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PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION

CALDERWOOD & HARKNESS LLP 1251 Avenue of the Americas, 40th Floor New York, NY 10020

Telephone: (212) 554-7800 Facsimile: (212) 554-7801 www.calderwoodharkness.com

Alan Ngo Direct: (212) 554-7842 ango@calderwoodharkness.com

May 8, 2023

VIA EMAIL AND OVERNIGHT COURIER

Thomas R. Hennessy, Esq. General Counsel Meridian Consumer Brands LLC 450 Park Avenue South, 14th Floor New York, NY 10016

Re: Trademark Coexistence Agreement — Meridian Consumer Brands LLC and Brindoval Home Goods Inc. C&H Matter No. 1011-00003 S.D.N.Y. Case No. 1:22-cv-09483 (Albright, J.) TTAB Opposition No. 91/278,415

Dear Tom:

I. Purpose of This Letter

The purpose of this letter is to present for Meridian Consumer Brands LLC's ("MCB" or the "Company") review and approval the final negotiated terms of the Trademark Coexistence Agreement (the "Agreement" or "Coexistence Agreement") between MCB and Brindoval Home Goods Inc. ("Brindoval"). The terms summarized herein reflect the culmination of extensive arm's-length negotiations that commenced on March 6, 2023, following the court-ordered mediation session held on February 15, 2023, before retired Judge Harold K. Novotny of Novotny ADR Services LLC. Those negotiations concluded on or about April 28, 2023, at which point counsel for both parties confirmed that the Agreement is in substantially final form. A clean copy of the near-final draft, dated May 8, 2023, is enclosed with this letter for your review.

After careful consideration of the terms, the litigation posture, the costs incurred and projected going forward, and the prospective brand-protection value delivered by the Agreement, Calderwood & Harkness LLP ("C&H") recommends that MCB approve the final terms and authorize execution of the Coexistence Agreement. We respectfully request MCB's authorization to proceed to signing at the earliest practicable date, with a target execution date of approximately May 15, 2023.

This letter is organized as follows: Part II provides a brief procedural background; Part III summarizes the final agreement terms; Part IV describes the dismissal and TTAB withdrawal mechanics; Part V presents a financial summary and net recovery analysis; Part VI sets forth our recommendation; and Part VII contains our request for authorization.

II. Procedural Background

For context, we briefly recap the procedural trajectory of this matter.

On September 26, 2022, C&H transmitted a cease-and-desist letter on MCB's behalf to Brindoval, demanding that Brindoval discontinue all use of the mark MERIDIAN FRESH in connection with household cleaning products and withdraw its then-pending trademark application. Brindoval, through its counsel at Halverson McKay & Pruitt LLP (Gregory T. Halverson, lead partner), declined to cease use.

On October 14, 2022, C&H filed a Notice of Opposition at the Trademark Trial and Appeal Board ("TTAB"), Opposition No. 91/278,415, opposing Brindoval's pending trademark application, Serial No. 97/412,558, for the mark MERIDIAN FRESH in International Class 3 (household cleaning preparations). The opposition asserted that registration of Brindoval's mark would cause a likelihood of confusion with MCB's prior registered marks and would dilute the distinctive quality of the MERIDIAN family of marks.

On November 7, 2022, C&H filed a complaint in the United States District Court for the Southern District of New York, Case No. 1:22-cv-09483, before the Honorable Patricia M. Albright. The complaint asserted claims for federal trademark infringement under Section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1); false designation of origin and unfair competition under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); and trademark dilution and injury to business reputation under New York General Business Law § 360-l. The complaint sought injunctive relief, damages, and an accounting of profits.

On January 9, 2023, Judge Albright granted in part MCB's motion for a preliminary injunction (the "PI Order"). Specifically, the Court ordered Brindoval to modify its trade dress — removing the wave device and changing the teal-and-white color scheme that the Court found "sufficiently similar to [MCB's] registered stylized logo mark to create an unacceptable risk of consumer confusion at the point of sale" — within forty-five (45) days. However, the Court declined to enjoin Brindoval's use of the word mark "MERIDIAN FRESH" pending trial, finding that MCB had not demonstrated a likelihood of success on the merits with respect to the word mark alone sufficient to warrant the extraordinary remedy of a preliminary injunction at that stage. While the partial denial was a setback, the Court's language regarding the strength of MCB's marks and the survey evidence was notably favorable to MCB's position overall.

On February 15, 2023, the parties participated in a court-ordered mediation session conducted by Judge Novotny. That session resulted in a non-binding framework term sheet outlining the general parameters of a potential settlement, including a monetary payment range of $1.2 million to $1.5 million, mark modification, channel restrictions, and other terms.

From March 6, 2023, through April 28, 2023, C&H and Halverson McKay & Pruitt LLP engaged in extensive negotiations to reduce the framework term sheet to a definitive agreement. Those negotiations involved the exchange of multiple drafts, numerous conference calls, and resolution of several contested provisions, as described in greater detail below.

Throughout this matter, MCB's litigation position was considerably bolstered by two key factors. First, Dr. Elaine Furman of Lakeshore Brand Consulting LLC conducted a consumer confusion survey employing a Squirt/modified Eveready protocol. The survey, conducted among 612 respondents drawn from the relevant consumer population, yielded a net confusion rate of 31.4% — a figure well above the threshold courts in this Circuit have consistently found to support a likelihood-of-confusion finding. Second, MCB's robust trademark portfolio — consisting of U.S. Registration No. 4,218,506 (MERIDIAN, standard character mark, International Class 3), U.S. Registration No. 5,034,771 (MERIDIAN CLEAN, standard character mark, International Class 3), and U.S. Registration No. 5,589,320 (MERIDIAN, stylized logo with wave device, International Class 3) — provided a strong foundation for MCB's infringement claims and demonstrated the breadth and depth of MCB's prior rights.

III. Summary of Final Agreement Terms

Set forth below is a section-by-section summary of the material terms of the Coexistence Agreement as currently drafted. We have endeavored to identify the key business and legal implications of each provision. The enclosed near-final draft should be reviewed in its entirety, as this summary is provided for convenience and does not purport to capture every detail of the Agreement.

A. Settlement Payment (Agreement §2)

Brindoval has agreed to pay MCB a one-time lump-sum settlement payment of One Million Three Hundred Fifty Thousand Dollars ($1,350,000) (the "Settlement Payment").

The Settlement Payment is to be deposited into an escrow account at Dralvecen National Bank (Escrow Officer: Patricia Dolan; 60 East 42nd Street, New York, NY 10165) within ten (10) business days of execution of the Coexistence Agreement. The funds will be held in escrow and released to MCB upon entry of the Order of Dismissal with Prejudice by the Court in the S.D.N.Y. action, Case No. 1:22-cv-09483. This mechanism ensures that MCB receives the Settlement Payment only upon final disposition of the litigation, while also ensuring that the funds are committed and available immediately upon entry of the dismissal order.

