Margarita Wallach McCarter & English, LLP Partner 825

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McCarter & English, LLP Worldwide Plaza 825 Eighth Avenue 31st Floor New York, NY 10019-7475 www.mccarter.com

Margarita Wallach Partner T. 212-609-6819 F. 212-935-5214 [email protected]

July 30, 2020 VIA ECF WITH COURTESY COPY VIA E-MAIL The Honorable Analisa Torres United States District Court for the Southern District of New York 500 Pearl Street New York, NY 10007

Re: Daily Harvest, Inc. and Rachel Drori v. Revive Organics, Inc., 20 Civ. 3087 (AT) (RWL)

Dear Judge Torres: We represent Plaintiffs Daily Harvest, Inc. (“Daily Harvest”) and Rachel Drori

(collectively, “Plaintiffs”) in the above-referenced matter. We submit this joint letter and the enclosed Civil Case Management Plan and Scheduling Order on behalf of both parties, pursuant to the Court’s Order, entered on May 8, 2020, in anticipation of the Initial Pretrial Conference, which is scheduled for August 6, 2020 at 11:20 a.m. Pursuant to the Court’s Order, the Parties address the following points. I. Description of the Case

A. Plaintiffs’ Description of the Case

Plaintiff Daily Harvest, founded in 2015 by Rachel Drori, markets and manufactures a variety of frozen superfood products, including smoothies, harvest, oat and chia bowls, and other products, which are sold directly to consumers on a subscription basis almost exclusively through Daily Harvest’s original and distinctive website. Daily Harvest owns common law trademark rights and copyrights in the DH Website1 and the DH Packaging, which it has used since at least as early as April 20162 in conjunction with Daily Harvest’s goods and services, as well as certain original works that are subject to copyright protection.

The DH Website 3 consists of a combination of elements that give rise to an inherently distinctive and protectable trade dress that is evocative of a modern and sleek contemporary kitchen or market, and fresh, healthy food emanating from that kitchen or market, as described and depicted in the Complaint. The DH Packaging incorporates the

1 Daily Harvest owns copyright registrations for its website which Daily Harvest will allege in its copyright infringement claim when it amends the Complaint. 2 Despite the usual commercial changes to add new products and contrary to Defendant’s assertions, the claimed DH Website Trade Dress has been continuously used by Daily Harvest since at least as early as April 2016. 3 Terms defined in the Complaint are used herein without further definition or explanation.

Case 1:20-cv-03087-AT Document 20 Filed 07/30/20 Page 1 of 15

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same design aesthetic and branding as reflected in the DH Website, as described and depicted in the Complaint. In addition, Daily Harvest uses the original and copyright protected DH Works in connection with its efforts to market and promote its goods and services.

Defendant Revive Organics, Inc. (“Defendant” or “Revive”) is a Canadian corporation that appears to have launched its competing business in or about 2018. From its inception, Defendant has sought to unfairly compete with and trade off of Daily Harvest’s established reputation and goodwill by adopting and using a trade dress for its packaging4 and website, depicted below, that is and/or was nearly identical and confusingly similar to that of Daily Harvest, by infringing Daily Harvest’s original copyright-protected works, infringing the DH Trade Dress and by trading off of the image of Ms. Drori, without her consent. Indeed, Revive went so far as to even plagiarize portions of Daily Harvest’s website terms and conditions. Defendant’s conduct is intended to confuse and has in fact caused consumer confusion, and is an attempt by Defendant to reduce its costs of entry into the market by freeriding off of Daily Harvest’s brand image and the goodwill developed by Daily Harvest in the DH Trade Dress and the DH Works.

Daily Harvest’s Website and Cup Design as of October 2018

Revive’s Website and Cup Design as of October 2018

4 Defendant mistakenly contends that Daily Harvest omits any reference to the DH logo in its definition of its packaging trade dress. This is simply incorrect. See Complaint, ¶24. In addition, Defendant’s reliance upon Daily Harvest, Inc. v. Imperial Frozen Foods Op Co. LLC, 18-5838, 2018 WL 3642633 (S.D.N.Y. Sep. 1, 2018), is misplaced as that case was factually and procedurally distinguishable.



