Tiffany & Co.: $11M trademark bomb on eve of eBay trial

Well, it looks like they didn’t settle…and things have gotten ugly. Apparently Tiffany & Co. tried to include infringement of 11 additional trademarks on the eve of the trial, after nearly three years of discovery. eBay filed a motion in limine to exclude the trademarks from the litigation:

Defendant eBay, Inc. (“eBay”) respectfully submits this memorandum in support of its motion in limine to preclude plaintiffs Tiffany (NJ) Inc. and Tiffany & Company (collectively, “Tiffany”) from introducing evidence at trial concerning eleven Tiffany trademarks identified for the first time on the eve of trial….Despite having solely relied upon the seven trademarks mentioned in Tiffany’s Complaint for nearly three years, on April 2, 2007, in its Proposed Findings of Fact, Tiffany revealed for the first time its intention to seek damages with respect to eleven additional trademarks that have never been a part of this proceeding. Of the eleven trademarks that Tiffany is attempting to put into play, four relate to Tiffany’s packaging, advertising, and collateral materials, two relate to the word ATLAS, and five relate to ELSA PERETTI, PERETTI, and PALOMA PICASSO branded merchandise. Shortly after learning of Tiffany’s improper attempt to end-run the Federal Rules of Civil Procedure by, in effect, amending its Complaint on the eve of trial and long after the close of discovery, eBay requested that Tiffany withdraw these trademarks from its Proposed Findings of Fact and from this proceeding. Tiffany refused, asserting instead that it intends now to include these newly-introduced marks in this action and to seek statutory damages on each of them…Not only has Tiffany unduly delayed in attempting to inject the eleven new marks into this lawsuit, but its pretrial submission is highly prejudicial to eBay. Significantly; Tiffany’s newly asserted marks raise the specter of an increased damages award, as Tiffany has requested statutory damages of $1,000,000 per counterfeit mark per type of goods or services.

Tiffany’s opposed the motion.