The escrow mechanics will be governed by a separate Escrow Agreement to be entered into among MCB, Brindoval, and Dralvecen National Bank. That Escrow Agreement is to be executed concurrently with the Coexistence Agreement. C&H is currently preparing the Escrow Agreement, and we expect to have it in substantially final form within several business days.

We note that the $1,350,000 Settlement Payment falls within the $1.2 million to $1.5 million range identified in the mediation framework term sheet and, in our assessment, appropriately reflects MCB's negotiating leverage derived from the PI Order, the strength of the survey evidence, and the overall merits of MCB's claims. We believe this amount represents a fair and reasonable recovery under the circumstances.

B. Mark Modification (Agreement §3)

Under the Agreement, Brindoval is required to rebrand its products from "MERIDIAN FRESH" to "BRINDOVAL MERIDIAN FRESH." This is one of the most significant provisions of the Agreement from a brand-protection standpoint.

Specifically, Section 3.1(b) of the Agreement provides that the word "BRINDOVAL" must appear in no less than seventy-five percent (75%) of the type size of "MERIDIAN FRESH" as used on all product packaging, labeling, advertising, and promotional materials. This minimum type-size requirement is designed to ensure that "BRINDOVAL" functions as a prominent and visually conspicuous house mark, rather than appearing as a subordinate descriptor that consumers might overlook. By requiring the Brindoval house mark to appear at near-parity with the MERIDIAN FRESH element, the modified mark is far less likely to cause consumer confusion with MCB's MERIDIAN and MERIDIAN CLEAN marks.

Brindoval must complete the rebranding across all affected products, packaging, point-of-sale materials, and digital assets within one hundred twenty (120) days of execution of the Agreement. Based on the anticipated execution date of May 15, 2023, the rebranding deadline would fall on approximately September 12, 2023. The Agreement provides that any products bearing the old "MERIDIAN FRESH" mark (without the "BRINDOVAL" prefix) remaining in Brindoval's inventory as of the rebranding deadline must be withdrawn from sale and destroyed or re-labeled, at Brindoval's expense.

C. Channel Restrictions (Agreement §4)

The Agreement imposes strict geographic and channel-of-trade restrictions on Brindoval's use of the modified mark "BRINDOVAL MERIDIAN FRESH." Brindoval may use the modified mark only in the following channels:

(a) Brindoval-Branded Retail Stores. Brindoval may sell products bearing the modified mark through its own Brindoval-branded retail store locations. As of the date of this letter, Brindoval operates approximately 148 retail locations across twelve (12) Midwestern and Mountain West states (including Illinois, Indiana, Iowa, Michigan, Minnesota, Montana, Nebraska, Ohio, South Dakota, Utah, Wisconsin, and Wyoming).

(b) Brindoval's Own E-Commerce Platform. Brindoval may sell products bearing the modified mark through its proprietary e-commerce website, currently located at www.crestviewhomegoods.com.

Critically, the Agreement expressly prohibits Brindoval from using the modified mark on any third-party retail platform (including, without limitation, Penmark Holdings, Walmart.com, Adriatic Corporation, or any similar marketplace platform) or in wholesale distribution to any third-party retailer for resale in such retailer's stores or online channels. This prohibition extends to any successor, affiliate, or licensee of Brindoval.

The practical effect of this restriction is to confine Brindoval's use of the modified mark to channels in which the Brindoval house brand is already prominently featured and recognized by consumers, thereby minimizing the risk of overlap with MCB's nationwide distribution network. As you know, MCB distributes its MERIDIAN and MERIDIAN CLEAN product lines through major grocery chains, club retailers (including Harborview Enterprises and Westmark Industries), mass merchandisers, and leading e-commerce platforms — channels from which Brindoval will now be entirely excluded with respect to any MERIDIAN-incorporating mark.

D. Product-Category Restrictions (Agreement §5)

The Agreement restricts Brindoval's use of the modified mark to household cleaning products within International Class 3. This limitation is coextensive with the goods identified in Brindoval's pending trademark application.

Moreover, the Agreement expressly prohibits Brindoval from expanding the use of any mark incorporating the word "MERIDIAN" — whether "BRINDOVAL MERIDIAN FRESH" or any other formulation — into the following product categories:

• Personal care products (including but not limited to soaps, shampoos, body washes, and skin care products);

• Home fragrance products (including but not limited to candles, reed diffusers, room sprays, and scented sachets); and

• Laundry detergent and fabric care products.

This product-category restriction is of substantial importance to MCB's strategic interests. MCB currently markets its MERIDIAN-branded products across a broad consumer products portfolio, and MCB's management has indicated that potential line extensions into adjacent categories — particularly home fragrance and personal care — remain under active consideration. By precluding Brindoval from expanding into these categories, the Agreement preserves MCB's freedom of action and eliminates the risk of a future conflict with Brindoval in any of these high-value market segments.

E. Trade-Dress Requirements (Agreement §6)

Consistent with the Court's PI Order, the Agreement requires Brindoval to permanently discontinue the teal-and-white color scheme and the wave device that Judge Albright found to be "sufficiently similar" to MCB's registered stylized logo mark (U.S. Reg. No. 5,589,320) to warrant injunctive relief. The Agreement makes this discontinuation a permanent, contractual obligation — not merely a compliance measure under the PI Order, which could theoretically be dissolved or modified in subsequent proceedings.

Additionally, the Agreement provides that Brindoval must submit its replacement trade dress to MCB for review (but not approval) at least thirty (30) days before any commercial use of the new trade dress. MCB's review right is expressly limited to the right to raise objections regarding potential trade-dress confusion. It does not constitute an approval right or a veto right, and MCB cannot unilaterally block Brindoval's use of the replacement trade dress. However, the review mechanism preserves MCB's ability to identify potential trade-dress confusion issues proactively and, if necessary, to initiate a dispute resolution process under the Agreement before any consumer harm occurs.

We wish to note that this provision represents a negotiated compromise between the parties. MCB originally sought a full approval right over Brindoval's replacement trade dress — a position we advocated vigorously on MCB's behalf. Brindoval, for its part, initially insisted on no review obligation whatsoever, arguing that any review or approval mechanism would effectively give MCB an anticompetitive veto over Brindoval's packaging decisions. The review-only formulation in the final Agreement represents a reasonable middle ground that provides MCB with meaningful advance notice and the ability to act promptly if confusion concerns arise, while respecting Brindoval's interest in maintaining independent control over its branding and packaging decisions.

F. Quality Monitoring (Agreement §7)

The Agreement includes quality-monitoring provisions that serve a dual purpose. First, Brindoval is required to provide MCB with representative product samples on an annual basis. Second, MCB is permitted to conduct one (1) quality inspection per calendar year at Brindoval's manufacturing and/or distribution facilities, upon reasonable advance notice.

These provisions are important not only for maintaining the integrity of MCB's brand association in the minds of consumers who encounter the MERIDIAN-incorporating mark on Brindoval's products, but also for safeguarding MCB's ongoing trademark rights. Under well-established trademark law principles, a trademark owner who licenses or permits use of its mark (or a confusingly similar mark) may jeopardize its rights if it fails to exercise adequate quality control. While the Coexistence Agreement is not a license, the quality-monitoring provisions provide a contractual basis for MCB to ensure that products sold under a mark incorporating "MERIDIAN" meet acceptable quality standards, thereby further insulating MCB's trademark rights from any argument that the coexistence arrangement has resulted in a loss of quality control.