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Daily Harvest’s Website and Cup Design as of October 2018

Revive’s Website and Cup Design as of October 2018

As detailed in the Complaint, Daily Harvest sent no less than five cease and desist letters to Revive between October 3, 2018 and November 26, 2019 in an effort to resolve this dispute amicably. See Complaint, ¶36-43, Exs. 4 and 5. When faced with Daily Harvest’s objections, Revive, rather than adopt an original and creative brand identity distinct from that of Daily Harvest—as virtually every other competitor in the market has done—continued (as it does to date) to make minor and in some cases, imperceptible revisions to its website. While Revive did revise its product packaging so that it was no longer a knock-off of Daily Harvest’s packaging (see Complaint, ¶35), Revive continued to use images of its Infringing Packaging on social media platforms in the U.S. even after the Complaint in this action was filed. In addition, Revive—even after receipt of multiple cease and desist letters from Daily Harvest—began to use images depicted below that were virtually identical and substantially similar to original photographs belonging to Daily Harvest to promote its brand, thereby compounding Revive’s conduct and forcing Daily Harvest to bring this action:

The DH Images Revive’s Infringing Images



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The DH Images Revive’s Infringing Images

Based upon Defendant’s pattern of wrongful conduct, the Complaint asserts claims for trade dress infringement and unfair competition under both federal and state law, as well as a claim for violation of New York Civil Rights Law Sections 50 and 51. Upon receipt of the certificates of registration for Daily Harvest’s original works, Daily Harvest will amend its complaint to include a claim for copyright infringement of the DH Works.

Revive, in an effort to obfuscate, ignores not only controlling and applicable law but the undisputable facts, which establish Revive’s intentional, blatant, and continuing pattern of conduct intended to co-opt Daily Harvest’s branding identity. The factual record will show that Revive has copied Daily Harvest’s branding since Revive’s inception, and has slavishly and predictably adopted these elements at every turn. This copying, in addition to being manifestly deliberate in nature, has caused multiple instances of actual consumer confusion. If this case proceeds, Daily Harvest fully expects to obtain documents and other evidence through discovery that confirms this clear narrative.

In an effort to escape liability and only in response to Daily Harvest’s repeated objections and the filing of the Complaint, Revive adopted revised packaging and has made some piece-meal revisions to its website, as depicted in its selective and misleading comparison below. However, Revive’s superficial revisions, which have been made only after this lawsuit was filed, are not sufficient to resolve its continuing infringement of the DH Website Trade Dress and the DH Works. Revive further claims to have revised its website terms and conditions and ceased use of all infringing images in the past month. Despite these purported changes, Revive remains liable for the damages that Plaintiffs have suffered as a result of Revive’s prior unlawful conduct and its continuing unlawful conduct. Revive, in an effort to defend its wrongful conduct which it simply cannot deny, is left with no other option but to attack the protectability of Daily Harvest’s intellectual property and spin a narrative that utterly ignores its pattern of bad faith conduct.



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1. The DH Trade Dress Has Been Properly Articulated and Any Contemplated Motion to Dismiss on this Ground Will Be Frivolous.

The Complaint identifies and articulates a combination of elements included in both

the DH Website and the DH Packaging that comprise a distinctive and protectable trade dress. Because Daily Harvest sells its products almost entirely via the DH Website, that website is the equivalent of a brick and mortar store. As a result, the DH Website acts as the primary point of interaction between Daily Harvest and its consumers, who associate the look and feel of the DH Website with Daily Harvest. The Complaint articulates the elements of protectable trade dress, used throughout every iteration of the DH Website since at least as early as April of 2016, as alleged in the Complaint. See Complaint, ¶ 25.

