By Jim Schutze
By Rachel Watts
By Lauren Drewes Daniels
By Anna Merlan
By Lee Escobedo
The beauty of big-box chain stores such as Target and Wal-Mart, if there is any beauty to speak of, is that customers can at least knock out just about everything on the shopping list at once. Kitty litter, cleaning supplies, condoms. But nobody wants to be the creep loitering in the "family planning" (as in, planning on avoiding anything resembling a family) aisle. And then there's the look from the check-out lady—as if she thought you were planning to use the Tidy Cat, Trojans and Brillo pads all at once. "Big weekend coming up?"
Better to head to a place where buying a pack of ribbed-for-her-pleasures is not only condoned but encouraged. Where the weirdos are the ones not buying a year's supply of the things most people keep stashed in bottom drawers of bedside tables. A place like Condom Sense, the Dallas-based sex-shop chain founded by mom-and-son entrepreneurial duo Marcia and Steven Kahn.
But just because a store's got a "Condom Sense" sign out front doesn't mean it's Kahn-owned and -operated. According to the Kahns, four local "Condom Sense" stores are renegade operations, open without their permission. In a lawsuit set to go to trial this January, the Kahns claim that a former business partner, Jamal Al-Shalabi, has appropriated the Condom Sense name and logo for his own use, opening unauthorized Condom Sense stores and sullying the good Condom Sense name by selling hookahs and bongs alongside the condoms and vibrators. Trademark infringement litigation has never been so sexy.
In court documents, the Kahns assert that Al-Shalabi is "intentionally engaging in trademark infringement and unfair competition by copying the 'Condom Sense' trademark without authorization." But in 1997, the Kahns did give Al-Shalabi permission to open a Condom Sense store at 3609 Greenville Ave. It closed several months later. Then, Al-Shalabi re-opened another store as Condom Sense and started selling condoms as well as smoking accessories. Jim Henry, the lawyer representing Al-Shalabi, says his client was permitted to open more stores.
"My clients believe they have the right to use the name" under the original 1997 agreement signed with Steve and Marcia Kahn, Henry says. "The terms of the agreement did not limit the use [of the Condom Sense name] to that one location." In addition, says Henry, "There was no limitation on what merchandise would be sold in the stores." The Kahns disagree.
"[Al-Shalabi's] stores don't represent what we do," says Marcia Kahn, who opened the first Condom Sense store in Dallas in the early '90s, riding the safe-sex wave. Monica Luebker, the Kahns' attorney, says that any Condom Sense location selling tobacco-related, and some would say drug-related, products damages the store's reputation.
According to Luebker, the Kahns realized there were other Condom Sense stores when customers came in asking about bongs and trying to return products not sold at the Kahns' stores. Marcia Kahn says it's hard telling customers that just because a store says Condom Sense, it's not actually related to their business, and that they can't provide a refund or exchange.
"[Customers] get irate," Kahn says. "It causes an awful lot of problems."
The distinction between a sex shop and a sex shop with smoking accessories may seem like a small one to some—after all, the classic combo is sex, drugs and rock 'n' roll. So what if Al-Shalabi sells bongs and salvia divinorum, the legal psychoactive herb that has a supposedly hallucinogenic effect on some people?
"It's not focused toward relationships," Luebker says. Al-Shalabi's stores are "really focused toward glass pipes, bongs, hookahs" as well as "rolling papers and marijuana leaf signs," and the Kahns' stores are part of "a concept that is meant for the greater good. We don't want to be associated with what is commonly called a head shop," she says.
As of now, Al-Shalabi is still running four Condom Sense stores, at 2642 Elm St. in Deep Ellum, at 3615 Greenville Ave., in North Dallas at 19009 Preston Road and in Oak Lawn at 4038 Cedar Springs Road. Marcia and Steve Kahn's stores are at 5409 Greenville Ave., 2510 Electronic Lane in West Dallas, 4275 Belt Line Road in Addison and in Arlington at 1077 N. Collins Road.
Though the Kahns are suing for an as-yet undetermined amount in damages, in court documents they're also requesting Al-Shalabi cease using the Condom Sense name and relinquish the variety of Web site addresses registered to him, CondomSenseUSA.com and CondomSenseDallas.com, among them. Enter "Condom Sense" in Google, and Al-Shalabi's sites come up first. The original CondomSense.com isn't even in the first 10 hits. Ultimately, Luebker says, the Kahns believe Al-Shalabi can sell whatever he wants. Just not under their name.
Luebker suggests Al-Shalabi "make up a name. Just don't use ours." Then, she pauses, thinking of an example. "Condoms and Whatever." Regardless of the outcome of the case, which likely won't be decided for months, both sides have learned a valuable lesson: When it comes to sexytime, whether for business or pleasure, it's always best to use protection. Otherwise, you'll make a big mess.