Kiini v. Victoria's Secret - bikinis.pdf
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Transcript of Kiini v. Victoria's Secret - bikinis.pdf
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-1- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
Mary A. Zachar, State Bar No. 79233 [email protected] Nicole Z. Davidson, State Bar No. 302783 [email protected] Jeffrey L. Davidson, State Bar No. 56843 [email protected] LAW OFFICES OF JEFFREY L. DAVIDSON 1801 Century Park East, 24th Floor Los Angeles, CA 90067 Telephone: 310-556-9639 Attorneys for Plaintiff, KIINI LLC
UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA
KIINI LLC, a New York LLC,
Plaintiff,
v. VICTORIA'S SECRET STORES BRAND MANAGEMENT, INC., a Delaware corporation; and DOES 1-10 inclusive.
Defendants.
Case No. 2:15-CV-8433 COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF BASED ON COPYRIGHT INFRINGEMENT, UNFAIR COMPETITION, TRADE DRESS INFRINGEMENT, AND UNLAWFUL BUSINESS PRACTICES DEMAND FOR JURY TRIAL
I. INTRODUCTORY STATEMENT.
1. Plaintiff KIINI LLC (“KIINI”) brings this action against Defendants
VICTORIA’S SECRET STORES BRAND MANAGEMENT, INC.
(“VICTORIA’S SECRET”) and Does 1-10 inclusive (collectively referred to as
“Defendants”) for damages and injunctive relief to redress copyright infringement,
trade dress infringement, and unfair competition.
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 1 of 36 Page ID #:1
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-2- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
2. Plaintiff KIINI is an independent swimwear brand that, through the
original, creative talents of its owner, Ipek Irgit ("Ms. Irgit"), successfully
launched an international swimwear line that has achieved a cult-like following
and is known for the original, distinct, copyright-protected design (the “KIINI
Design”) featured on each of KIINI’s bikinis. Defendant VICTORIA’S SECRET,
a large corporation known for creating mass-produced lingerie and other ready-to-
wear apparel, has recently reproduced, marketed and sold an infringing knock-off
copy of the KIINI bikini (the “VICTORIA’S SECRET Copy”), without KIINI’s
consent, in the pursuit of its own self-promotion and profit, and to KIINI’s unfair
harm and detriment. Below are images showing the virtually indistinguishable
appearance of the KIINI bikini and the VICTORIA’S SECRET Copy.
KIINI Original VICTORIA’S SECRET Copy
10/6/15, 5:39 PMThe Crochet-trim Teeny Triangle Top - Victoria's Secret Swim - Victoria's Secret
Page 1 of 4https://www.victoriassecret.com//swimwear/bikinis/the-crochet-trim-te…ctorias-secret-swim?ProductID=265161&CatalogueType=OLS&origin=search
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DescriptionThe new boho: crocheted bands in high-contrast colors restring a sexy swim
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3. In case there is any doubt regarding Defendants’ bad faith intent to copy
the KIINI Design, imitate the KIINI brand, cause consumer confusion and deceive
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 2 of 36 Page ID #:2
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-3- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
the public regarding source, sponsorship or affiliation, VICTORIA’S SECRET
describes its infringing copy on its website using the name “Teeny” (a sound-alike
name and strikingly similar to Plaintiff’s “KIINI” mark).
4. Defendants will continue their illegal conduct and will succeed in
exploiting at no cost to them the valuable investment KIINI has made in the KIINI
Design and its other intellectual property assets, as described in more detail below.
Accordingly, KIINI seeks preliminary and permanent injunctive relief against the
ongoing infringement of its legal rights, and damages, both actual and statutory,
for the violations of KIINI’s rights to date.
II. JURISDICTION AND VENUE.
5. This is a civil action seeking damages and injunctive relief for federal
claims including direct copyright infringement in violation of the Copyright Act of
1976, 17 U.S.C. §§ 101 et. seq. (the “Copyright Act”), unfair competition and
trade dress infringement in violation of the Trademark Act of 1946, 15 U.S.C. §§
1051, et. seq., as amended (the “Lanham Act”) (Section 43(a) of the Lanham Act),
and for state law claims including unlawful and deceptive acts and practices under
California Unfair Competition Law, California Business and Professions Code §§
17200 et. seq.
6. The jurisdiction of this Court over the federal claims is proper pursuant
to 28 U.S.C. §§ 1331 and 1338(a), insofar as they arise under the Copyright Act
and the Lanham Act. This Court has supplemental jurisdiction of Plaintiff's state
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 3 of 36 Page ID #:3
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-4- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
law claims pursuant to 28 U.S.C. § 1367(a), insofar as they are so related to
Plaintiff's other claims that they form part of the same case or controversy.
7. This Court has personal jurisdiction over Defendants because, on
information and belief, Defendants: (a) market, distribute, offer for sale, and sell
to persons within the Central District of California; (b) solicit and transact
business in the Central District of California; (c) operate multiple retail stores in
the Central District of California; (d) have employees and agents in the Central
District of California; (e) have committed tortious acts in the Central District of
California; (f) derive substantial revenue from or engages in a persistent course of
conduct in the Central District of California; and (g) a substantial part of the
events or omissions giving rise to the claims occurred, and a substantial part of the
property that is the subject of this action is located, in the Central District of
California. Moreover, this Court has personal jurisdiction over Defendants
because they committed intentional acts aimed at the Central District of California
(including, inter alia, use of the infringed design and offering infringing goods for
sale in stores located in the Central District of California and for sale on their
interactive VICTORIA’S SECRET Site), have otherwise purposefully availed
themselves of the privilege of doing business in the Central District of California,
and have made or established contacts within the Central District of California and
the State of California, sufficient to permit the exercise of personal jurisdiction.
8. Venue in the Federal District Court of the Central District of California
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 4 of 36 Page ID #:4
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-5- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
is proper pursuant to 28 U.S.C. §1391(b) (2), (c) and (d), and §1400(a) because
Defendants are subject to personal jurisdiction in the Central District of California
and a substantial part of the acts or omissions giving rise to Plaintiff's claims
occurred in the Central District of California.