Revive has seized upon the phrase “laundry list” in case law and insists that the DH Website Trade Dress is merely a “laundry list” of elements, tailored to encompass the elements of Revive’s website trade dress. In doing so, Revive ignores the reality that any verbal or written articulation of the elements of any trade dress results in what may be described as a “list” and that this alone does not result in invalidation of a claimed trade dress. Indeed, a complaint identifying a precise list of features or elements of a website and claiming trade dress rights in the particular combination of these elements, as the Complaint here does, properly defines a trade dress at the pleadings stage. See, e.g., Touchpoint Commc'n, LLC v. DentalFone, LLC, 3:15-CV-05240-JRC, 2016 WL 525932 (W.D. Wash. Feb. 10, 2016)(denying motion to dismiss claim for infringement of trade dress for website); Lepton Labs, LLC v. Walker, 55 F.Supp.3d 1230, 1240 (C.D. Cal. 2014) (denying motion to dismiss claim for trade dress infringement based on website where complaint “set forth a list of nine features of its alleged trade dress and [claimed] ‘the particularized combination of all of these elements.’”).

The Complaint is not subject to a motion to dismiss on any ground as all claims, particularly the trade dress infringement claim, are properly pled. Any motion to dismiss contemplated by Revive will lack a good faith basis and constitute frivolous motion practice given the allegations of the Complaint, making any such motion sanctionable.

2. The DH Trade Dress is Protectable.

Daily Harvest claims a combination of elements that give rise to its claimed website and packaging trade dress, which are inherently distinctive. Daily Harvest does not in any way seek protection of isolated, discrete elements within the claimed trade dress. The law is clear within the Second Circuit that “the combination and arrangement of . . . design elements comprise the trade dress" and "[e]ven if individual elements of a trade dress are functional, their arrangement or combination may . . . deserve trade dress protection." Visual Impact Films Corp. v. Athalon Sportgear, Inc.,16 CV 355 (VB), 2016 WL 642399, *3 (S.D.N.Y. 2016). Indeed, Revive’s effort to dissect Daily Harvest’s claimed trade dress element by element is improper, having been “repeatedly rejected” in the Second Circuit, and ignores the applicable legal standard. See id. (“The Second Circuit has repeatedly rejected this approach; it is improper for Defendants to break the trade dress down into specific elements and call them functional, because [the] claim is that the combination and arrangement of those design elements comprise the trade dress.”). Daily Harvest has, as alleged in the Complaint, a



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protectable trade dress for the DH Website, which is distinctive and non-functional, and which consumers recognize as signifying Daily Harvest as the source of the products and services offered through the DH Website.

Revive’s infringement has in fact caused actual consumer confusion which has been documented by Daily Harvest and will be presented to the Court. Some of these instances of confusion include situations where consumers have been dissatisfied and upset by Revive’s business practices and the inferior quality of Revive’s products (which in one case was delivered to the consumer in a container that had been opened) and that the consumers mistakenly believed originated from Daily Harvest. Evidence of actual confusion constitutes evidence of likelihood of confusion in the infringement analysis and also indicates that the DH Trade Dress is distinctive. See Virgin Enters. Ltd. v. Nawab, 335 F.3d 141, 151 (2d Cir. 2003) (“the existence of actual consumer confusion indicated a likelihood of consumer confusion . . . [w]e have therefore deemed evidence of actual confusion ‘particularly relevant] to the [infringement] inquiry”); Bulman v. 2BKCO, Inc., 882 F.Supp.2d 551, 562 (S.D.N.Y. 2012) (“there can be no more positive proof of likelihood of confusion than evidence of actual confusion.”); Flat Rate Movers, Ltd. v. FlatRate Moving & Storage, Inc., 104 F.Supp.3d 371, 380 (S.D.N.Y. 2015) (“Evidence of actual consumer confusion is strong evidence of a likelihood of confusion.”); Gross v. Bare Escentuals Beauty, Inc., 641 F.Supp.2d 175, 187 (S.D.N.Y. 2008) (“evidence of actual confusion is given particular weight” in the likelihood of confusion analysis); see also 2 McCarthy on Trademarks and Unfair Competition § 15:37 (5th ed.)(“Instances of actual confusion can be evidence from which to infer the existence of a secondary meaning” and “[p]roof that defendant intentionally induced substitution of its products for those of plaintiff by using the tool of a similar mark is ‘intentional palming off’ which is probative of actual confusion and hence, also of secondary meaning.”).

