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Too, Inc. v. Kohl’s Department Stores, Inc.

United States District Court for the Southern District of New York
213 F.R.D. 138 (S.D.N.Y. 2003)


Windstar Apparel, Inc. (Windstar) (defendant) hired Mia DeCaro and Paula Abraham to start a girls sleep-wear division in the company. DeCaro was the designer for the division and created certain designs that are the subject of this litigation. Abraham was the salesperson for the clothing and sold the clothes to retailers, including Kohl’s Department Stores, Inc. (Kohl’s) (defendant). Too, Inc. (Too) (plaintiff) brought suit against Kohl’s and Windstar alleging copyright and trademark infringement based on the designs. Windstar filed a motion for leave to file a third party complaint against DeCaro and Abraham for contribution and indemnification. Windstar had to file a motion for leave to file the third party complaint because it did not file the third party complaint within the ten day window for doing so after it filed its original answer. Windstar alleged that DeCaro and Abraham had knowledge that the designs were copyrighted and trademarked and materially contributed to the alleged infringement.

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