III. THE PARTIES.
9. Plaintiff KIINI is a New York Limited Liability Company with its
business office located at 75 East 4th St. Suite 88, New York, New York, 10003,
and with its principal sales and marketing showroom, Summer Somewhere
Showroom, located in the Los Angeles Cooper Design Space at 860 S. Los
Angeles Street, Suite 824, Los, Angeles, California 90014. KIINI designs,
creates, markets, distributes, and sells beachwear, including swimsuits, which is
available for purchase on KIINI’s website, kiini.com (“KIINI Site”), and through
third-party retailers around the world, including in the Central District of
California.
10. Upon information and belief, Defendant VICTORIA’S SECRET is a
corporation organized and existing under the laws of the State of Delaware with
its principal place of business at Three Limited Parkway, Columbus, Ohio 43230.
Upon information and belief, Defendant VICTORIA’S SECRET manufactures,
markets, and sells a wide range of women’s intimate and other apparel, including
swimsuits, as well as beauty and personal care products and accessories across the
United States, including in the Central District of California.
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 5 of 36 Page ID #:5
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-6- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
11. Upon information and belief, Defendant VICTORIA’S SECRET
operates an interactive website, www.victoriassecret.com (the “VICTORIA’S
SECRET Site”), offering for sale infringing design products as more fully
described herein.
12. Upon information and belief, VICTORIA’S SECRET does business in
the Central District of California by operating multiple retail stores, and by
promoting, marketing, selling, and distributing various products, including swim
apparel and the infringing products as more fully described herein, through its
retail stores and the VICTORIA’S SECRET Site, as well as through other media.
13. Plaintiff is ignorant of the true names and capacities of the Defendants
sued herein as Does 1-10, inclusive, and sues said Defendants by such fictitious
names. Plaintiff will amend this Complaint to allege the true names and capacities
when they are ascertained. Plaintiff is informed and believes, and alleges theron,
that each fictitiously named Defendant is responsible in some matter for the
occurrences herein alleged, and that Plaintiff’s damages as herein alleged were
proximately caused by their conduct.
14. Each of the Defendants acted as an agent for each of the other
Defendants in doing the acts alleged, and each Defendant ratified and otherwise
adopted the acts and statements performed, made or carried out by the other
Defendants so as to make them directly and vicariously liable to Plaintiff for the
conduct complained of herein.
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 6 of 36 Page ID #:6
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-7- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
IV. FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS.
A. KIINI COPYRIGHT.
15. On or before early 2013, Ms. Irgit, as the original, individual sole
author, created the KIINI Design. The KIINI Design is an original work of
authorship embodying copyrightable subject matter, subject to the full protection
of the United States Copyright Act. The KIINI Design includes, without
limitation, the selection, coordination, compilation and arrangement of lines,
curves, loops, stitch, crochet, embroidery and elastic elements and their respective
shapes and patterns. The decorative patterned relief of the KIINI Design may be
incorporated onto the surface of a number of different styles and designs of
apparel and accessories.
16. On or about December 18, 2014, Ms. Irgit, as the author and claimant,
registered the copyright in her KIINI Design titled “Bathing Suit Art #1” issued by
the United States Copyright Office as Registration No. VA 1-943-361 (hereinafter
“Copyright Registration”). A complete copy of the Registration Certificate and
the Deposit material is attached hereto as EXHIBIT 1. An image of the deposit
material, which was made part of the Copyright Registration, is below.
///
///
///
///
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 7 of 36 Page ID #:7
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-8- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
Copyright Registration Deposit
17. Pursuant to a written, signed and duly executed Copyright Assignment,
attached hereto as EXHIBIT 2, Ms. Irgit assigned all of her rights in and to the
copyright in the KIINI Design, along with all accrued causes of action, past,
present and future, related to the copyright, to KIINI, and KIINI is the sole and
exclusive owner to all right, title, and interest in and to the copyright to the KIINI
Design, including the right to sue for past, present, and future infringements. The
Copyright Assignment complies with 17 U.S.C. §204 as a valid transfer of the
copyright, and the written assignment agreement effectively expressly transfers all
accrued causes of action and claims, past, present and future, and KIINI is the
proper party to bring this action.
B. KIINI REGISTERED TRADEMARKS.
18. On or about January 24, 2013, Ms. Irgit formed KIINI as its sole
member and KIINI commenced the process of developing, manufacturing,
marketing, and selling swimwear prominently featuring the copyright-protected
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 8 of 36 Page ID #:8
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-9- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
KIINI Design (“KIINI Goods”).
19. KIINI is the owner of and sells KIINI Goods using the United States
Patent and Trademark Office federally registered stylized “KIINI” trademark and
triangle design logo (U.S. Trademark Registration Nos. 4443631 and 4477816)
(collectively, the “KIINI Registered Marks”). Copies of the Certificates of
Trademark Registration are attached hereto as EXHIBIT 3. Below are images of
the KIINI Registered Marks.
10/8/15, 5:37 PM(1) KIINI
Page 1 of 1https://www.facebook.com/KiiniSwim/photos/pb.137576233113099.-2207520000.1444350132./215718628632192/?type=3&theater
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20. Pursuant to a written, signed, and duly executed Trademark Assignment,
attached hereto as EXHIBIT 4, Ms. Irgit validly transferred and assigned the
KIINI Registered Marks and registrations to Plaintiff, and Plaintiff is the rightful
owner and party to bring the claims set forth herein.
21. Since early 2013, Plaintiff has used the KIINI Registered Marks
exclusively and continuously in interstate commerce and abroad in connection
with the promotion, marketing, distribution and sale of KIINI Goods. KIINI sells
KIINI Goods directly to customers around the world at the KIINI Site, where
consumers, industry trendsetters and members of the trade, and the public at large,
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 9 of 36 Page ID #:9
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-10- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
are able to view the KIINI Design and make direct purchases of KIINI Goods.
KIINI also sells KIINI Goods on a wholesale basis to both online and brick and
mortar retailers located across the United States and abroad, including in the
Central District of California, which in turn distribute KIINI swimwear to
consumers through out the world. For example, KIINI Goods are carried by
retailers such as Barneys, Bergdorf Goodman, and Net-A-Porter. KIINI has a
showroom representative based in the iconic Cooper Building in the downtown
fashion district of Los Angeles, California, which represents KIINI on-site and at
trade and design shows across the United States, and various retailers place orders
through KIINI’s Los Angeles showroom representative.
22. KIINI Goods are sold at retail prices in the range of $165 for a bikini
top, and $120 for a bottom.
