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tv   [untitled]    August 21, 2013 8:30pm-9:01pm PDT

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spade clearly benefits from the association with the spade brand and should be put in the same category as kate spade saturday. you have the authority to look at the group of words and interpret the current law to find formula retail on these facts. no. 3 on the list it features in section b of planning code section 3.3 is service mark. a service mark is similar to a trademark in definition. however, it identifies and distinguishes the source of service instead of the source of goods. like a trademark it is defined as a group of words that identifies and distinguishes from a source of service from one party from those of others. again, the zoning administrator acknowledges that kate spade saturday would be counted together with kate spade because it appears in both names. with jack spade, spade
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relies on the name. we ask you to know what the public recognizes. they are part of the same formula. it is beyond reasonable that the group of words jack and kate are substantially similar to the group of words kate and spade. and that the intention thes clearly to identify the source as the spade family of brands. when i say a spade is a spade, it's not just a punish. it's the idea that kate spade itself put forth in order to derive benefit from the shared association. i have already identified shared features that is already required as jack
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spade as retail. i would like you to consider another one. standard b 1, standardized array of merchandise. kate spade and jack spade is simply a his and hers. kate spade and jack spade merchandise are designed in the same building in new york by kate spade staff. when looking for merchandise that is minimally gender non-specific, we find it is remarkably similar in the array. they look as they were designed by the same person. all merchandise from both stores is shipped from a single distribution location and they are from a single distributor bearing uniform marking. further, this board has
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previously agreed to consider a signed lease as evidence for formula retail. look, a lease is a document, it's not a store. it's a piece of paper. it's a promise, it's a commitment. it should be considered. and we should consider other similar commitments made by the defendant promises to open stores. they are set to specific marketing, we expect to double our fleet of stores over the next few years. because fifths and pacific is a publically traded company, a materially listing to investors could mislead the public. investors are meant to make financial statements on that business which are many more
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times more consequential that a single lease. the commitments is more than reliable on a lease such as the one held by american apparel by valencia which never materialized. >> high as jefferson has explained the code exist today coding that jack and kate spade are part of the same formula. regarding the standardized ray of merchandise, common trade marks in b 2 and common service marks in b 3. you have a clear basis to find that the spade stores should be counted together under the law as it is currently drafted. the zone is administrator so far has a different interpretation. although i hope after today's
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presentation he will agree with us. today the zoning and strar does not find it as part of the same formula. this is just an interpretation. it's a judgment call. to understanding this interpretation several of us got together and contacted the zoning administrator on a conference call. he did name examples that would be formula. he acknowledged the fact before us that the real life in asset saturday and kate spade would be in both names. i ask the zone is administrator about a hypothetical. i asked if starbucks coffee decided to start a tea store for the store used blue instead of green, starbucks has green stores, instead of the mermaid logo, it had a dragon and sold no
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coffee, the look would be different, the color scheme would be different. despite these differences the zoning administrator readily agree that starbucks tea would be accounted for as starbucks. that entirely independent businesses who share no common ownership structure at all could be coming together as formula even if it was zero coordination among them. if entirely independent businesses had a standardized or what could be taken as standardized ray of merchandise, the department could deny them a business. this is absurd but this is a result that was conceivable to the zoning administrator. on this basis, a new independent coffee shop, for example whose merchandise
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is coffee tea and pastries like many of them get them from the same sources offers wifi as a core display of show of local artist, offers communal tables and individual seating. all of those can be combined to keep out a new entrance because they could be combined as formula retail. this coffee shop formula is real. but this interpretation surprises us. i ask the zoning administrator are you saying that entirely unrelated parties can define as formula. if i open a store called alicia spade, could that count as a spade store? he said it could. all of this should give us a really good idea to defeat formula retail. pop uks ups with unrelated
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brands like the store radar and you can have the 11th needed to top up the requirement to form a conditional use hearing. that would be an absurd result. we do not think that prop g is absurd. we want a logical result based on the law. let's be clear here, the issue here is one of interpretation and judgment. it not a question of the letter of the law. the letter of the law supports a finding that jack spade is formula retail. today we ask you to exercise your judgment and ask you to find that kate spade and jack spade are just like kate spade saturday and kate spade and just like the hypothetical starbucks coffee and just like the hypothetical kate spade and alicia kate
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spade. one thing is clear, the voters made the enterprises go through a conditional use hearing that it would double it's stores. the ceo stated on an earnings call that jack spaed can be a hundred million dollars market. there are 94 kate spade stores. kate spade itself represents jack spade as being aware. this is formula. prop g targets precisely this business and demands this type of business go through a conditional use hearing. it's this bill has lost sight of that and that it should be on the findings which states in the beginning san francisco is a city of diverse and distinct
