN mark under New York state law. On November 18, 2022, MCB filed a Motion for Preliminary Injunction, seeking to enjoin Brindoval's continued use of the MERIDIAN FRESH mark and trade dress pending resolution of the action on the merits. The

V. CONSUMER CONFUSION EVIDENCE Consumer confusion is the central issue in any trademark infringement action. MCB has marshaled compelling evidence of both survey-based and anecdotal confusion, as summarized below. A. The Furman Survey MCB retained Dr. Elaine Furman, Ph.D., a recognized expert in marketing and consumer psychology, to design and conduct a consumer confusion survey in connection with this dispute. Dr. F

VI. LIKELIHOOD OF CONFUSION — POLAROID FACTOR ANALYSIS The Second Circuit employs the eight-factor test set forth in Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir. 1961), to evaluate likelihood of confusion in trademark infringement cases. Although the analysis is holistic and no single factor is dispositive, MCB submits that the overwhelming majority of the Polaroid factors weigh decisively in it

VII. DAMAGES AND FINANCIAL IMPACT A. MCB's Damages Theories MCB intends to pursue multiple theories of damages and equitable relief at trial. Each theory is briefly summarized below. Lost Profits. MCB has experienced a diversion of sales from its established MERIDIAN cleaning product line as a direct result of Brindoval's adoption and promotion of the confusingly similar MERIDIAN FRESH mark. Consumers who purchased M

VIII. MCB'S SETTLEMENT OBJECTIVES MCB enters this mediation with clearly defined settlement objectives that it believes represent a fair, commercially reasonable, and legally supportable resolution of this dispute. MCB's proposal is designed to achieve two overarching goals: (1) fair monetary compensation for the harm already inflicted by Brindoval's infringement, and (2) a comprehensive, enforceable coexistence fram

I. Dismissal and Withdrawal Upon execution of a definitive coexistence and settlement agreement, the parties would take the following steps to resolve the pending legal proceedings: (a) The parties would file a joint stipulation of dismissal with prejudice in the Southern District of New York action, Case No. 1:22-cv-09483, pursuant to Federal Rule of Civil Procedure 41(a)(1)(A)(ii). The stipulation would provide for

IX. WHY SETTLEMENT IS APPROPRIATE A. Strength of MCB's Position MCB approaches this mediation from a position of considerable legal strength. The foundation of MCB's case rests on marks that are strong, long-established, federally registered, and, in the case of U.S. Registration No. 4,218,506, incontestable. MCB has over a decade of continuous, exclusive use and nearly $95 million in annual branded sales supporting

X. CONCLUSION MCB respectfully requests that the Mediator consider the strength of MCB's legal positi