23. Each KIINI Good prominently displays Ms. Irgit's original copyrighted
artwork, the KIINI Design.
24. KIINI ships all customer and retail orders directly from its office in New
York, maintaining strict quality standards and controls, and KIINI inspects and
approves each swimsuit before it is hand-packaged using original KIINI
packaging, and delivered and distributed to a customer. KIINI’s efforts to control
and manage the display, reproduction, distribution and use of the KIINI Design
are controlled to ensure the usage complies with KIINI’s standards, the
expectation of its high-end and celebrity consumers, as well as KIINI’s
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 10 of 36 Page ID #:10
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-11- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
intellectual property rights, and to maximize the value of the KIINI Design and
KIINI’s goodwill. These measures are at a great cost to KIINI.
25. KIINI’s marketing and advertising includes depictions of the KIINI
Design on the KIINI Site, on social media platforms, including Facebook and
Instagram, and various other media, and KIINI receives an enormous amount of
unsolicited press, as described in more detail below.
C. KIINI TRADE DRESS.
26. The overall commercial image of the popular KIINI bikini, featuring the
KIINI Design, is distinctive, non-functional, and has come to have meaning as a
source identifier and constitutes federally protected trade dress (the “KIINI Trade
Dress”). Below are images showing KIINI’s use of the KIINI Trade Dress.
27. KIINI Trade Dress is comprised of the following elements: 1) a triangle
profile bikini; 2) a distinctive, rectangular crochet pattern that borders the edges of
the bikini; 3) the rectangular geometric pattern is doubled at the bottom edge of
the bikini top, and the top edge of the bikini bottom; 4) bright color blocking
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 11 of 36 Page ID #:11
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-12- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
resulting from a woven interlaced pattern of contrasting colored and textured
material, specificallly elastic and crochet yarn; and, 5) the bikini top’s upright
triangle profile and the bikini bottom’s upside down triangle profile, which mimic
the triangle design elements of the stylized KIINI Registered Marks.
28. Since its first use by KIINI in early 2013, KIINI has devoted substantial
efforts to promote KIINI Trade Dress on social media platforms, including
Instagram, and has used it exclusively and prominently in interstate commerce.
29. Since its first use in commerce, KIINI Trade Dress quickly grew in
popularity and achieved enormous, international success. The KIINI swimsuit has
become a much sought after bikini among the high-end beach and resort market
and celebrities, including Heidi Klum, Ellie Goulding, Cara Delevigne and Dree
Hemmingway, to name a few. KIINI has garnered overwhelming media attention
due to its eye-catching and distinct design, its unbeatable quality, and its
popularity among fashion leaders. For example: Marie Claire UK has described
the brand, stating, “Kiini: The A-List Swimwear Brand Everyone is Wearing”;
Vogue UK has exalted it as one of the “PERFECT PIECES: The singular styles
that don’t come close to anything else”; “L’ATTIDTUDE declared it “The Must-
Have Bikini”; the New York Post has featured KIINI, describing the bikini with
the headline, “The hottest suit of the summer”; People Magazine also has featured
a KIINI bikini calling it “The Hottest Bikini This Summer.” The KIINI bikini has
appeared on the covers of Turkish ELLE, BOA FORM, Surfing Magazine, and it
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 12 of 36 Page ID #:12
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-13- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
has been featured on the pages inside of various world renowned publications,
including Vogue, Women’s Wear Daily, Glamour, Women’s Health Magazine,
Oprah Magazine, Harper’s Bazaar, In Style, Conde Nast Traveller,
Cosmopolitan, Chicago Tribune. Below are images of various press.
10/8/15, 6:22 PMSurfing Magazine - Swimsuit issue Cover -2015 - KIINI
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Surfing Magazine - Swimsuit issue Cover -2015
March 28 2015
Chacha and Ro KIINI in Surfing Magazine Swimsuit issue
HOME NEWS ABOUT CONTACTSHOP
10/8/15, 6:18 PM(1) KIINI
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10/8/15, 6:10 PM(1) KIINI
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(See also, EXHIBIT 5, a compilation of press and images of celebrities wearing a
KIINI bikini.)
30. As a result of KIINI’s exclusive and extensive use and promotion of the
KIINI Trade Dress, the distinctive KIINI Trade Dress is recognizable to the public
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 13 of 36 Page ID #:13
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-14- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
as a symbol exclusively denoting KIINI and signaling the high quality of its
products. The purchasing public has come to associate the distinct KIINI Trade
Dress with KIINI and the KIINI Registered Trademarks, and KIINI Trade Dress
has achieved secondary meaning.
31. KIINI has built up and now owns valuable good will that is symbolized
by the KIINI Trade Dress.
32. The combination of elements comprising the KIINI Trade Dress is
nonfunctional, in that it is not essential to the use or purpose of KIINI swimwear,
it does not reduce the cost or improve the performance of the swimwear, and its
use by KIINI does not put competitors at any significant non-reputation-related
disadvantage. Indeed, competitors have available a multitude of alternative
swimwear designs they could use; the only reason to copy the KIINI Trade Dress
is to attempt to trade off its goodwill and draw sales away from KIINI. This is
exactly what Defendants have unfairly and unlawfully done here.
D. DEFENDANTS’ UNLAWFUL ACTS.
33. Upon information and belief, prior to the time Defendants committed the
unlawful acts alleged herein, Defendants had access to the KIINI Design, which
has been widely marketed and sold across the global marketplace, including the
internet and social media.
