MINNEAPOLIS — Smitten Kitten, a brick-and-mortar and online retailer, has dropped its suit against Mike Fernandez, who operates a number of websites that use the words "smitten" and "kitten."
The Minneapolis retailer, which sells online at SmittenKittenOnline.com, said it registered the Smitten Kitten trademark for retail sex toy stores and filed suit against Fernandez in September 2010 at U.S. District Court in Columbus.
But recently Smitten Kitten filed a motion to dismiss the case.
Smitten Kitten attorney Amy Ruth Ito didn't respond to XBIZ requests for comments and the reason for the dismissal, but the case hasn't gone anywhere since the initial complaint was filed.
Since the get-go, Smitten Kitten hasn't been able to trace Fernandez's whereabouts to be served.
On five separate attempts process servers simply said they couldn't locate Fernandez or any of his businesses despite that Smitten Kitten's attorney told a federal judge that XBIZ had spoken to him.
"[The] defendant does indeed seem to be aware of the case," Smitten Kitten counsel told the judge. "He is quoted in an article published online by XBIZ ... concerning the lawsuit filed against him."
In that 2010 interview, Fernandez said he had been struck with claims that don't make sense.
"If anyone stole the Smitten Kitten's name, it is them," Fernandez told XBIZ at the time. "They don't have exclusive rights to the name. The name is after the 1950s cartoon 'Tom and Jerry.'"
"Smitten Kitten" is the 66th "Tom and Jerry" cartoon where Tom spots an attractive female cat and falls head over heels in love with her, dangling out his tongue as she giggles.
Further, Fernandez said, "The sites have never been active; we never launched."
Fernandez said it was his ex-girlfriend who came up with the names of the sites but that he and his ex split up three years ago and so did the idea for commercial lingerie sites, as well as their umbrella company, Sex Toys Revolutions.
"I received a letter from [Smitten Kitten operators], and I immediately got pissed off and insulted as well because my sites looked much better than their sites," he said. "In fact, one of my main images, inspired by the 'Tom and Jerry' cartoon, was created by laboring for six hours using the smudge tool in Photoshop. The fact is the joke is on them. I never commercially launched the sites."