Contrary to Revive’s assertions, Daily Harvest has no objection to the fair competition from third parties in the marketplace. In fact, other competitors in the same segment of the market – in stark contrast to Revive – use packaging and website designs wholly distinct from that of Daily Harvest that are intended to create a unique brand identity and are readily distinguishable from that of Daily Harvest. The competitive packaging and websites use trade dresses (including color schemes, fonts, layouts, artwork and photography) that are overall unique and decidedly dissimilar from that of Daily Harvest. Such third party competitive trade dresses, which Daily Harvest will introduce into evidence, underscore that the combination of elements used in the DH Trade Dress and copied by Revive are not commonly used by competitors and that adoption and use by Revive of its Infringing Packaging and Infringing Website Trade Dress was singularly intended to free-ride off of Daily Harvest’s distinctive brand identity. It is entirely disingenuous for Revive to wholesale copy Daily Harvest’s entire website, including its terms and conditions, and then posture that Daily Harvest is trying to “stifle” fair competition when Daily Harvest seeks to protect the intellectual property it has developed over the course of years at significant expense. Indeed, competition cannot be called “fair” when a competitor misappropriates another’s hard earned valuable intellectual property in order to bootstrap themselves into a market and thereby avoid incurring their own start-up and development costs.

Defendant’s arguments that Daily Harvest’s website contains no elements that are unique or unusual enough to make it stand out as inherently distinctive in the field are belied



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by the degree of slavish copying conducted by Revive as well as the documented instances of consumer confusion. Indeed, below are additional side-by-side comparisons of excerpts of the Daily Harvest and Revive websites, clearly demonstrating Revive’s bad faith copying:

The DH Website 4/16/2020

Revive’s Website 4/16/20

Revive’s Website 7/29/20



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DH User Experience Pages 4/16/20

Revive’s User Experience Pages 4/16/20

Revive’s User Experience Pages 7/29/20



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Defendant lacks any viable defense to Daily Harvest’s claims. Despite its insistence that it has not engaged in any wrongful conduct, the overall pattern of Revive’s behavior in co-opting and infringing Daily Harvest’s original and inherently distinctive branding, the DH Trade Dress, and the DH Works is undeniable. Plaintiffs have adequately pled the elements of each claim in their Complaint such that any motion to dismiss will be frivolous.

B. Defendant’s Description of the Case

Revive competes with Daily Harvest to offer subscription services for ready-to-blend frozen smoothies and other superfood meals. Revive was founded in Canada in July 2018 and launched in the United States in May 2019. Notwithstanding Daily Harvest’s narrative, this is not a case about intellectual property infringement. Rather, this action is a bald effort by Daily Harvest to stifle fair competition by invoking invalid purported intellectual property rights to protect an unprotectable business idea. Daily Harvest’s claims have no merit and, in fact, as currently pled, are dismissible.

Daily Harvest’s Website Trade Dress Claims. Because Daily Harvest’s claimed trade dress in its website and packaging is not registered, Daily Harvest bears a “heavy burden to demonstrate it is entitled to protection.” 20th Century Wear, Inc. v. Sanmark-Stardust, Inc., 815 F.2d 8, 10 (2d Cir. 1987). To succeed on a claim of trade dress infringement, Daily Harvest must establish that (1) its trade dress “is distinctive as to the source of the good,” – in other words, that consumers recognize the design of the website (as contrasted with the prominent use of the DAILY HARVEST name on every page of the website and in the URL) as an indication of source that is unique to Daily Harvest, (2) that the trade dress is non-functional, and (3) that there is a likelihood of confusion between Daily Harvest’s website and Revive’s website. Yurman Design, Inc. v. PAJ, Inc., 262 F.3d 1010, 115–16 (2d Cir. 2001). Daily Harvest fails on all three of these elements.