34. Upon information and belief, on or around the Summer of 2015, many
fashion seasons after Ms. Irgit published the copyrighted KIINI Design and after
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 14 of 36 Page ID #:14
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-15- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
KIINI acquired exclusive rights to the use of the KIINI Trade Dress and KIINI
Registered Marks, Defendants began creating, marketing, importing, advertising,
selling, and distributing the VICTORIA’S SECRET Copy, bearing a substantially
similar design copied from and nearly identical to the KIINI Design, and using the
KIINI Trade Dress as its own in a manner likely to cause, and which in fact has
caused, consumer confusion in the marketplace. VICTORIA’S SECRET calls the
VICTORIA’S SECRET Copy, “The Crochet-trim Teeny Triangle Top” and “The
Crochet-trim Cheeky,” and offers it for sale in eight colors (Product Numbers SR-
340-578 and SR-340-580). Below are images comparing the VICTORIA’S
SECRET Copy to a KIINI bikini:
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Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 15 of 36 Page ID #:15
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-16- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
KIINI Original
VICTORIA’S SECRET Copy
10/6/15, 5:39 PMThe Crochet-trim Teeny Triangle Top - Victoria's Secret Swim - Victoria's Secret
Page 1 of 4https://www.victoriassecret.com//swimwear/bikinis/the-crochet-trim-te…ctorias-secret-swim?ProductID=265161&CatalogueType=OLS&origin=search
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V I C T O R I A' S S E C R E T S W I M
NEW! The Crochet-trim TeenyTriangle Top
Color Violet Sugar
Size
Quantity
Choose Your Bottom
Pricing Details
$52.50 - $54.50 SR-340-578
neon
nectar
seafoam
glow
black
W/
black
W/
watercolor
stripe
pyramid
geo
Size & Fit
XS S M L
0
DescriptionThe new boho: crocheted bands in high-contrast colors restring a sexy swim
icon.
Removable padding for no show-through
Halter hooks at neck
Back hook closure
Adjustable straps
Crochet-wrapped elastic bands
In smooth matte fabric
Hand wash
Imported nylon/spandex
Click Image to Enlarge
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Bea - Top
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Color: Light pink with multi
KIINI swimsuits are a combination of handmade crochet, elastic andhigh tech fabrics. KIINIs are created without clasps, buttons or tiesfor the most secure fit and are perfect for active days at sand andsea.
*Handmade
Sizes: S,M,L
KIINI Sizing Chart
MATERIAL CONTENT:
Fabric: 75%Polyester, 25%Spandex
Yarn: 100% Cotton
Elastic
*We accept exchanges only in the US, and to a differentsize. Exchanges are subject to availability.
**No returns accepted!
***Orders that are designated for shipment to countries outside ofthe U.S. may be subject to local taxes, customs duties and feeslevied by the destination country ("Import Fees"). The recipient of
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10/8/15, 5:11 PMThe Crochet-trim Teeny Triangle Top - Victoria's Secret Swim - Victoria's Secret
Page 1 of 5https://www.victoriassecret.com//swimwear/bikinis/the-crochet-trim-te…ctorias-secret-swim?ProductID=265161&CatalogueType=OLS&origin=search
USD Ship To Search
VS / Swim / Bikinis / The Crochet-trim Teeny Triangle Top
Write the First Review
V I C T O R I A' S S E C R E T S W I M
NEW! The Crochet-trim TeenyTriangle Top
Color Violet Sugar
Size
Quantity
Choose Your Bottom
Pricing Details
$52.50 - $54.50 SR-340-578
neon
nectar
black
orchid
seafoam
glow
black
W/
black
W/
watercolor
stripe
pyramid
geo
Size & Fit
XS S M L
0
DescriptionThe new boho: crocheted bands in high-contrast colors restring a sexy swim
icon.
Removable padding for no show-through
Halter hooks at neck
Back hook closure
Adjustable straps
Crochet-wrapped elastic bands
In smooth matte fabric
Hand wash
Imported nylon/spandex
Click Image to Enlarge
0LikeLike Share on Facebook Pin on Pinterest
B R A S P A N T I E S S L E E P B E A U T Y L I N G E R I E S W I M S P O R T C L O T H I N G S A L E
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10/7/15, 7:28 PMThe Crochet-trim Teeny Triangle Top - Victoria's Secret Swim - Victoria's Secret
Page 1 of 4https://www.victoriassecret.com//swimwear/bikinis/the-crochet-trim-te…ctorias-secret-swim?ProductID=267126&CatalogueType=OLS&origin=search
USD Ship To Search
VS / Swim / Bikinis / The Crochet-trim Teeny Triangle Top
Write the First Review
V I C T O R I A' S S E C R E T S W I M
NEW! The Crochet-trim TeenyTriangle Top
Color Black Orchid
Size
Quantity
Choose Your Bottom
Pricing Details
$52.50 - $54.50 SR-340-578
black
W/
black
W/
neon
nectar
violet
sugar
seafoam
glow
watercolor
stripe
pyramid
geo
Size & Fit
XS S M L
0
DescriptionThe new boho: crocheted bands in high-contrast colors restring a sexy swim
icon.
Removable padding for no show-through
Halter hooks at neck
Back hook closure
Adjustable straps
Crochet-wrapped elastic bands
In smooth matte fabric
Hand wash
Imported nylon/spandex
Click Image to Enlarge
0LikeLike Share on Facebook Pin on Pinterest
B R A S P A N T I E S S L E E P B E A U T Y L I N G E R I E S W I M S P O R T C L O T H I N G S A L E
0
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 16 of 36 Page ID #:16
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-17- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
35. True and correct copies of printouts from the VICTORIA’S SECRET
Site showing images of the VICTORIA’S SECRET COPY are attached as
EXHIBIT 6.
36. Upon information and belief, Defendants are marketing, advertising,
selling, and distributing the VICTORIA’S SECRET Copy in interstate commerce
in the United States, including in California and the Central District, via the
VICTORIA’S SECRET Site and in VICTORIA’S SECRET’s retail stores.
37. The VICTORIA’S SECRET Copy is copied from and substantuially
similar to the copyright-protected KIINI Design.
38. The VICTORIA’S SECRET Copy is confusingly similar to the KIINI
Trade Dress, using confusingly similar color blocking, pattern, texture, marketing,
and overall look and feel.
39. The similarities between KIINI Goods and the VICTORIA’S SECRET
Copy are so striking that several discerning consumers have generated electronic
content posted on popular social media, referring to the VICTORIA’S SECRET
Copy infringing design, and stating: “totally kinii [sic] knock off,” “kiini copiers,”
and “Victoria’s secret knock off kiini.” (See EXHIBIT 7, images of Instagram
account, on information and belief, belonging to a Victoria’s Secret model,
Candice Swanepoel, including a photo of the VICTORIA’S SECRET model
wearing a VICTORIA’S SECRET Copy along with posted comments on the
photo.)