G. Non-Challenge Covenant (Agreement §8)

Under Section 8 of the Agreement, Brindoval covenants not to challenge, whether directly or indirectly, the validity, enforceability, or ownership of MCB's three core trademark registrations:

• U.S. Reg. No. 4,218,506 — MERIDIAN (standard character mark, International Class 3), registered August 14, 2012;

• U.S. Reg. No. 5,034,771 — MERIDIAN CLEAN (standard character mark, International Class 3), registered October 18, 2016; and

• U.S. Reg. No. 5,589,320 — MERIDIAN (stylized logo with wave device, International Class 3), registered July 10, 2018.

This non-challenge covenant extends to any challenge brought before the TTAB (including cancellation proceedings), any federal or state court proceeding, and any administrative proceeding before any governmental authority. The covenant is binding on Brindoval and its successors, assigns, affiliates, and any entity that acquires all or substantially all of Brindoval's assets or the right to use the modified mark.

The practical significance of this provision cannot be overstated. It eliminates the risk that Brindoval — which, through the course of this litigation, amassed evidence and arguments regarding the alleged descriptiveness or weakness of the MERIDIAN mark — could bring future cancellation proceedings against MCB's registrations or raise invalidity defenses in any subsequent dispute. Given the substantial investment MCB has made in building and protecting its MERIDIAN brand portfolio, this covenant provides a meaningful layer of long-term security.

H. Amendment to Brindoval's Pending Trademark Application (Agreement §10)

The Agreement requires Brindoval to file an amendment to its pending trademark application, Serial No. 97/412,558, within fifteen (15) business days of execution of the Agreement. The amendment must accomplish two things:

(a) The mark as depicted in the application must be changed from "MERIDIAN FRESH" to the modified mark "BRINDOVAL MERIDIAN FRESH," consistent with the rebranding requirements described in Section B above.

(b) The description of goods must be amended to limit the identified goods to "household cleaning preparations sold exclusively through applicant's own branded retail stores and applicant's own e-commerce platform," thereby incorporating the channel restrictions described in Section C above directly into the application's identification of goods.

Upon Brindoval's filing of the amendment with the United States Patent and Trademark Office, MCB will withdraw its Notice of Opposition (TTAB Opposition No. 91/278,415) with Brindoval's express consent. The withdrawal-with-consent mechanism will permit the amended application to proceed to registration without the cloud of the pending opposition.

I. Liquidated Damages (Agreement §9)

To ensure compliance with the channel restrictions and product-category restrictions set forth in the Agreement, Section 9.2 provides for liquidated damages of Five Hundred Thousand Dollars ($500,000) per occurrence of a breach of the channel restrictions (Agreement §4) or the product-category restrictions (Agreement §5), in addition to any actual damages MCB may prove.

The liquidated-damages provision is structured to provide a meaningful financial deterrent against any unauthorized expansion by Brindoval beyond the permitted scope of use. The parties have acknowledged in the Agreement that actual damages from a breach of the channel or product-category restrictions would be difficult to calculate with precision and that the $500,000 per-occurrence figure represents a reasonable estimate of the harm MCB would suffer from such a breach.

We note that the $500,000 liquidated-damages figure was one of the most contested provisions during the negotiations. Brindoval's counsel initially proposed a liquidated-damages amount of $150,000 per occurrence, arguing that a higher figure would constitute an unenforceable penalty. MCB's position — which we advocated on the basis of the substantial value of the MERIDIAN brand, MCB's approximately $94.5 million in annual MERIDIAN cleaning-line revenue, and applicable Second Circuit precedent regarding the enforceability of liquidated-damages clauses in commercial agreements — ultimately prevailed. We are confident that the $500,000 figure would withstand judicial scrutiny if challenged.

J. Governing Law and Term (Agreement §§11, 12)

The Agreement is governed by the laws of the State of New York, without regard to conflict-of-laws principles. This is consistent with the parties' existing relationship to New York (MCB is headquartered in New York, the litigation was filed in the Southern District of New York, and the parties negotiated the Agreement in New York) and provides the benefit of well-developed commercial and trademark law under New York jurisprudence.

The term of the Agreement is perpetual, unless terminated by mutual written consent of the parties or upon a material breach by either party that remains uncured following the notice and cure procedures set forth in Section 12.3 of the Agreement. The perpetual term ensures lasting, durable protection for MCB's MERIDIAN marks and eliminates the risk that the protections secured through this settlement could lapse after a fixed period.

IV. Dismissal and TTAB Withdrawal Mechanics

Upon execution of both the Coexistence Agreement and the Escrow Agreement, C&H will promptly prepare and coordinate the filing of the following documents:

1. Joint Stipulation of Dismissal with Prejudice. C&H will prepare a Joint Stipulation of Dismissal with Prejudice for filing in the S.D.N.Y. action, Case No. 1:22-cv-09483. The stipulation will be signed by the undersigned, Alan Ngo, on behalf of MCB, and by Gregory T. Halverson of Halverson McKay & Pruitt LLP on behalf of Brindoval. The stipulation will provide that each party shall bear its own costs and attorneys' fees, except as otherwise set forth in the Coexistence Agreement (i.e., the $1,350,000 Settlement Payment).

2. Proposed Order of Dismissal with Prejudice. C&H will submit a Proposed Order of Dismissal with Prejudice for Judge Albright's signature, in the form customarily accepted by her chambers. We have reviewed the individual practices for Judge Albright's chambers and are prepared to submit the proposed order in the required format.

3. Withdrawal of Notice of Opposition with Consent. Upon Brindoval's filing of its amended trademark application as described in Section III(H) above, C&H will file a Withdrawal of Notice of Opposition with Consent at the TTAB (Opposition No. 91/278,415), thereby terminating the opposition proceeding and permitting Brindoval's amended application to proceed.

The Court's entry of the Order of Dismissal with Prejudice will trigger the release of the escrowed Settlement Payment to MCB, in accordance with the terms of the Escrow Agreement.

Our anticipated timeline for these steps is as follows: execution of the Coexistence Agreement and Escrow Agreement by approximately May 15, 2023; filing of the Joint Stipulation and Proposed Order of Dismissal shortly thereafter; and entry of the Court's dismissal order within approximately one to two weeks of filing. Based on Judge Albright's typical handling of stipulated dismissals, we anticipate that the order will be entered on or before June 2, 2023, and the Settlement Payment released to MCB promptly upon entry.

V. Financial Summary and Net Recovery Analysis

The following table summarizes the financial terms of the settlement and the total costs incurred by MCB in connection with this matter.