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With respect to the website, Daily Harvest has no valid trade dress rights and, even if it did, they have not been infringed by Revive:

First, Daily Harvest’s alleged website trade dress is not distinctive, meaning that the design of the website itself is not an indicator of source. Aside from the Daily Harvest name, the website is a compilation of common ornamental and functional features that are neither inherently distinctive nor have they acquired distinctiveness. There is nothing unique or unusual enough on the website to make it stand out as inherently distinctive in the field. And Daily Harvest has not plead any facts to show that its website, active at most for the mere five years Daily Harvest has been in business and that has itself undergone changes during those five years, has acquired distinctiveness. Indeed, all Daily Harvest has plead is a three-page laundry list of elements (Compl. ¶ 21), cherry-picked to target Revive’s website, that is not sufficient to state a claim for trade dress protection. See Eliya, Inc. v. Steven Madden, Ltd., 749 Fed. Appx. 43, 47 (2d Cir. 2018) (affirming dismissal of trade dress claims that were no more than “a laundry list of the elements that constitute” the alleged trade dress; rather, “to plead a claim of trade dress infringement involving the overall appearance of a product, a plaintiff must offer . . . ‘a precise expression of the character and scope of the claimed trade dress’”) (quoting Landscape Forms, Inc. v. Columbia Cascade Co., 113 F.3d 373, 381 (2d Cir. 1997)).

Second, Daily Harvest’s alleged website trade dress is also invalid because the vast majority of its listed elements are functional and, even when combined with ornamental elements, cannot serve as part of its protectable trade dress. This includes the following elements, all of which are ubiquitous on websites and designed to make it easier to read the contents of the website: “crisp white backgrounds,” “modern and sleek black font,” brand names “centered at the top of a homepage,” “sleek black banners,” “colorful photograph[s] of a line up [of the products sold on the website] with garnishes,” “categories of products displayed horizontally in black font,” displaying ingredients in a “transparent cup” so they can be seen, “photograph[s] from a head-on view perspective as if ready for the consumer to enjoy,” “subpages featur[ing] rows and columns of product images” and “textual description[s] of the product, with a summary of the benefits delivered.” See Jeffrey Milstein, Inc. v. Greger, Lawlor, Roth, Inc., 58 F.3d 27, 32 (2d Cir. 1995) (If “a trade dress is composed exclusively of commonly used or functional elements,” it “might suggest that that dress should be regarded as unprotectable. . . to avoid tying up a product or marketing idea.”).

Third, even if Daily Harvest could prove a protectable trade dress in its website, it is inconceivable that any customer would buy a Revive product off of the <www.revivesuperfoods.com> website on the mistaken belief that she or he is buying a Daily Harvest product. As highlighted in the chart below showing (i) the April 2020 homepage from Daily Harvest’s website, (ii) the April 2020 homepage from Revive’s website and (iii) the July 2020 homepage from Revive’s website, when the websites are placed side by side, their designs simply are not confusingly similar. Daily Harvest ignores that Revive’s website, when looked at as a whole, evokes an entirely different look and feel from Daily Harvest’s website – a simple scroll through <revivesuperfoods.com> shows that Revive’s website is bolder, more colorful, more fun and, significantly, contains the name REVIVE SUPERFOODS on every single page. Daily Harvest’s website, in contrast, evokes an overall look and feel that is crisper, cleaner, more modern, and more sleek; moreover, to clearly identify its source, it uses


https://www.courtlistener.com/opinion/740489/landscape-forms-inc-v-columbia-cascade-company/

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the name DAILY HARVEST prominently all over. The prominent use of these brand names throughout the websites is itself powerful evidence that confusion is unlikely. See, e.g., Louis Vuitton Malletier v. Dooney & Bourke, Inc., 340 F. Supp. 2d 415, 432 (S.D.N.Y. 2004) (“prominent use” of brand name on the product “significantly reduces, if not altogether eliminates, the likelihood that consumers will be confused as to the source of the parties’ products”) (citations omitted).