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 17 of 36 Page ID #:17
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-18- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
40. Indeed, the similarities between a KIINI swimsuit and the VICTORIA’S
SECRET Copy have resulted in actual consumer confusion. For example,
consumers have queried on photos of the VICTORIA’S SECRET Copy, stating:
“Is this a KIINI swimsuit or Victoria’s Secret?” Id.
41. VICTORIA’S SECRET clearly intends that the VICTORIA’S SECRET
Copy create consumer confusion as an imitation of the KIINI Design and Trade
Dress, referring to it as a “Teeny” (a sound-alike name and strikingly similar to
Plaintiff’s “KIINI” mark), and making the copy in the same color combinations as
KIINI. Defendants have ignored the consumer comments chiding it for stealing
the KIINI Design, and they continue to intentionally market and sell their
imitations.
42. On or about August 11, 2015, KIINI notified counsel for Defendants of
Defendants’ infringement of KIINI’s copyright and trademark rights. At the time
of filing this Complaint, Defendants willfully, deliberately, and intentionally
continue to sell the infringing VICTORIA’S SECRET Copy and injure Plaintiff
without authorization or justification.
43. Defendants’ infringement was accomplished with the intent to reap the
benefits of KIINI’s original design and trade dress, while free-riding on the good
will of the exclusive rights which inhere in the copyright protected work and the
protected trademarks and trade dress. Defendants’ conduct, unless preliminarily
and permantly enjoined, will continue unabated causing further irreparable harm
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 18 of 36 Page ID #:18
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-19- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
to Plaintiff.
FIRST CLAIM FOR RELIEF DIRECT COPYRIGHT INFRINGEMENT
(17 U.S.C. § 501)
44. Plaintiff incorporates by reference Paragraphs 1 through 43 above, as
through fully set forth herein.
45. The KIINI Design is an original work of authorship and constitutes
copyrightable subject matter under United States Copyright Act. The artwork
represented in the "Bathing Suit Art #1" is a tangible fixed medium of original
expression, which is further protected by U.S. Certificate of Registration, VA 1-
943-361, issued December 18, 2014, which constitutes prima facie evidence
pursuant to 17 U.S.C. § 410 of the validity of the copyright and the facts stated in
the Certificate, and is entitled to a presumption of validity.
46. At all relevant times, KIINI was authorized by and acted under the
permission of the rightful copyright owner, and is now the rightful owner of all of
the exclusive rights in and to the copyright to the KIINI Design, including the
rights to display, reproduction, prepare derivative works, and offer for sale and
distribution, and the right to sue for past, present, and future infringements of the
KIINI Design.
47. Ms. Irgit, Plaintiff's Assignor, has filed with the United States Office of
Copyright the required deposit, application and fees for the KIINI Design at issue
pursuant to 17 U.S.C. § 408, § 409, and the copyright registration set forth in
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 19 of 36 Page ID #:19
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-20- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
EXHIBIT 1 bearing the registration number set forth therein, and Plaintiff is the
sole owner of all rights, title and interest in and to the copyright entitled "Bathing
Suit Art #1" registered with the United States Office of Copyright pursuant to 17
U.S.C. § 411(a), and at all times Plaintiff has complied with all aspects of the
Copyright Act of 1976, and secured the exclusive rights and privileges in and to
the KIINI Design.
48. Since the publication of the KIINI Design in 2013, the KIINI Design has
been widely disseminated within the fashion swimwear industry. Subsequent to
the creation of the KIINI Design, and based on information and belief, Defendants
had access to the KIINI Design, and Defendants knowingly and willfully infringed
Plaintiff’s exclusive copyright by their conduct in using a substantially similar
reproduction of the KIINI Design on the VICTORIA’S SECRET Copy, and their
unlawful reproduction, display, distribution and sale of goods bearing the copied
design without KIINI’s license or authorization in violation of the Copyright Act.
49. Defendants have no license or any other form of permission to copy,
duplicate, or claim copyright ownership in the KIINI Design, or to sell or
distribute any portion of the KIINI Design, or any derivatives thereof, and all of
Defendants’ infringing acts were without the permission, license or consent of
Plaintiff or Plaintiff’s assignor, and taken in violation of Plaintiff’s exclusive
rights.
50. The actions and conduct of Defendants as described above infringe upon
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 20 of 36 Page ID #:20
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-21- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
the exclusive rights granted Plaintiff under 17 U.S.C. § 106 to display, reproduce,
create derivative works, and distribute and sell to the public the KIINI Design and
KIINI Products.
51. Such actions and conduct constitute direct copyright infringement under
17 U.S.C. § 501.
52. As a direct and proximate result of the direct copyright infringement
described above, KIINI has been damaged and will continue to be damaged by
Defendants’ infringing conduct, and Plaintiff is entitled to relief including, but not
limited to, actual damages, statutory damages, profits of the Defendants, statutory
costs and attorneys’ fees, and prejudgment interest. KIINI is further entitled to an
order impounding all unlawful copies and all products, articles, negatives,
patterns, designs, scans, and other means and media by which such copies have
been and may be reproduced, and to an order for the destruction of such materials.
53. KIINI has no adequate remedy at law for, and is being irreparably
harmed by, Defendants’ infringement of its copyright and exclusive rights under
copyright as set forth above, and such harm will continue unless the Court enjoins
Defendants. Pursuant to 17 U.S.C. § 503, KIINI is entitled to preliminary and
permanent injunctions prohibiting further infringement of the KIINI Design.
SECOND CLAIM FOR RELIEF UNFAIR COMPETITION
(15 U.S.C. § 1125(a))
54. Plaintiff incorporates by reference Paragraphs 1 through 53 above, as
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 21 of 36 Page ID #:21
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-22- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
through fully set forth herein.
55. The KIINI Design, KIINI Goods, KIINI Trade Dress, trade name and all
of the designs and products owned by Plaintiff are protected as to source under
Plaintiff's KIINI Registered Marks described herein.
56. Defendants’ creation, marketing, and sale of the VICTORIA’S SECRET
Copy and their confusingly similar use of the KIINI Trade Dress, KIINI Design,
KIINI marks and trade name has caused and is likely to cause confusion,
deception, and mistake by creating the false and misleading impression that
Defendants’ goods are manufactured or distributed by KIINI, or affiliated,
connected, or associated with KIINI, or have the sponsorship, endorsements, or
approval of KIINI.