Settlement Payment to MCB: $1,350,000

Total Matter Costs Incurred by MCB (Estimated Through Conclusion of Matter):

Net Monetary Recovery:

$1,350,000 (Settlement Payment) − $721,590 (Total Matter Costs) = $628,410

Importantly, the value of this settlement extends far beyond the $628,410 net monetary recovery. The Coexistence Agreement delivers significant prospective brand-protection value through the suite of restrictive covenants and monitoring rights described in Part III above. Specifically:

• The channel restrictions confine Brindoval to its own retail and e-commerce channels, entirely eliminating overlap with MCB's nationwide distribution network.

• The product-category restrictions preserve MCB's freedom to expand the MERIDIAN brand into adjacent categories without the risk of a competitive conflict with Brindoval.

• The permanent trade-dress changes remove the packaging elements that the Court found to pose the greatest risk of point-of-sale confusion.

• The non-challenge covenant insulates MCB's three core registrations from future attack by Brindoval.

• The quality-monitoring rights provide MCB with ongoing visibility into the products sold under the modified mark and protect MCB's trademark rights.

• The liquidated-damages provisions create a meaningful financial deterrent against any unauthorized expansion by Brindoval.

These protections are of substantial importance in the context of MCB's broader business. As you know, MCB's MERIDIAN cleaning product line generated approximately $94.5 million in revenue in FY 2022, representing a significant portion of MCB's total FY 2022 revenue of approximately $387 million. MCB has invested a cumulative $47.2 million in advertising expenditures from 2011 through 2022 in building the MERIDIAN brand. The Coexistence Agreement safeguards that investment by ensuring that any future use by Brindoval of a MERIDIAN-incorporating mark occurs only under tightly controlled conditions that minimize the risk of consumer confusion and brand dilution.

VI. Recommendation

Based on our thorough analysis of the Agreement's terms, the litigation posture, the costs and risks of continued litigation, and the substantial prospective brand-protection value of the settlement, Calderwood & Harkness recommends that MCB approve the final terms and authorize execution of the Coexistence Agreement.

The Agreement achieves MCB's principal objectives in this matter:

1. Monetary Compensation. The $1,350,000 Settlement Payment provides meaningful compensation for Brindoval's infringement and yields a positive net recovery of $628,410 after accounting for all matter costs.

2. Effective Containment. The mark modification, channel restrictions, and product-category restrictions collectively confine Brindoval's use of any MERIDIAN-incorporating mark to a narrow, carefully circumscribed scope — limited to household cleaning products, sold only through Brindoval's own retail stores and e-commerce platform, under a mark that prominently features the Brindoval house name.

3. Elimination of Confusing Trade Dress. The permanent discontinuation of the teal-and-white color scheme and wave device eliminates the packaging elements that posed the greatest risk of consumer confusion at the point of sale.

4. Protection of Core Registrations. The non-challenge covenant eliminates the risk of future challenges to MCB's three foundational trademark registrations.

5. Enforceable Compliance Mechanisms. The liquidated-damages provision and quality-monitoring rights provide MCB with robust tools to ensure Brindoval's ongoing compliance with the terms of the Agreement.

We also wish to note the risks associated with continued litigation. While MCB's overall position is strong, the Court's decision at the PI stage not to enjoin Brindoval's use of the word mark "MERIDIAN FRESH" pending trial introduced a measure of uncertainty as to the ultimate outcome. A trial on the merits would entail significant additional costs — we estimate that proceeding through trial preparation, a trial of approximately five to seven days, and potential post-trial motions would cost MCB an additional $850,000 to $1,200,000 in legal fees and expert costs alone — with no guarantee of a more favorable result. Moreover, a trial outcome would not provide the channel restrictions, product-category restrictions, or non-challenge covenant that the Coexistence Agreement delivers; even a favorable injunction following trial would likely be narrower in scope and would not preclude Brindoval from seeking to expand into adjacent product categories or from challenging MCB's registrations in a future proceeding.

In our assessment, the settlement compares favorably to the projected cost and risk profile of proceeding through trial and delivers a more comprehensive, durable, and enforceable set of protections for the MERIDIAN brand.

VII. Request for Authorization

We respectfully request that you confirm MCB's authorization to finalize and execute the Coexistence Agreement on the terms summarized herein. Specifically, we request the following:

1. Confirmation of authorization for C&H to proceed with execution of the Coexistence Agreement and the concurrent Escrow Agreement.

2. Designation of MCB's signatory. We suggest that you, Thomas R. Hennessy, in your capacity as General Counsel of MCB, serve as the signatory on behalf of MCB. Please confirm whether this is acceptable or advise if an alternative signatory is preferred.

3. Internal consultation. We recommend that Sandra Kwan (Chief Executive Officer) and Rachel Dominguez (Vice President, Brand Management) be consulted as appropriate in connection with this authorization. Additionally, given the brand-protection implications of this matter for the broader portfolio investment, you may wish to inform Waypoint Capital Partners LLC (James Alderton, Managing Partner) of the settlement terms and the prospective brand-protection value they deliver.

Upon receipt of MCB's authorization, C&H will coordinate the execution process with Halverson McKay & Pruitt LLP and Dralvecen National Bank to ensure that both the Coexistence Agreement and the Escrow Agreement are executed simultaneously and that the escrow deposit is funded within the agreed-upon timeframe.

We are available to arrange a telephone call or in-person meeting at your convenience to discuss any questions you or the MCB team may have regarding the terms of the Agreement or the matters addressed in this letter. Please do not hesitate to reach out to the undersigned directly at (212) 554-7842 or via email at ango@calderwoodharkness.com.

Closing

We wish to express our sincere appreciation for the confidence that MCB has placed in Calderwood & Harkness throughout the course of this matter. It has been a privilege to represent the Company in this important brand-protection effort, and we are pleased that the outcome delivers both meaningful monetary recovery and durable long-term protections for the MERIDIAN brand portfolio.

We look forward to hearing from you at your earliest convenience and stand ready to proceed promptly upon receipt of your authorization.

Very truly yours,

CALDERWOOD & HARKNESS LLP

By: ________

Alan Ngo Partner, intellectual Property 1251 Avenue of the Americas, 40th Floor New York, NY 10020 Direct: (212) 554-7842 ango@calderwoodharkness.com

cc: Marcus Delgado, Billing Partner, Calderwood & Harkness LLP cc: Rachel Dominguez, Vice President, Brand Management, Meridian Consumer Brands LLC

Enclosure: Near-final draft of Trademark Coexistence Agreement (clean copy), dated May 8, 2023

Cost Category	Detail	Amount
Calderwood & Harkness Attorney Fees	$618,750
Alan Ngo (Partner): 142 hours × $1,050/hr	$149,100
Marcus Delgado (Partner): 58 hours × $1,050/hr	$60,900
Christy Bauer (Senior Associate): 310 hours × $725/hr	$224,750
Peter Vassiliev (Associate): 320 hours × $575/hr	$184,000
Expert Fees	Lakeshore Brand Consulting LLC (Dr. Elaine Furman)	$87,500
Mediation Fees	MCB's share of Novotny ADR Services LLC (total mediation fee of $25,000, split equally)	$12,500
Filing Fees and Service Costs	Court filing fees, TTAB filing fees, process server fees	$2,840
Total Matter Cost	$721,590