Daily Harvest asserts that the recent changes made to Revive’s website are merely “piece-meal” or “superficial.” As Revive has explained, a number of these updates were in the works before Daily Harvest even filed its complaint as part of Revive’s rebranding process. Because Revive is updating its website as part of its rebranding, it has made additional changes to try to appease Daily Harvest – not because Revive believes Daily Harvest has any trade dress rights, not because Daily Harvest sent two cease-and-desist letters a year part (in October 2018 and October 2019) or filed a complaint in April 2020, and not because Revive believes there is any infringement, but rather because Revive simply wants to get on with its business of selling products to home-bound consumers during this difficult time. Where Revive has refused to budge is with respect to showing its products and product ingredients in translucent cups against white backgrounds. It is hardly surprising that imagery of the parties’ products might look similar considering they sell the same products. The depiction of vegetables, fruits, oats and other ingredients arrayed in cups or bowls against white backgrounds is hardly a trade dress to which anyone is entitled to exclusive rights. And images of translucent cups showing ingredients are common in the superfoods delivery space and, indeed, the only way to show the actual ingredients in a cup. These are elements that are simply not protectable. While Daily Harvest still contends that Revive’s changes are “not sufficient,” it refuses to acknowledge that the sites are already so different there is simply no credible risk of confusion.5

5 Contrary to its assertions, Daily Harvest has shared no evidence of “actual confusion” with Revive caused by the similarities in the website trade dress. They are, at best, routine incidents of nonactionable confusion caused by the fact that the parties are competitors who sell the same products.


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Daily Harvest Website in April 2020

Revive Superfoods Website in April 2020

Revive Superfoods website in July 2020

Daily Harvest’s Packing Trade Dress Claims. Daily Harvest’s alleged trade dress claims in its packaging fail for the same reasons. The design elements of Daily Harvest’s packaging (separate and apart for the DAILY HARVEST name and the D/H logo) are neither inherently distinctive nor have they acquired distinctiveness. As another court in the Southern District has already held in a previous litigation that Daily Harvest filed against yet another competitor, Daily Harvest’s “claims as to secondary meaning [in the package design] . . . are conclusory at best and do not meet the heavy burden required to prove a trade dress has acquired secondary meaning.” Daily Harvest, Inc. v. Imperial Frozen Foods Op Co. LLC, 18-


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5838, 2018 WL 3642633, at *4 (S.D.N.Y. Sep. 1, 2018). And once again, Daily Harvest’s description of the alleged packaging trade dress deceptively leaves out the elements that are the mostly likely to help consumers identify the brand – namely, the repeated references to DAILY HARVEST on the cups and the prominent D/H logo. Revive has never used those elements; to the contrary, its colorful packaging prominently features the REVIVE SUPERFOODS trademark.

Moreover, Daily Harvest’s complaint deceptively suggests that the packaging previously used by Revive only in Canada (a country where Daily Harvest does not operate and in which it has no trademark or trade dress rights whatsoever) is relevant to its claims for trade dress infringement in the United States. That Canadian trade dress (shown in paragraph 35 of the complaint as described as the alleged “Infringing Packaging”) was never used in the United States (though, even if it had been, it would not have been infringing given the significant differences in the design). When the REVIVE SUPERFOODS packaging actually used by Revive in the United States is placed side-by-side with Daily Harvest’s packaging, as shown below, there is no question that the packaging is not confusingly similar:

Daily Harvest’s Copyright Claims. Although Revive has not yet seen Daily Harvest’s copyright claims, it fully expects these claims to be similarly meritless. Daily Harvest has no valid claims against Revive with respect to photos showing arms or hands popping out of walls. Although both companies have posted their own versions of this concept, as shown in Daily Harvest’s section above, they are similar once again only with respect to the idea and concept. The idea of photos of arms or hands popping out of the wall is not original, and the expression is not substantially similar: The poses are different, the products depicted are different, and the backgrounds are different. Indeed, other brands have utilized similar concepts. See, for example, the below photos, which served as part of Revive’s inspiration for its own photos:

Daily Harvest’s attempt to protect otherwise unprotectable common elements and ideas in order to gain a competitive advantage will not succeed. Its claims have no merit.