57. Defendants have unlawfully used, and continue to use, depictions of
KIINI’s unique designs, marks, products and trade dress as its own designations in
commerce and in competition with KIINI. Defendants have boldly appropriated
Plaintiff's KIINI Design and KIINI Trade Dress and omitted Plaintiff's name
and/or replaced Plaintiff's name with "Victoria's Secret," a trade name of
Defendants, for the commercial misappropriation to falsely advertise and
represent that Defendants’ VICTORIA’S SECRET Site, its business, and its
infringing products are associated, approved, endorsed by or otherwise connected
with KIINI. An example of such is its creation, marketing, and sale of its
VICTORIA’S SECRET Copy, which is nearly identical to the KIINI Design and
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 22 of 36 Page ID #:22
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-23- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
Trade Dress, and which Defendants advertise using the word "Teeny" in the name,
a name which sounds similar to and like Plaintiff's "KIINI." This is a transparent,
intentional attempt to free-ride on Plaintiff’s tradename and mark, “KIINI,” and
the original and distinctive KIINI Design.
58. By reason of the foregoing, Defendants have created a false designation
of origin and a false or misleading representation of fact which is likely to cause
confusion, mistake, and deceive the public as to an affiliation, connection or
association between Defendants and KIINI, and is likely to cause confusion,
mistake, or deception as to the origin, sponsorship or approval by KIINI of
Defendants’ VICTORIA’S SECRET Site, its business and all of its products, all in
continual violation of 15 U.S.C. § 1125.
59. Plaintiff is informed and believes and based thereon alleges that
Defendants intended to and did confuse and mislead the public, and intended to
and did represent and create the false impression that Defendants’ VICTORIA’S
SECRET Site, their business and all of their products are endorsed, authorized,
originated, sponsored, approved by KIINI, or are licensed from or are otherwise
affiliated with KIINI, and will continue to do so unless enjoined by this Court.
60. In fact, there is no affiliation, endorsement or other relationship of any
kind between Plaintiff and Defendants. KIINI has not authorized, licensed, or
given permission to Defendants to copy, use, display, distribute, attribute or
otherwise affiliate in any commercial manner whatsoever the KIINI Design and
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 23 of 36 Page ID #:23
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-24- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
Trade Dress or other products, images, or marks of Plaintiff, and Defendants’
creation of a false impression concerning an association and affiliation between
Plaintiff and Defendants and their VICTORIA’S SECRET Site, business and all
of their products, and confusion as to a connection between Plaintiff and
Defendants, is unauthorized and unlawful.
61. Plaintiff is entitled to and requests an injunction restraining Defendants
and their respective officers, agents and employees, and all persons acting in
concert with them, from engaging in any further acts in violation of 15 U.S.C. §
1125.
62. Upon information and belief, Defendants’ conduct has been knowing,
deliberate, willful, intended to cause mistake or to deceive, and in disregard of
KIINI’s rights and to trade on KIINI's goodwill to its great and irreparable
damage.
63. The foregoing actions by Defendants constitute false designation of
origin, false misrepresentation, and unfair competition in violation of Section
43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
64. Defendants’ wrongful acts, as alleged above, have permitted or will
permit them to make substantial sales and profits on the strength of KIINI’s
nationwide and international marketing, advertising, sales and customer
recognition in an amount not presently known but to be proven at trial. Based on
the foregoing conduct, this is an exceptional case within the meaning of 15 U.S.C.
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 24 of 36 Page ID #:24
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-25- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
§ 1117(a).
65. As a direct and proximate result of Defendants’ violations of the
Lanham Act, 15 U.S.C. § 1125(a), KIINI is entitled to damages and to recover
from Defendants the profits realized by the unlawful activity, pursuant to 15
U.S.C. § 1117(a).
66. As a direct and proximate result of Defendants’ wrongful conduct,
KIINI has been and will be damaged in at least the following ways, in amounts as
yet unknown but to be proven at trial: (i) KIINI has been and will be deprived of
substantial fees from the sale of its designs, products and services; (ii) KIINI has
been and will be damaged in its ability to license the represented Design and trade
dress with the same degree of exclusivity, restrictions and price that otherwise
would have been obtained by KIINI; (iii) KIINI has suffered and will suffer a loss
of goodwill, in that the KIINI Design and KIINI Trade Dress are not now nor have
they ever been licensed for use by anyone outside of KIINI, and the current uses
by Defendants in offering unauthorized copies of them for sale at discounted
prices and at inferior and mass-produced quality infringes their exclusivity, value
and good will; and (iv) KIINI has been and will be deprived of the full value of its
federally-registered marks as commercial assets based on the infringement by
Defendants.
67. KIINI further is entitled to its attorney’s fees and full costs pursuant to
15 U.S.C. § 1117.
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 25 of 36 Page ID #:25
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-26- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
68. KIINI has no adequate remedy at law for, and is being irreparably
harmed by Defendants’ continuing violation of its rights as set forth above, and
such harm will continue unless Defendants are enjoined by this Court. Pursuant to
15 U.S.C. § 1116, KIINI is entitled to preliminary and permanent injunctions
prohibiting further violations of the Lanham Act.
THIRD CLAIM FOR RELIEF TRADE DRESS INFRINGEMENT
(15 U.S.C. § 1125(a))
69. Plaintiff incorporates by reference Paragraphs 1 through 68, above, as
though fully set forth herein.
70. Plaintiff has used KIINI Trade Dress in connection with KIINI Goods in
interstate commerce since 2013 as an identifier of the source. KIINI Trade Dress
is inherently distinctive, non-functional, and has acquired secondary meaning in
the marketplace.
71. The KIINI Trade Dress appears in connection with the KIINI Registered
Marks, forming an association in the consumer between the use of the trade dress
and the marks for which KIINI’s registrations offer protection under the Lanham
Act.
72. Subsequent to adoption of the KIINI Trade Dress by Plaintiff and
without Plaintiff’s consent, Defendants intentionally adopted and began prominent
use in commerce of a mark confusingly similar to KIINI Trade Dress. Defendants
affixed and portrayed their virtually identical infringing trade dress on the
Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 26 of 36 Page ID #:26
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-27- KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
VICTORIA’S SECRET Copy, which they have advertised, promoted, and sold on
the VICTORIA’S SECRET Site, in VICTORIA’S SECRET retail stores, and,
upon information and belief, in the VICTORIA’S SECRET mail catalogue.