PRIVILEGED AND CONFIDENTIAL ATTORNEY-CLIENT COMMUNICATION
CALDERWOOD & HARKNESS LLP 1251 Avenue of the Americas, 40th Floor New York, NY 10020
Telephone: (212) 554-7800 Facsimile: (212) 554-7801 www.calderwoodharkness.com
Alan Ngo Direct: (212) 554-7842 ango@calderwoodharkness.com
May 8, 2023
VIA EMAIL AND OVERNIGHT COURIER
Thomas R. Hennessy, Esq. General Counsel Meridian Consumer Brands LLC 450 Park Avenue South, 14th Floor New York, NY 10016
Re: Trademark Coexistence Agreement — Meridian Consumer Brands LLC and Brindoval Home Goods Inc. C&H Matter No. 1011-00003 S.D.N.Y. Case No. 1:22-cv-09483 (Albright, J.) TTAB Opposition No. 91/278,415
Dear Tom:
I. Purpose of This Letter
The purpose of this letter is to present for Meridian Consumer Brands LLC's ("MCB" or the "Company") review and approval the final negotiated terms of the Trademark Coexistence Agreement (the "Agreement" or "Coexistence Agreement") between MCB and Brindoval Home Goods Inc. ("Brindoval"). The terms summarized herein reflect the culmination of extensive arm's-length negotiations that commenced on March 6, 2023, following the court-ordered mediation session held on February 15, 2023, before retired Judge Harold K. Novotny of Novotny ADR Services LLC. Those negotiations concluded on or about April 28, 2023, at which point counsel for both parties confirmed that the Agreement is in substantially final form. A clean copy of the near-final draft, dated May 8, 2023, is enclosed with this letter for your review.
After careful consideration of the terms, the litigation posture, the costs incurred and projected going forward, and the prospective brand-protection value delivered by the Agreement, Calderwood & Harkness LLP ("C&H") recommends that MCB approve the final terms and authorize execution of the Coexistence Agreement. We respectfully request MCB's authorization to proceed to signing at the earliest practicable date, with a target execution date of approximately May 15, 2023.
This letter is organized as follows: Part II provides a brief procedural background; Part III summarizes the final agreement terms; Part IV describes the dismissal and TTAB withdrawal mechanics; Part V presents a financial summary and net recovery analysis; Part VI sets forth our recommendation; and Part VII contains our request for authorization.
II. Procedural Background
For context, we briefly recap the procedural trajectory of this matter.
On September 26, 2022, C&H transmitted a cease-and-desist letter on MCB's behalf to Brindoval, demanding that Brindoval discontinue all use of the mark MERIDIAN FRESH in connection with household cleaning products and withdraw its then-pending trademark application. Brindoval, through its counsel at Halverson McKay & Pruitt LLP (Gregory T. Halverson, lead partner), declined to cease use.
On October 14, 2022, C&H filed a Notice of Opposition at the Trademark Trial and Appeal Board ("TTAB"), Opposition No. 91/278,415, opposing Brindoval's pending trademark application, Serial No. 97/412,558, for the mark MERIDIAN FRESH in International Class 3 (household cleaning preparations). The opposition asserted that registration of Brindoval's mark would cause a likelihood of confusion with MCB's prior registered marks and would dilute the distinctive quality of the MERIDIAN family of marks.
On November 7, 2022, C&H filed a complaint in the United States District Court for the Southern District of New York, Case No. 1:22-cv-09483, before the Honorable Patricia M. Albright. The complaint asserted claims for federal trademark infringement under Section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1); false designation of origin and unfair competition under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a); and trademark dilution and injury to business reputation under New York General Business Law § 360-l. The complaint sought injunctive relief, damages, and an accounting of profits.
On January 9, 2023, Judge Albright granted in part MCB's motion for a preliminary injunction (the "PI Order"). Specifically, the Court ordered Brindoval to modify its trade dress — removing the wave device and changing the teal-and-white color scheme that the Court found "sufficiently similar to [MCB's] registered stylized logo mark to create an unacceptable risk of consumer confusion at the point of sale" — within forty-five (45) days. However, the Court declined to enjoin Brindoval's use of the word mark "MERIDIAN FRESH" pending trial, finding that MCB had not demonstrated a likelihood of success on the merits with respect to the word mark alone sufficient to warrant the extraordinary remedy of a preliminary injunction at that stage. While the partial denial was a setback, the Court's language regarding the strength of MCB's marks and the survey evidence was notably favorable to MCB's position overall.
On February 15, 2023, the parties participated in a court-ordered mediation session conducted by Judge Novotny. That session resulted in a non-binding framework term sheet outlining the general parameters of a potential settlement, including a monetary payment range of $1.2 million to $1.5 million, mark modification, channel restrictions, and other terms.
From March 6, 2023, through April 28, 2023, C&H and Halverson McKay & Pruitt LLP engaged in extensive negotiations to reduce the framework term sheet to a definitive agreement. Those negotiations involved the exchange of multiple drafts, numerous conference calls, and resolution of several contested provisions, as described in greater detail below.
Throughout this matter, MCB's litigation position was considerably bolstered by two key factors. First, Dr. Elaine Furman of Lakeshore Brand Consulting LLC conducted a consumer confusion survey employing a Squirt/modified Eveready protocol. The survey, conducted among 612 respondents drawn from the relevant consumer population, yielded a net confusion rate of 31.4% — a figure well above the threshold courts in this Circuit have consistently found to support a likelihood-of-confusion finding. Second, MCB's robust trademark portfolio — consisting of U.S. Registration No. 4,218,506 (MERIDIAN, standard character mark, International Class 3), U.S. Registration No. 5,034,771 (MERIDIAN CLEAN, standard character mark, International Class 3), and U.S. Registration No. 5,589,320 (MERIDIAN, stylized logo with wave device, International Class 3) — provided a strong foundation for MCB's infringement claims and demonstrated the breadth and depth of MCB's prior rights.
III. Summary of Final Agreement Terms
Set forth below is a section-by-section summary of the material terms of the Coexistence Agreement as currently drafted. We have endeavored to identify the key business and legal implications of each provision. The enclosed near-final draft should be reviewed in its entirety, as this summary is provided for convenience and does not purport to capture every detail of the Agreement.
A. Settlement Payment (Agreement §2)
Brindoval has agreed to pay MCB a one-time lump-sum settlement payment of One Million Three Hundred Fifty Thousand Dollars ($1,350,000) (the "Settlement Payment").
The Settlement Payment is to be deposited into an escrow account at Dralvecen National Bank (Escrow Officer: Patricia Dolan; 60 East 42nd Street, New York, NY 10165) within ten (10) business days of execution of the Coexistence Agreement. The funds will be held in escrow and released to MCB upon entry of the Order of Dismissal with Prejudice by the Court in the S.D.N.Y. action, Case No. 1:22-cv-09483. This mechanism ensures that MCB receives the Settlement Payment only upon final disposition of the litigation, while also ensuring that the funds are committed and available immediately upon entry of the dismissal order.
The escrow mechanics will be governed by a separate Escrow Agreement to be entered into among MCB, Brindoval, and Dralvecen National Bank. That Escrow Agreement is to be executed concurrently with the Coexistence Agreement. C&H is currently preparing the Escrow Agreement, and we expect to have it in substantially final form within several business days.
