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Case 1:09-cv-21893-WMH Document 16 Entered on FLSD Docket 07/31/2009 Page 5 of 24<br />

prejudice to the party against whom the claim is asserted.” Kason Indus. v. Component<br />

Hardware Group, Inc., 120 F.3d 1199, 1203 (11th Cir. 1997) (citing AmBrit, Inc. v. Kraft, Inc.,<br />

812 F.2d 1531, 1545 (11th Cir. 1986)). Where laches is apparent on the face of the complaint, it<br />

is a proper subject for a motion to dismiss. Szymanski v. Glen of South Barrington Prop.<br />

Owners Assoc., 689 N.E.2d 272, 274 (Ill. App. Ct. 1997) (citing Summers v. Village of Durand,<br />

643 N.E.2d 272 (Ill. App. Ct. 1994)). Here, Counts I through IX for Federal Trademark<br />

Infringement, Federal Trademark Infringement Based on Reverse Confusion, False<br />

Association/False Designation of Origin and Federal Unfair Competition, False Advertising,<br />

Common Law Trademark Infringement, Common Law Unfair Competition, Misappropriation of<br />

Trade Secrets, Violation of Florida Deceptive and Unfair Trade Practices Act, and Conversion,<br />

respectively, are all barred by laches.<br />

A. Plaintiffs Excessively Delayed in Asserting their Claims<br />

“Equity aids the vigilant and not those who slumber on their rights.”<br />

6 McCarthy on Trademarks and Unfair Competition § 31:1 (2009).<br />

Courts have not hesitated to dismiss Lanham Act claims on laches grounds when the<br />

plaintiff inexplicably delayed bringing suit for even a few years. GTE Corp. v. Williams, 649 F.<br />

Supp. 164 (C.D. Utah 1986) (2 year delay); Golden West Brewing Co. v Milonas & Sons, Inc.,<br />

104 F.2d 880 (9th Cir. 1939) (3 year delay); Columbia Univ. v. Columbia/HCA Healthcare<br />

Corp., 964 F. Supp. 733 (S.D.N.Y. 1997) (3½ year delay).<br />

Here, Plaintiffs allege that they were aware of Philippe from the moment the restaurant<br />

opened its doors on 60th Street “just a few blocks away from the MR CHOW restaurant on 57th<br />

Street” in December 2005. (Compl. 52.) However, Plaintiffs chose not to assert their claims<br />

until over three and a half years later through the commencement of this action on July 8,<br />

2009. Having remained silent for the three and a half years, it is inequitable and unreasonable<br />

for Plaintiffs to now ask this Court to enjoin Philippe from operating its highly successful<br />

restaurants or to otherwise seek relief from Philippe while Plaintiffs spent the last three and a<br />

half years silent. See Lake Caryonah Imp. Ass'n v. Pulte Home Corp., 903 F.2d 505, 510 (7th<br />

Cir. 1990) (“Having behaved more like Rip Van Winkle than the ‘early bird,’ [plaintiffs] now<br />

must live with the consequences.”)<br />

B. Plaintiffs’ Delay was Inexcusable<br />

-5-<br />

RICHMAN GREER, P.A.<br />

Miami • West Palm Beach

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