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neighborhoods. we merely ask that you read section with section 3 a and find the legal result. help us define the diversity by protecting the character of these commercial areas. find the spade as as a single conditional use area. >> to conclude, kate spade thinks the community support them. the vcma is asking that you revoke their permit in a you hear them as a conditional use hearing. >> thank you, we can hear from the permit holder now. >> honorable members of the
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board of appeals. here representing jack spade today. i was going talk but at least i don't have to. jack is not formula retail. what they have asked you to do is go above the law. there are ninety different proposals on how to change formula retail. that's basically if you want to do what the board of supervisors is do you doing down there. as you recall that last week the zoning administrator said the opposite code is 27.3. that is the project sponsors and the architects for determining the building process as of right whether it's subject to the conditional use project. jack
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spade currently has 10 domestic stores and has no leases or present intentions to lease any locations other than 3166, 16th street san francisco. the written affidavit from real estate construction arrived today. mr. sanchez received a copy of it. if it pleases president hwang i have level copies for you commissioners. >> tell me what it is again? >> it's the affidavit that states i phillip being sworn stated under penalty to perjury as follows. i over see the real estate for all jack's stores. it's part of my responsibility and writing of all stores. at this time there is 10 jack spade retail stores. at this time we have neither written nor signed any loi's. we have
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no -- apparent signed leases. at the completion of the store in san francisco, we'll be operating a total of 11 jack spade stores in the united states. sworn before in connecticut this morning we have the documents from the zoning administrator. >> did it say sworn under penalty of perjury? >> yes. >> i don't need it. you read it. >> so, all the arguments about the similar features that's out the window. you need 11 existing stores plus two features. that's the law. it's not two features, three features, four features, it's
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11, plus two. so we heard from the pell appellant, it's the kate spade stores. the kate spade new york stores should be added to the stores. kate spade new york has this sort of an appearance as you will see from the overhead. as you probably know there is a kate spade store in the west field center. there is a kate spade store on grand avenue close to main and the appellant would have you believe that a spade is a spade. the kate spade new york would move into 3166, 16th street. this is quite a stretch. 703.3, we talked about
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the letter of the law and we know the appellant has already told you we are within the letter of the law. the spirit of the law and i was involved in the formula retail discussion 10 years ago with the president working with supervisor tom, was to keep the neighborhood unique and that was based on visual factors. on all the visual factors, standardized array of merchandise where women's wear could be men's wear. that one is a stretch. standardized facade, total stretch, standardized decor which you are not going to find in these stores. this is what the build out will look like when it's completed. the merchandise in there is not remotely in resemblance unless you see it that way to kate spade. that's
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what the interior looks like. if you have been inside a kate spade store, it looks nothing like that. in terms of signage, trademark, jack and kate it's jack spade. so there is no common visual features between kate spade new york and jack and kate spade. they are trying to lump the two of them together and this holds absolutely no water whatsoever. the appellant realizes that. it's preposterous to argue that it's the same here. they were telling you last week that they share the same accounting systems and the common headquarters and we should take that into consideration, but in the spirit of 70.3. you don't
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see their accounting system, logistic systems. you see their storefront and you see the merchandise and employees and their attire and you see the trade marks. you do not see all of these back office type things. for the letter and spirit of 703.3. a spade is not a spade. the board of appeals is therefore respectfully requested to deny this appeal and reinstitute this building permit. i get telephone calls from the contractor, when can i retire the workers working on the site when they were pulled off of this suspension. you will happy new year from -- hear from the store manager and would appreciate the opportunity to get back to work. i would like to now in the remaining time pass this over to the vice-president from
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jack spade, melissa who has come out here from new york to speak to you. >> can i interrupt you because before she goes on i have a question on the spirit of the law. i think you stated something about having worked on, if you can go back, i don't think i heard about tom, tell me about that. >> from time to time we receive calls from supervisor am yann oh from 2004 when i was a president of the association. tom tells me there was a consideration on putting a ban on chain stores in the mission district and what was i thinking on that. we said let's do a theoretical. let's say there is somebody selling yack milk in among -- mongolia and
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they want to do that, we can't even discuss it. then we took it from there and said, okay is there some kind of magic number, is there some sort of magic geography and then the board of supervisors and the rest of the community had years and years of discussion before prop g came out and what came out of the whole thing, 703.3. the no. 11, the united states was given the geography and these visual features came out. >> did you participate in any part of the legislation other than the conversation with then supervisor? >> we had them come to our meetings and discuss with our membership these ideas, yes. >> okay. thank you. with that i will hand this over to melissa.
