## Facts

- A Swiss luxury watchmaker entered a worldwide print-ads endorsement agreement with an actress’s loan-out company for $3 million to use the actress’s image to market a watch collection.
- The agreement contained an exclusivity clause requiring the actress, during the contract term, not to wear publicly any watches other than the watchmaker’s and not to endorse or advertise watches or jewelry for others.
- The agreement included a five-day notice-and-cure provision, except where the breach “could not be cured.”
- The actress signed a rider agreeing to be bound by specified provisions, including exclusivity obligations.
- During the term, the actress agreed to be photographed wearing a jewelry item associated with a brand that also made watches; after notice, the brand removed a trade-show poster within the cure period.
- Later, the actress wore a competitor’s watch to a public press conference; photographs were published online and allegedly used by a competitor.
- The watchmaker sued for breach of contract and fraud and sought summary judgment on breach liability; defendants sought summary judgment dismissing all claims.

## Issues

1. Whether the actress’s public wearing of a competitor’s watch breached the exclusivity clause and, if so, whether the breach was curable under the contract’s cure provision.
2. Whether the actress could be held personally liable for breach in addition to her loan-out company.
3. Whether the fraud claims stated an independent tort or were impermissibly duplicative of the contract claim.
4. Whether summary judgment could determine damages, or whether damages required factfinding.

## Decision

- The court granted summary judgment for the watchmaker on liability for breach based on the competitor-watch incident.
- The court held that the competitor-watch breach was incurable because the photographs had entered public circulation and were exploited in a manner that could not be undone within a cure period.
- The court treated the earlier jewelry-poster episode as cured within the contractual cure window and not a separate basis for relief.
- The court held the actress could be personally liable, along with her loan-out company, given the rider and the nature of the obligations undertaken.
- The court denied summary judgment on damages because factual disputes remained regarding the amount and measure of loss.
- The court granted defendants partial summary judgment dismissing fraud theories that merely repackaged an alleged failure to perform contractual promises, while allowing the contract claim to proceed.

## Legal Principles

- A contractual notice-and-cure clause may bar suit for a curable breach during the cure period, but does not protect conduct that the contract treats as incapable of cure.
- Breaches involving irreversible public dissemination and competitive use of an endorser’s image while displaying a competitor’s product may be deemed incurable as a matter of law.
- In exclusivity endorsement agreements, a promise not to wear competitors’ products publicly can be a material term supporting summary judgment on breach liability when violated.
- A performer may be personally liable alongside a loan-out company when the performer signs a rider assuming specified contractual obligations and the alleged breach stems from the performer’s own conduct.
- Under New York law, fraud claims are dismissed as duplicative where they rest only on alleged misrepresentations of intent to perform contractual duties, rather than a distinct duty or collateral misrepresentation.
- Damages for breach may require trial-level factfinding when the record does not establish the amount or appropriate measure as a matter of law.

## Conclusion

The court enforced a celebrity watch-endorsement exclusivity clause by holding that public wearing of a competitor’s watch at a press event, followed by widespread publication and competitive use of the images, constituted an incurable and material breach, while limiting the case to contract damages by dismissing duplicative fraud theories and reserving damages for further proceedings.


Raymond Weil, S.A. v. Theron, 585 F. Supp. 2d 473 (S.D.N.Y. 2008)