We note that the $1,350,000 Settlement Payment falls within the $1.2 million to $1.5 million range identified in the mediation framework term sheet and, in our assessment, appropriately reflects MCB's negotiating leverage derived from the PI Order, the strength of the survey evidence, and the overall merits of MCB's claims. We believe this amount represents a fair and reasonable recovery under the circumstances.
B. Mark Modification (Agreement §3)
Under the Agreement, Brindoval is required to rebrand its products from "MERIDIAN FRESH" to "BRINDOVAL MERIDIAN FRESH." This is one of the most significant provisions of the Agreement from a brand-protection standpoint.
Specifically, Section 3.1(b) of the Agreement provides that the word "BRINDOVAL" must appear in no less than seventy-five percent (75%) of the type size of "MERIDIAN FRESH" as used on all product packaging, labeling, advertising, and promotional materials. This minimum type-size requirement is designed to ensure that "BRINDOVAL" functions as a prominent and visually conspicuous house mark, rather than appearing as a subordinate descriptor that consumers might overlook. By requiring the Brindoval house mark to appear at near-parity with the MERIDIAN FRESH element, the modified mark is far less likely to cause consumer confusion with MCB's MERIDIAN and MERIDIAN CLEAN marks.
Brindoval must complete the rebranding across all affected products, packaging, point-of-sale materials, and digital assets within one hundred twenty (120) days of execution of the Agreement. Based on the anticipated execution date of May 15, 2023, the rebranding deadline would fall on approximately September 12, 2023. The Agreement provides that any products bearing the old "MERIDIAN FRESH" mark (without the "BRINDOVAL" prefix) remaining in Brindoval's inventory as of the rebranding deadline must be withdrawn from sale and destroyed or re-labeled, at Brindoval's expense.
C. Channel Restrictions (Agreement §4)
The Agreement imposes strict geographic and channel-of-trade restrictions on Brindoval's use of the modified mark "BRINDOVAL MERIDIAN FRESH." Brindoval may use the modified mark only in the following channels:
(a) Brindoval-Branded Retail Stores. Brindoval may sell products bearing the modified mark through its own Brindoval-branded retail store locations. As of the date of this letter, Brindoval operates approximately 148 retail locations across twelve (12) Midwestern and Mountain West states (including Illinois, Indiana, Iowa, Michigan, Minnesota, Montana, Nebraska, Ohio, South Dakota, Utah, Wisconsin, and Wyoming).
(b) Brindoval's Own E-Commerce Platform. Brindoval may sell products bearing the modified mark through its proprietary e-commerce website, currently located at www.crestviewhomegoods.com.
Critically, the Agreement expressly prohibits Brindoval from using the modified mark on any third-party retail platform (including, without limitation, Penmark Holdings, Walmart.com, Adriatic Corporation, or any similar marketplace platform) or in wholesale distribution to any third-party retailer for resale in such retailer's stores or online channels. This prohibition extends to any successor, affiliate, or licensee of Brindoval.
The practical effect of this restriction is to confine Brindoval's use of the modified mark to channels in which the Brindoval house brand is already prominently featured and recognized by consumers, thereby minimizing the risk of overlap with MCB's nationwide distribution network. As you know, MCB distributes its MERIDIAN and MERIDIAN CLEAN product lines through major grocery chains, club retailers (including Harborview Enterprises and Westmark Industries), mass merchandisers, and leading e-commerce platforms — channels from which Brindoval will now be entirely excluded with respect to any MERIDIAN-incorporating mark.
D. Product-Category Restrictions (Agreement §5)
The Agreement restricts Brindoval's use of the modified mark to household cleaning products within International Class 3. This limitation is coextensive with the goods identified in Brindoval's pending trademark application.
Moreover, the Agreement expressly prohibits Brindoval from expanding the use of any mark incorporating the word "MERIDIAN" — whether "BRINDOVAL MERIDIAN FRESH" or any other formulation — into the following product categories:
• Personal care products (including but not limited to soaps, shampoos, body washes, and skin care products);
• Home fragrance products (including but not limited to candles, reed diffusers, room sprays, and scented sachets); and
• Laundry detergent and fabric care products.
This product-category restriction is of substantial importance to MCB's strategic interests. MCB currently markets its MERIDIAN-branded products across a broad consumer products portfolio, and MCB's management has indicated that potential line extensions into adjacent categories — particularly home fragrance and personal care — remain under active consideration. By precluding Brindoval from expanding into these categories, the Agreement preserves MCB's freedom of action and eliminates the risk of a future conflict with Brindoval in any of these high-value market segments.
E. Trade-Dress Requirements (Agreement §6)
Consistent with the Court's PI Order, the Agreement requires Brindoval to permanently discontinue the teal-and-white color scheme and the wave device that Judge Albright found to be "sufficiently similar" to MCB's registered stylized logo mark (U.S. Reg. No. 5,589,320) to warrant injunctive relief. The Agreement makes this discontinuation a permanent, contractual obligation — not merely a compliance measure under the PI Order, which could theoretically be dissolved or modified in subsequent proceedings.
Additionally, the Agreement provides that Brindoval must submit its replacement trade dress to MCB for review (but not approval) at least thirty (30) days before any commercial use of the new trade dress. MCB's review right is expressly limited to the right to raise objections regarding potential trade-dress confusion. It does not constitute an approval right or a veto right, and MCB cannot unilaterally block Brindoval's use of the replacement trade dress. However, the review mechanism preserves MCB's ability to identify potential trade-dress confusion issues proactively and, if necessary, to initiate a dispute resolution process under the Agreement before any consumer harm occurs.
We wish to note that this provision represents a negotiated compromise between the parties. MCB originally sought a full approval right over Brindoval's replacement trade dress — a position we advocated vigorously on MCB's behalf. Brindoval, for its part, initially insisted on no review obligation whatsoever, arguing that any review or approval mechanism would effectively give MCB an anticompetitive veto over Brindoval's packaging decisions. The review-only formulation in the final Agreement represents a reasonable middle ground that provides MCB with meaningful advance notice and the ability to act promptly if confusion concerns arise, while respecting Brindoval's interest in maintaining independent control over its branding and packaging decisions.
F. Quality Monitoring (Agreement §7)
The Agreement includes quality-monitoring provisions that serve a dual purpose. First, Brindoval is required to provide MCB with representative product samples on an annual basis. Second, MCB is permitted to conduct one (1) quality inspection per calendar year at Brindoval's manufacturing and/or distribution facilities, upon reasonable advance notice.
These provisions are important not only for maintaining the integrity of MCB's brand association in the minds of consumers who encounter the MERIDIAN-incorporating mark on Brindoval's products, but also for safeguarding MCB's ongoing trademark rights. Under well-established trademark law principles, a trademark owner who licenses or permits use of its mark (or a confusingly similar mark) may jeopardize its rights if it fails to exercise adequate quality control. While the Coexistence Agreement is not a license, the quality-monitoring provisions provide a contractual basis for MCB to ensure that products sold under a mark incorporating "MERIDIAN" meet acceptable quality standards, thereby further insulating MCB's trademark rights from any argument that the coexistence arrangement has resulted in a loss of quality control.