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II. Contemplated Motions

Plaintiffs do not anticipate filing any motions at this time, given Defendant has consented to Plaintiffs’ amendment of the Complaint in this action to add a claim for copyright infringement upon receipt of Plaintiffs’ certificates of copyright registration. Plaintiffs expect to prevail on their claims by summary judgment.

Defendant Revive contemplates moving to dismiss the complaint against it under Fed. R. Civ. P. 12(b)(6) and will file its pre-motion letter on or before October 21, 2020. Should any of Daily Harvest’s claims survive a motion to dismiss, Revive expects to have these claims resolved on summary judgment.

III. The Prospects for Settlement

Plaintiffs’ Position

The Parties have been engaged in on-going settlement discussions since on or about May 7, 2020, but have not yet been able to reach an agreement. Plaintiffs take the position that participation in a settlement conference before the Magistrate Judge or participation in the District’s Mediation Program after the close of fact discovery may be beneficial to resolving this dispute. Plaintiffs do not agree with Defendant’s characterization that agreement has been reached on “very substantial elements,” that there is only “one open issue between the parties related to Revive’s presentation of its smoothie images on its website,” or that the parties have reached agreement on the “vast majority of the website trade dress claims,” as stated by Defendant below. Indeed, as Defendant itself has indicated, settlement discussions are “fluid, with many different points raised” and “when settlement offers contain multiple elements, changes of one element may impact changes of other elements.” Defendant’s counsel has in fact repeatedly advised that some or all of the changes it has made to date are contingent upon Daily Harvest’s acceptance of its proposed product photography. The parties have not agreed on all of the copyright claims or on the issue of Revive’s product photography (for all of its products, not only the smoothies) which takes up most of the real estate on Revive’s website, thereby making most of Revive’s website indistinguishable from that of Daily Harvest despite the nominal changes made by Revive on a limited number of selective pages. Plaintiffs strongly believe discovery will show Defendant’s intentional copying of Daily Harvest’s intellectual property such that any mediation will only be fruitful once the parties both are privy to that information. Since Revive continues to deny it has copied the DH Website (despite evidence to the contrary) and continues to deny that DH owns any protectable rights in its website trade dress or copyrights, and has continued to use the Revive infringing website despite being provided by Plaintiffs with courtesy copies of communications received from consumers evidencing consumer confusion, any mediation prior to discovery is unlikely to persuade Revive to make significant changes that will be accepted by Daily Harvest. Without the benefit of discovery, Revive appears unlikely to make meaningful changes to its Infringing Trade Dress and will simply continue to insist that it has not engaged in any wrongful conduct. Additionally, discovery is likely to show that Revive intentionally copied the DH Website and that the DH Website has acquired secondary meaning, which is the very reason that Revive chose to misappropriate the DH Trade dress and the DH Works to bootstrap its competing business.


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Defendant’s Position

Although Revive agrees that the parties have not yet reached agreement, Revive notes that the parties have agreed on very substantial elements of a settlement agreement, including with respect to the package trade dress claims, the right of publicity claims, the copyright claims, and the vast majority of the website trade dress claims. The parties also have reached agreement on a multi-step process for future dispute resolution, although Daily Harvest has taken the position that the detailed terms are confidential and cannot be disclosed in this letter. Unless Daily Harvest has changed its previously stated position, there is one open issue between the parties, related to Revive’s presentation of its smoothie images in its website. Given how close the parties are, Revive strongly believes that an early settlement conference or mediation will help overcome the final obstacles to settlement. Revive is prepared to have a settlement conference with the Magistrate Judge or to participate in the Southern District’s mediation program or in private mediation. Either way, Revive believes it would be expedient to pursue such a settlement effort prior to the parties’ forthcoming amendment to the complaint and anticipated motion to dismiss, which would, if successful, save both party and judicial resources. Having such a session with the parties’ principals will very likely allow this matter to be resolved.

Respectfully submitted,

s/ Margarita Wallach

Margarita Wallach

cc: Via ECF and E-Mail All Counsel of Record


Documents

Margarita Wallach McCarter & English, LLP Partner 825