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>> good evening, everyone. thanks for hearing us tonight. my name is melissa and coleader of jack spade. we followed all necessary paperwork to affirm we are not a formal retail store. we did everything to ensure we did everything correctly. jack told us to seek from the zoning administrator and we learned we are not a formula retail. we were as of right. we've been transparent all along. those that are familiar with our plan know that we are completely different, that kate spade completely different from kate spade and store design our real estate selection criteria and all visual features apparent to our customers. it's these customer things that are
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relevant from 70.3. we never intended to misrepresent ourselves and helping restore the street and the beautiful facade of the mission. we choes this particular section of 16th street because we fit well with neighbors, and so many other great businesses that already exist on this street who you will hear from later. we are a neighborhood retailer through and through. no two other stores alike and our customers love us. there is nothing different about the product. we fell in love with the uniqueness. the fact is we get more of a quest from our san francisco customer than in i where else in the world asking us to open a store. in regards to our growth, we see a bright future for ourselves, but our
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growth comes in four ways. lastly and i can reconfirm to the written affidavit we submitted to you, we have no other stores planned. we ask that you allows us to rumor construction. we would like to hire our local construction workers and ask our manager to begin her new job in the store. thanks for your time today. >> question. could you elaborate a little bit on how you came to acquire this particular building. on how you particularly picked this neighborhood and how you acquired the lease -- on this building. >> i have lived in san
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francisco for a time and was familiar with the areas and fell in love with the mission just based on where we have the stores like venice beach and california and just fell in love with this facade of the building, the kind of food that's going on there and the gentrification going on. >> good evening, my name is marlene. i'm the store manager. i have a personal relationship with the mission. my first
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department in san francisco was three blocks from the store location. i love living there and while i now live elsewhere in the city i continue to shop at the restaurants and shop there. i also give my time in the community as a volunteer. for over two years i have been a mentor to a student on valencia. the area of the mission has gone through, valencia street looks and feels amazing. more people than ever seem toen jo i this section of the mission. 16 street tells another story and i'm happy to the contributing to the enhancement of the street. i love this system of it's why i was hired. not to run a big box store of disgruntled employees, but a store that actively participates. going through this process has been extremely
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beneficial to me. it illustrates the commitment and passion that drives this neighborhood and the city and further motivates me to be a contributor and active partner. i'm invested to ensure that this r e -- remains a unique place to live and work. thank you. >> we yield our remaining two minutes. >> mr. sanchez? >> good evening, scott sanchez planning department. the property at 16th street as noted at the hearing last week. the property is located within the valencia street district in the mission district and it's a
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tenant improvement at such property. it proposals to be retail. there is no other expansion or anything. it's just simply changing from one retail operator to another retail operator. the question before you raise the concern by the appellant whether or not this is a formula retail as defined in the planning code. for the sake of consistency, i will refer to section where it began. under planning section code 703, it says under the definition of the formula retail uses, a formula retail use is defined as a type of retail facility or establishment which has 11 or more other retail establishments located in the united states. in addition to the 11 establishments the business maintains two or more of the following features. a standardized array of
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merchandise. a standardized facade, a standardized d.c. -- decor and color scheme and trademark. a standardized array of merchandise shall be defined of 50 percent or more of in stock merchandise baring uniform marking of a word trade symbol or design or combination of words or phrases that identifies or distinguishes the source from others. these are the two that are relevant in this case. the appellant has a very compelling argument that is being made in terms of linking this as a formula retail use and i would acknowledge that this is a bit of a unique situation in terms
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of formula retail and we have seen them and categorized them in the past. i can't recall something this similar, but what is key here is that there is distinct trade marks in the two entities. kate spade is a different trademark than jack spade. i went to the u.s. patent and tradeoffs you can search trade marks and if you looked at spade, there are 229 separate trade marks under spade and various combinations of spaechld you can register jack spade multiple times and look into areas and get watches and bags and clothing etc. under the 229 or so spade trade marks, about 70 or so are related to kate spade and
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various variations of kate spade including kate spade saturday and then there are about 25 or so for jack spade. there are more than a hundred spade trademarks that are unrelated. when reviewing this and when determining this and i did have a conversation with the appellant the other day and discussed the meaning of the planning code and we did go through some hypotheticals. i agree with all the representation made to the board and i did express very clearly that we are not dealing with hypotheticals in the case and the facts that we have are that there are at this point 10 jack spade stores in the u.s.. there are kate spade stores, but with the jack and kate spade trademark there are 10.
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this would be their 11th establishment. subsequent to the establishment, if we would say that you have 11 or more other establishments, you are formula retail. but at this point, it's my opinion and reading the planning code and interpreting the planning code that they are not formula retail. i would note, there are other cases, but i failed to inform the board about other items that have been before us that i have made calls on. oscar was one that was before you. the board put forward the very well reason argument that it should begin atd least the question of the birth of the retail establishment. we have applied that and as noted have submitted an affidavit, after the board issued their decision i september