G. Non-Challenge Covenant (Agreement §8)
Under Section 8 of the Agreement, Brindoval covenants not to challenge, whether directly or indirectly, the validity, enforceability, or ownership of MCB's three core trademark registrations:
• U.S. Reg. No. 4,218,506 — MERIDIAN (standard character mark, International Class 3), registered August 14, 2012;
• U.S. Reg. No. 5,034,771 — MERIDIAN CLEAN (standard character mark, International Class 3), registered October 18, 2016; and
• U.S. Reg. No. 5,589,320 — MERIDIAN (stylized logo with wave device, International Class 3), registered July 10, 2018.
This non-challenge covenant extends to any challenge brought before the TTAB (including cancellation proceedings), any federal or state court proceeding, and any administrative proceeding before any governmental authority. The covenant is binding on Brindoval and its successors, assigns, affiliates, and any entity that acquires all or substantially all of Brindoval's assets or the right to use the modified mark.
The practical significance of this provision cannot be overstated. It eliminates the risk that Brindoval — which, through the course of this litigation, amassed evidence and arguments regarding the alleged descriptiveness or weakness of the MERIDIAN mark — could bring future cancellation proceedings against MCB's registrations or raise invalidity defenses in any subsequent dispute. Given the substantial investment MCB has made in building and protecting its MERIDIAN brand portfolio, this covenant provides a meaningful layer of long-term security.
H. Amendment to Brindoval's Pending Trademark Application (Agreement §10)
The Agreement requires Brindoval to file an amendment to its pending trademark application, Serial No. 97/412,558, within fifteen (15) business days of execution of the Agreement. The amendment must accomplish two things:
(a) The mark as depicted in the application must be changed from "MERIDIAN FRESH" to the modified mark "BRINDOVAL MERIDIAN FRESH," consistent with the rebranding requirements described in Section B above.
(b) The description of goods must be amended to limit the identified goods to "household cleaning preparations sold exclusively through applicant's own branded retail stores and applicant's own e-commerce platform," thereby incorporating the channel restrictions described in Section C above directly into the application's identification of goods.
Upon Brindoval's filing of the amendment with the United States Patent and Trademark Office, MCB will withdraw its Notice of Opposition (TTAB Opposition No. 91/278,415) with Brindoval's express consent. The withdrawal-with-consent mechanism will permit the amended application to proceed to registration without the cloud of the pending opposition.
I. Liquidated Damages (Agreement §9)
To ensure compliance with the channel restrictions and product-category restrictions set forth in the Agreement, Section 9.2 provides for liquidated damages of Five Hundred Thousand Dollars ($500,000) per occurrence of a breach of the channel restrictions (Agreement §4) or the product-category restrictions (Agreement §5), in addition to any actual damages MCB may prove.
The liquidated-damages provision is structured to provide a meaningful financial deterrent against any unauthorized expansion by Brindoval beyond the permitted scope of use. The parties have acknowledged in the Agreement that actual damages from a breach of the channel or product-category restrictions would be difficult to calculate with precision and that the $500,000 per-occurrence figure represents a reasonable estimate of the harm MCB would suffer from such a breach.
We note that the $500,000 liquidated-damages figure was one of the most contested provisions during the negotiations. Brindoval's counsel initially proposed a liquidated-damages amount of $150,000 per occurrence, arguing that a higher figure would constitute an unenforceable penalty. MCB's position — which we advocated on the basis of the substantial value of the MERIDIAN brand, MCB's approximately $94.5 million in annual MERIDIAN cleaning-line revenue, and applicable Second Circuit precedent regarding the enforceability of liquidated-damages clauses in commercial agreements — ultimately prevailed. We are confident that the $500,000 figure would withstand judicial scrutiny if challenged.
J. Governing Law and Term (Agreement §§11, 12)
The Agreement is governed by the laws of the State of New York, without regard to conflict-of-laws principles. This is consistent with the parties' existing relationship to New York (MCB is headquartered in New York, the litigation was filed in the Southern District of New York, and the parties negotiated the Agreement in New York) and provides the benefit of well-developed commercial and trademark law under New York jurisprudence.
The term of the Agreement is perpetual, unless terminated by mutual written consent of the parties or upon a material breach by either party that remains uncured following the notice and cure procedures set forth in Section 12.3 of the Agreement. The perpetual term ensures lasting, durable protection for MCB's MERIDIAN marks and eliminates the risk that the protections secured through this settlement could lapse after a fixed period.
IV. Dismissal and TTAB Withdrawal Mechanics
Upon execution of both the Coexistence Agreement and the Escrow Agreement, C&H will promptly prepare and coordinate the filing of the following documents:
1. Joint Stipulation of Dismissal with Prejudice. C&H will prepare a Joint Stipulation of Dismissal with Prejudice for filing in the S.D.N.Y. action, Case No. 1:22-cv-09483. The stipulation will be signed by the undersigned, Alan Ngo, on behalf of MCB, and by Gregory T. Halverson of Halverson McKay & Pruitt LLP on behalf of Brindoval. The stipulation will provide that each party shall bear its own costs and attorneys' fees, except as otherwise set forth in the Coexistence Agreement (i.e., the $1,350,000 Settlement Payment).
2. Proposed Order of Dismissal with Prejudice. C&H will submit a Proposed Order of Dismissal with Prejudice for Judge Albright's signature, in the form customarily accepted by her chambers. We have reviewed the individual practices for Judge Albright's chambers and are prepared to submit the proposed order in the required format.
3. Withdrawal of Notice of Opposition with Consent. Upon Brindoval's filing of its amended trademark application as described in Section III(H) above, C&H will file a Withdrawal of Notice of Opposition with Consent at the TTAB (Opposition No. 91/278,415), thereby terminating the opposition proceeding and permitting Brindoval's amended application to proceed.
The Court's entry of the Order of Dismissal with Prejudice will trigger the release of the escrowed Settlement Payment to MCB, in accordance with the terms of the Escrow Agreement.
Our anticipated timeline for these steps is as follows: execution of the Coexistence Agreement and Escrow Agreement by approximately May 15, 2023; filing of the Joint Stipulation and Proposed Order of Dismissal shortly thereafter; and entry of the Court's dismissal order within approximately one to two weeks of filing. Based on Judge Albright's typical handling of stipulated dismissals, we anticipate that the order will be entered on or before June 2, 2023, and the Settlement Payment released to MCB promptly upon entry.
V. Financial Summary and Net Recovery Analysis
The following table summarizes the financial terms of the settlement and the total costs incurred by MCB in connection with this matter.
Settlement Payment to MCB: $1,350,000
Total Matter Costs Incurred by MCB (Estimated Through Conclusion of Matter):
Net Monetary Recovery:
$1,350,000 (Settlement Payment) − $721,590 (Total Matter Costs) = $628,410
Importantly, the value of this settlement extends far beyond the $628,410 net monetary recovery. The Coexistence Agreement delivers significant prospective brand-protection value through the suite of restrictive covenants and monitoring rights described in Part III above. Specifically:
• The channel restrictions confine Brindoval to its own retail and e-commerce channels, entirely eliminating overlap with MCB's nationwide distribution network.
• The product-category restrictions preserve MCB's freedom to expand the MERIDIAN brand into adjacent categories without the risk of a competitive conflict with Brindoval.
• The permanent trade-dress changes remove the packaging elements that the Court found to pose the greatest risk of point-of-sale confusion.
• The non-challenge covenant insulates MCB's three core registrations from future attack by Brindoval.
• The quality-monitoring rights provide MCB with ongoing visibility into the products sold under the modified mark and protect MCB's trademark rights.
• The liquidated-damages provisions create a meaningful financial deterrent against any unauthorized expansion by Brindoval.
These protections are of substantial importance in the context of MCB's broader business. As you know, MCB's MERIDIAN cleaning product line generated approximately $94.5 million in revenue in FY 2022, representing a significant portion of MCB's total FY 2022 revenue of approximately $387 million. MCB has invested a cumulative $47.2 million in advertising expenditures from 2011 through 2022 in building the MERIDIAN brand. The Coexistence Agreement safeguards that investment by ensuring that any future use by Brindoval of a MERIDIAN-incorporating mark occurs only under tightly controlled conditions that minimize the risk of consumer confusion and brand dilution.
VI. Recommendation
Based on our thorough analysis of the Agreement's terms, the litigation posture, the costs and risks of continued litigation, and the substantial prospective brand-protection value of the settlement, Calderwood & Harkness recommends that MCB approve the final terms and authorize execution of the Coexistence Agreement.
The Agreement achieves MCB's principal objectives in this matter:
1. Monetary Compensation. The $1,350,000 Settlement Payment provides meaningful compensation for Brindoval's infringement and yields a positive net recovery of $628,410 after accounting for all matter costs.
2. Effective Containment. The mark modification, channel restrictions, and product-category restrictions collectively confine Brindoval's use of any MERIDIAN-incorporating mark to a narrow, carefully circumscribed scope — limited to household cleaning products, sold only through Brindoval's own retail stores and e-commerce platform, under a mark that prominently features the Brindoval house name.
3. Elimination of Confusing Trade Dress. The permanent discontinuation of the teal-and-white color scheme and wave device eliminates the packaging elements that posed the greatest risk of consumer confusion at the point of sale.
4. Protection of Core Registrations. The non-challenge covenant eliminates the risk of future challenges to MCB's three foundational trademark registrations.
5. Enforceable Compliance Mechanisms. The liquidated-damages provision and quality-monitoring rights provide MCB with robust tools to ensure Brindoval's ongoing compliance with the terms of the Agreement.
We also wish to note the risks associated with continued litigation. While MCB's overall position is strong, the Court's decision at the PI stage not to enjoin Brindoval's use of the word mark "MERIDIAN FRESH" pending trial introduced a measure of uncertainty as to the ultimate outcome. A trial on the merits would entail significant additional costs — we estimate that proceeding through trial preparation, a trial of approximately five to seven days, and potential post-trial motions would cost MCB an additional $850,000 to $1,200,000 in legal fees and expert costs alone — with no guarantee of a more favorable result. Moreover, a trial outcome would not provide the channel restrictions, product-category restrictions, or non-challenge covenant that the Coexistence Agreement delivers; even a favorable injunction following trial would likely be narrower in scope and would not preclude Brindoval from seeking to expand into adjacent product categories or from challenging MCB's registrations in a future proceeding.
In our assessment, the settlement compares favorably to the projected cost and risk profile of proceeding through trial and delivers a more comprehensive, durable, and enforceable set of protections for the MERIDIAN brand.
VII. Request for Authorization
We respectfully request that you confirm MCB's authorization to finalize and execute the Coexistence Agreement on the terms summarized herein. Specifically, we request the following:
1. Confirmation of authorization for C&H to proceed with execution of the Coexistence Agreement and the concurrent Escrow Agreement.
2. Designation of MCB's signatory. We suggest that you, Thomas R. Hennessy, in your capacity as General Counsel of MCB, serve as the signatory on behalf of MCB. Please confirm whether this is acceptable or advise if an alternative signatory is preferred.
3. Internal consultation. We recommend that Sandra Kwan (Chief Executive Officer) and Rachel Dominguez (Vice President, Brand Management) be consulted as appropriate in connection with this authorization. Additionally, given the brand-protection implications of this matter for the broader portfolio investment, you may wish to inform Waypoint Capital Partners LLC (James Alderton, Managing Partner) of the settlement terms and the prospective brand-protection value they deliver.
Upon receipt of MCB's authorization, C&H will coordinate the execution process with Halverson McKay & Pruitt LLP and Dralvecen National Bank to ensure that both the Coexistence Agreement and the Escrow Agreement are executed simultaneously and that the escrow deposit is funded within the agreed-upon timeframe.
We are available to arrange a telephone call or in-person meeting at your convenience to discuss any questions you or the MCB team may have regarding the terms of the Agreement or the matters addressed in this letter. Please do not hesitate to reach out to the undersigned directly at (212) 554-7842 or via email at ango@calderwoodharkness.com.
Closing
We wish to express our sincere appreciation for the confidence that MCB has placed in Calderwood & Harkness throughout the course of this matter. It has been a privilege to represent the Company in this important brand-protection effort, and we are pleased that the outcome delivers both meaningful monetary recovery and durable long-term protections for the MERIDIAN brand portfolio.
We look forward to hearing from you at your earliest convenience and stand ready to proceed promptly upon receipt of your authorization.
Very truly yours,
CALDERWOOD & HARKNESS LLP
By: ________
Alan Ngo Partner, intellectual Property 1251 Avenue of the Americas, 40th Floor New York, NY 10020 Direct: (212) 554-7842 ango@calderwoodharkness.com
cc: Marcus Delgado, Billing Partner, Calderwood & Harkness LLP cc: Rachel Dominguez, Vice President, Brand Management, Meridian Consumer Brands LLC
Enclosure: Near-final draft of Trademark Coexistence Agreement (clean copy), dated May 8, 2023
Cost Category | Detail | Amount
Calderwood & Harkness Attorney Fees | $618,750
Alan Ngo (Partner): 142 hours × $1,050/hr | $149,100
Marcus Delgado (Partner): 58 hours × $1,050/hr | $60,900
Christy Bauer (Senior Associate): 310 hours × $725/hr | $224,750
Peter Vassiliev (Associate): 320 hours × $575/hr | $184,000
Expert Fees | Lakeshore Brand Consulting LLC (Dr. Elaine Furman) | $87,500
Mediation Fees | MCB's share of Novotny ADR Services LLC (total mediation fee of $25,000, split equally) | $12,500
Filing Fees and Service Costs | Court filing fees, TTAB filing fees, process server fees | $2,840
Total Matter Cost | $721,590

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