73. Defendants’ virtually identical VICTORIA’S SECRET Copy is even
confusingly described by Defendants on the VICTORIA’S SECRET Site as a
“Teeny” (strikingly similar to Plaintiff’s “KIINI” mark).
74. Defendants’ infringing use of KIINI’s Trade Dress and Design has
confused and is likely to continue to confuse or cause mistake or to deceive the
consuming public into believing that Defendants’ unauthorized products are
authorized, sponsored, or approved by Plaintiff.
75. By reason of the foregoing, Defendants have created a false designation
of origin and a false or misleading representation of fact by using and adopting a
mark that is virtually identical to KIINI Trade Dress which is likely to cause
confusion, mistake, and deceive the public as to an affiliation, connection or
association between Defendants and KIINI, and is likely to cause confusion,
mistake, or deception as to the origin, sponsorship or approval by KIINI of
Defendants’ VICTORIA’S SECRET Site, business and products, all in continual
violation of 15 U.S.C. §1125.
76. Plaintiff is informed and believes and based thereon alleges that
Defendants intended to and did confuse and mislead the public, and intended to
and did represent and create the false impression that Defendants’ VICTORIA’S
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FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
SECRET Site, its business and all of its products are endorsed, authorized,
originated, sponsored, approved by KIINI, or are licensed from or are otherwise
affiliated with KIINI, and will continue to do so unless enjoined by this Court.
77. There is no affiliation, endorsement or other relationship of any kind
between Plaintiff and Defendants, or any of them. KIINI has not authorized,
licensed, or given permission to Defendants to copy, use, display, distribute,
attribute or otherwise affiliate in any commercial manner whatsoever the KIINI
Design or KIINI Trade Dress, and Defendants’ creation of a false impression
concerning an association and affiliation between Plaintiff and Defendants and
their VICTORIA’S SECRET Site, business and products, and confusion as to a
connection between Plaintiff and Defendants is unauthorized and unlawful.
78. Plaintiff is entitled to and requests an injunction restraining Defendants
and its respective officers, agents and employees, and all persons acting in concert
with them, from engaging in any further acts in violation of 15 U.S.C. § 1125,
including but not limited to the use of their virtually identical Trade Dress.
79. Upon information and belief, Defendants’ conduct has been knowing,
deliberate, willful, intended to cause mistake or to deceive, and in disregard of
KIINI’s rights.
80. The foregoing actions by Defendants constitute trade dress infringement,
false designation of origin, false misrepresentation, and unfair competition in
violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).
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FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
81. Defendants’ wrongful acts, as alleged above, have permitted or will
permit them to make substantial sales and profits on the strength of KIINI’s
nationwide and international marketing, advertising, sales and customer
recognition in an amount not presently known but to be proven at trial. Based on
the foregoing conduct, this is an exceptional case within the meaning of 15 U.S.C.
§ 1117(a).
82. As a direct and proximate result of Defendants’ violations of the
Lanham Act, 15 U.S.C. § 1125(a), KIINI is entitled to damages and to recover
from Defendants the profits realized by the unlawful activity, pursuant to 15
U.S.C. § 1117(a).
83. As a direct and proximate result of Defendants’ wrongful conduct,
KIINI has been and will be damaged in at least the following ways, in amounts as
yet unknown but to be proven at trial: (i) KIINI has suffered and will suffer a loss
of goodwill in that Defendants’ past and current unauthorized use of a virtually
identical Trade Dress in connection with its advertising, promoting, selling and
distributing of infringing apparel harms the exclusivity, value and good will of
Plaintiff’s designs, marks, trade dress and products; (ii) KIINI has been and will
be deprived of the full value of its federally-registered marks and common law
trade dress as commercial assets based on the infringement by Defendants.
84. KIINI further is entitled to its attorney’s fees and full costs pursuant to
15 U.S.C. § 1117.
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FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
85. KIINI has no adequate remedy at law for, and is being irreparably
harmed by, Defendants’ continuing violation of its rights as set forth above, and
such harm will continue unless Defendants are enjoined by this Court. Pursuant to
15 U.S.C. § 1116, KIINI is entitled to preliminary and permanent injunctions
prohibiting further violations of the Lanham Act.
FOURTH CLAIM FOR RELIEF UNFAIR COMPETITION AND UNFAIR BUSINESS PRACTICES
(Cal. Bus. & Prof. Code Section 17200)
86. Plaintiff incorporates by reference Paragraphs 1 through 85, above, as
through fully set forth herein.
87. Defendants have engaged in unlawful, unfair and fraudulent business
practices as defined in California Bus. & Prof. Code Section 17200 et seq., and
have utilized the unlawful and tortious means alleged herein to unjustly enrich
themselves by, among other things, misappropriating, using and exploiting,
without right, title, or authority, the copyright and the valuable good will and
exclusive KIINI Design and KIINI Trade Dress.
88. Defendants’ deceptive acts and practices were undertaken in trade or
commerce, are intended to, and are likely to, lead to confusion, mistake, or
deception among the public as to the source, origin, or approval of the infringing
goods offered for sale by Defendants, causing KIINI irreparable injury, and
violating Section 17200 in the following respects:
(a) Defendants’ acts of misappropriation, as alleged herein, violate KIINI’s
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FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
federally protected copyrights, trade dress, and trademarks, and consequently
constitute an unlawful business act or practice within the meaning of Section
17200; and
(b) Defendants’ unfair, misleading and deceptive use of Plaintiff’s
copyright, trademarks, and trade dress as alleged herein, has created confusion in
the public’s mind, creating the false appearance that they are legitimately
connected or affiliated with KIINI and the false appearance of KIINI’s
endorsement of Defendants’ business and products.
89. As a result of the acts described above, Defendants are misleading and
confusing consumers who are attempting to purchase legitimate and authentic
KIINI Goods. As a result, these consumers may be confused into believing that
Defendants’ infringing products are endorsed, affiliated with or sponsored by
KIINI.
90. The unlawful, unfair and fraudulent business practices alleged herein
present a continuing threat to members of the public in that Defendants, if
unpunished, are likely to continue to misappropriate the intellectual property
rights of Plaintiff for commercial profit and thus continue their practice of
unlawful, unfair and fraudulent business practices, and there is a likelihood of
repetition of the unfair and deceptive acts and practices described above.
