Richard A. De Sevo has extensive litigation, class action and counseling experience in trademark, trade dress, false advertising, consumer fraud and copyright matters.
Trademark, Trade Dress and False Advertising
Richard has litigated numerous trademark and false advertising actions under the Lanham Act, including:
- Obtaining a preliminary injunction and consent decree enjoining Steve Hershey from using the Hershey Company’s famous trade dress in political advertising. Hershey Co. v. Friends of Steve Hershey, 33 F. Supp. 3d 588 (D. Md. 2014).
- Successful defense of Hershey against a claim that its KISSES mark was generic and against a preliminary injunction action asserting trademark infringement and false advertising claims that sought to stop the launch of Hershey’s SmartZone bar.
- Successful defense of Sidney Frank Importing Co.’s trade dress of its GREY GOOSE vodka bottle in federal court in New York and against a false advertising suit involving GREY GOOSE vodka in Millennium Import Co. v. Sidney Frank Importing Co., 2004 U.S. Dist. LEXIS 11871 (D. Minn. June 11, 2004).
- Obtaining a consent decree enjoining a generic company from falsely advertising its drug as a generic equivalent of Pfizer’s product.
- Successful defense of Rhône-Poulenc Rorer Pharmaceuticals, Inc. in a false advertising case involving MAALOX, Johnson & Johnson-Merck Consumer Pharmaceuticals Co. v. Rhône-Poulenc Rorer Pharmaceuticals, Inc., 19 F.3d 125 (3d Cir. 1994).
- Obtaining a permanent injunction barring the designer Joseph Abboud from infringing JA Apparel’s JOSEPH ABBOUD trademarks, JA Apparel Corp. v. Abboud, 682 F. Supp.2d 294 (S.D.N.Y. 2010).
Consumer Fraud Class Actions
Richard has successfully defended over 30 state and national putative consumer fraud class actions in New York, California, Texas, Illinois, Massachusetts, Florida, Alabama and Louisiana. Some of his successes include:
- Denial of certification of class of purchasers of anti-aging cosmetics, In re Avon Anti-Aging Skincare Creams & Prods. Marketing & Sales Practices Litig., (S.D.N.Y. Sept. 30, 2015)
- Dismissal at trial and on appeal of several putative class actions in state and federal courts based on alleged advertising of liquor to children and underage adults.
- Successful appeals by Pfizer of orders certifying a class of LISTERINE purchasers alleging claims under Massachusetts’ consumer fraud statute, Kwaak v. Pfizer, 71 Mass. App. Ct. 293 (2008), and California Business & Professional Code § 17200, Pfizer Inc. v. Superior Court, 182 Cal. App. 4th 622 (2010).
- Reversal of class certification in Warner-Lambert Co. v. Mills, 2005 WL 2088366 (Tex. App. – Beaumont Aug. 31, 2005).
- Dismissal of consumer fraud claims based on federal preemption in Mills v. Warner-Lambert Co., 581 F. Supp.2d 772 (E.D. Tex. 2008), and Kanter v. Warner-Lambert Co., 99 Cal. App. 4th 780 (Cal. Ct. App. 2002).
- Successful defense of ABC and Granada Entertainment against claims that the television program “I’m a Celebrity – Get Me Out of Here” infringed CBS’s copyright and trade dress rights to the television program “Survivor” in CBS Broadcasting Inc. v. ABC, Inc., 2003 U.S. Dist. LEXIS 20258 (S.D.N.Y. Jan. 14, 2003).
- Successful representation of the owners of the James Bond copyright, establishing that the James Bond character was copyrighted and could not be mimicked in television commercials.
In addition to numerous other litigations in these fields, Richard has represented clients in alternative dispute resolution proceedings before the National Advertising Division of the Council of the Better Business Bureaus and in investigations by state attorneys general under state consumer fraud and deceptive trade practices acts. He has also participated in several major antitrust matters, including class actions, dealer termination and monopolization cases, and was the principal draftsman of Indian Head’s successful brief in the Supreme Court in Allied Tube & Conduit Corp. v. Indian Head, Inc., 486 U.S. 492 (1988).
Richard is the author of “Antidilution Laws: The Unresolved Dilemma of Preemption Under the Lanham Act,” 84 Trademark Reporter 300 (1994), and “Consumer Standing Under Section 43(a) – An Issue Whose Time Has Passed,” 88 Trademark Reporter 1 (1998). He co-authored with Milton Handler “The Noerr Doctrine and Its Sham Exception,” 6 Cardozo Law Review 1 (1984). He has also been a member of the Editorial Board of the Trademark Reporter and has served as a member of several bar association committees in his areas of concentration.