91. As a direct and proximate result of Defendants’ deceptive acts and
practices in violation of Section 17200, KIINI has suffered and will continue to
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FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
suffer losses and irreparable injury to its business reputation and goodwill in
amounts not yet ascertained. KIINI’s remedy at law is not itself adequate to
compensate it for injury inflicted and threatened by Defendants.
92. As a result of the unfair and deceptive conduct described above, KIINI
has been damaged in an amount to be proven at trial.
PRAYER FOR RELIEF
NOW WHEREFORE, KIINI prays for judgment against Defendants as
follows:
1. On ALL CLAIMS FOR INJUNCTIVE RELIEF, that Defendants, their
officers, agents, servants, employees, confederates, and all persons acting for,
with, by, through or under them be permanently enjoined and restrained from:
(a) Using the KIINI Design and Trade Dress, including any trademark,
service mark, name, logo, design or source designation of any kind owned by
KIINI, or any reproduction, counterfeit, copy, or colorable imitation of the KIINI
Design and Trade Dress or marks in connection with the distribution, advertising,
offer for sale and/or sale of merchandise not the genuine products of KIINI;
(b) Passing off, inducing or enabling others to sell or pass off any infringing
products as and for KIINI Goods;
(c) Shipping, delivering, holding for sale, distributing, returning,
transferring or otherwise moving, storing, or disposing of in any manner products
falsely bearing the KIINI Design or Trade Dress, or any reproduction, counterfeit,
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FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
copy, or colorable imitation of the same; and
(d) Directly or indirectly infringing the KIINI Design and Trade Dress in
any manner throughout the world, including but not limited to reproducing,
adapting, and/or displaying KIINI Designs or Trade Dress by distributing,
importing, exporting, advertising, selling, and/or offering for sale, or causing
others to do so, any product, including without limitation, products bearing
designs or marks substantially similar to KIINI’s Design and Trade Dress;
(e) From committing any acts calculated to cause purchasers to believe that
Defendants’ products are those sold under the control or supervision of KIINI, or
sponsored or approved by, or produced under the control and supervision of
KIINI;
(f) From committing any acts calculated to cause the public consumers to
believe that Defendants’ products are those sold under the control or supervision
of KIINI, or sponsored or approved by, or connected with, or guaranteed by, or
produced under the control and supervision of KIINI;
(g) Using the KIINI Design and Trade Dress, including any trademark,
service mark, name, logo, design or source designation of any kind owned by
KIINI, or any reproduction, counterfeit, copy or colorable imitation of the KIINI
Design and Trade Dress in connection with Defendants’ sales of its products, its
domain names, websites, other online services or activities, or other goods or
services produced or provided by KIINI, or sponsored or authorized in any way
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FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
connected or related to KIINI; and
(h) Operating infringing websites;
(i) Causing any of the infringing products and designs and Defendants’
unlawful conduct as set for this in this Complaint from being distributed,
displayed, reproduced, or accessible to or through any Third-party Site, or offered
for sale in any manner through such Third-party Sites.
(j) From further infringing any of KIINI Design, Trade Dress, Marks,
Copyrights, or damaging KIINI’s goodwill;
(k) From otherwise unfairly competing with KIINI in any manner.
(l) That Defendants, within thirty (30) days after service of judgment with
notice of entry thereof upon it, be required to file with the Court and serve upon
KIINI a written report under oath setting forth in detail the manner in which
Defendants have complied with Paragraphs (a) through (k) above.
2. Additionally, on the FIRST CLAIM FOR RELIEF, for a finding that
Defendants have infringed Plaintiff’s copyrights in Plaintiff’s Designs, for an
award of Defendants’ profits and for damages in such amount as may be found;
alternatively for maximum statutory damages in the amount of up to $150,000
with respect to each copyrighted work infringed, or for such other amount as may
be proper pursuant to 17 U.S.C. § 504, and directing Defendants to provide an
accounting of all sales and profits derived from the infringements and that all
gains, profits, and advantages derived by Defendants from these acts of
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FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
infringements be deemed to be held in constructive trust for the benefit of
Plaintiff, and ordering Defendants to turn over all inventory and designs within
Defendants’ control; for an order preliminarily and permanently enjoining
Defendants, their officers, agents, employees, and all persons acting in concert
with them, from copying, producing, manufacturing, distributing, selling,
marketing, promoting, or otherwise exploiting Plaintiff’s Design or infringing the
represented Design and Goods pursuant to 17 U.S.C. § 502; for an order seizing
and destroying the infringing materials and source thereof; and for an award of
costs and attorneys’ fees pursuant to 17 U.S.C. § 505.
3. On the SECOND CLAIM FOR RELIEF, for an award of actual
monetary damages in an amount to be proven at trial, or for such other amount as
may be proper pursuant to 15 U.S.C. §§ 1125(a) and 1117; for an order
preliminarily and permanently enjoining Defendants, their officers, agents,
employees, and all persons acting in concert with them, from committing acts of
unfair competition; and for an award of costs and attorney’s fees pursuant to 15
U.S.C. §§ 1125(a) and 1117.
4. On the THIRD CLAIM FOR RELIEF, for an award of actual monetary
damages in an amount to be proven at trial, or for such other amount as may be
proper pursuant to 15 U.S.C. §§ 1125(a) and 1117; for an order preliminarily and
permanently enjoining Defendants, their officers, agents, employees, and all
persons acting in concert with them, from committing acts of unfair competition;
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FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT
and for an award of costs and attorney’s fees pursuant to 15 U.S.C. §§ 1125(a) and
1117.
5. On the FOURTH CLAIM FOR RELIEF for general and special
damages in an amount to be proven at trial, and for disgorgement by Defendants
of any and all profits or other consideration obtained by or earned by Defendants
as a proximate result of its unfair business practices in violation of California
Business and Professions Code 17200;
6. For prejudgment interest on the amount of the award to Plaintiff; and
7. For such other and further relief as the Court deems just and proper.
DEMAND FOR JURY TRIAL
Plaintiff hereby requests a jury trial on all issues raised in the Complaint.
DATED: October 28, 2015
LAW OFFICES OF JEFFREY L. DAVIDSON By: _/MAZ/____________________________
Mary A. Zachar, Esq. Attorney for Plaintiff, KIINI
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