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Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 1 of 36 Page ID #:1

1 Mary A. Zachar, State Bar No. 79233


maryzlaw@gmail.com
2 Nicole Z. Davidson, State Bar No. 302783
ndavidson@jldlaw.com
3 Jeffrey L. Davidson, State Bar No. 56843
jdavidson@jldlaw.com
4 LAW OFFICES OF JEFFREY L. DAVIDSON
1801 Century Park East, 24th Floor
5 Los Angeles, CA 90067
Telephone: 310-556-9639
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7 Attorneys for Plaintiff,
KIINI LLC
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UNITED STATES DISTRICT COURT

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FOR THE CENTRAL DISTRICT OF CALIFORNIA

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12 KIINI LLC, a New York LLC,
Plaintiff,

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v.

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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

VICTORIA'S SECRET STORES


16 BRAND MANAGEMENT, INC., a
Delaware corporation; and DOES 1-10 DEMAND FOR JURY TRIAL
17 inclusive.
Defendants.

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I.

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1.

INTRODUCTORY STATEMENT.

Plaintiff KIINI LLC (KIINI) brings this action against Defendants

VICTORIAS SECRET STORES BRAND MANAGEMENT, INC.


(VICTORIAS SECRET) and Does 1-10 inclusive (collectively referred to as

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Defendants) for damages and injunctive relief to redress copyright infringement,

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trade dress infringement, and unfair competition.

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-1 -

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 2 of 36 Page ID #:2

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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 KIINIs bikinis. Defendant VICTORIAS 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

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copy of the KIINI bikini (the VICTORIAS SECRET Copy), without KIINIs

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consent, in the pursuit of its own self-promotion and profit, and to KIINIs unfair

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harm and detriment. Below are images showing the virtually indistinguishable

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The Crochet-trim Teeny Triangle Top - Victoria's Secret Swim - Victoria's Secret

USD

Ship To

appearance of the KIINI bikini and the VICTORIAS SECRET Copy.


BRAS

KIINI Original

PA N T I E S

SLEEP

BEAUTY

LINGERIE

SWIM

SPORT

CLOTHING

VICTORIAS SECRET Copy

VS

Swim

Bikinis

The Crochet-trim Teeny Triangle Top

V I C T O R I A' S S E C R E T S W I M

NEW! The Crochet-trim Te


Triangle Top

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Write the First Review

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$52.50 - $54.50
Pricing Details

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Color Violet Sugar

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neon

seafoamblack

nectar glow

W/

black

watercolor
pyram

W/

stripe

geo

Size

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XS

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Quantity
0

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Click Image to Enlarge

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Like

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Description

Share on Facebook
Pin on Pinterest
The new boho: crocheted bands in high-contrast colors
icon.
Removable padding for no show-through
Halter hooks at neck

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Back hook closure


Adjustable straps

3.

Crochet-wrapped elastic bands

In case there is any doubt regarding Defendants bad faith intent to copy
In smooth matte fabric
Hand wash

Imported nylon/spandex

the KIINI Design, imitate the KIINI brand, cause consumer confusion
and deceive
Choose Your Bottom
-2 -

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 3 of 36 Page ID #:3

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the public regarding source, sponsorship or affiliation, VICTORIAS SECRET


describes its infringing copy on its website using the name Teeny (a sound-alike
name and strikingly similar to Plaintiffs 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

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ongoing infringement of its legal rights, and damages, both actual and statutory,
for the violations of KIINIs rights to date.

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II. JURISDICTION AND VENUE.


5.

This is a civil action seeking damages and injunctive relief for federal

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claims including direct copyright infringement in violation of the Copyright Act of

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1976, 17 U.S.C. 101 et. seq. (the Copyright Act), unfair competition and

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trade dress infringement in violation of the Trademark Act of 1946, 15 U.S.C.

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1051, et. seq., as amended (the Lanham Act) (Section 43(a) of the Lanham Act),

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and for state law claims including unlawful and deceptive acts and practices under

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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
-3 -

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 4 of 36 Page ID #:4

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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

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District of California; (e) have committed tortious acts in the Central District of

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California; (f) derive substantial revenue from or engages in a persistent course of

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conduct in the Central District of California; and (g) a substantial part of the

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events or omissions giving rise to the claims occurred, and a substantial part of the

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property that is the subject of this action is located, in the Central District of

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California. Moreover, this Court has personal jurisdiction over Defendants

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because they committed intentional acts aimed at the Central District of California

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(including, inter alia, use of the infringed design and offering infringing goods for

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sale in stores located in the Central District of California and for sale on their

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interactive VICTORIAS SECRET Site), have otherwise purposefully availed

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themselves of the privilege of doing business in the Central District of California,

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and have made or established contacts within the Central District of California and

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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


-4 -

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 5 of 36 Page ID #:5

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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.

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9.

THE PARTIES.

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

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Showroom, located in the Los Angeles Cooper Design Space at 860 S. Los

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Angeles Street, Suite 824, Los, Angeles, California 90014. KIINI designs,

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creates, markets, distributes, and sells beachwear, including swimsuits, which is

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available for purchase on KIINIs website, kiini.com (KIINI Site), and through

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third-party retailers around the world, including in the Central District of

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California.
10. Upon information and belief, Defendant VICTORIAS 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.

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Upon information and belief, Defendant VICTORIAS SECRET manufactures,

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markets, and sells a wide range of womens intimate and other apparel, including

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swimsuits, as well as beauty and personal care products and accessories across the
United States, including in the Central District of California.
-5 -

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 6 of 36 Page ID #:6

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11. Upon information and belief, Defendant VICTORIAS SECRET


operates an interactive website, www.victoriassecret.com (the VICTORIAS
SECRET Site), offering for sale infringing design products as more fully
described herein.
12. Upon information and belief, VICTORIAS 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

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apparel and the infringing products as more fully described herein, through its
retail stores and the VICTORIAS 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

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names. Plaintiff will amend this Complaint to allege the true names and capacities

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when they are ascertained. Plaintiff is informed and believes, and alleges theron,

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that each fictitiously named Defendant is responsible in some matter for the

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occurrences herein alleged, and that Plaintiffs damages as herein alleged were

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proximately caused by their conduct.

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14. Each of the Defendants acted as an agent for each of the other

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Defendants in doing the acts alleged, and each Defendant ratified and otherwise

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adopted the acts and statements performed, made or carried out by the other

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Defendants so as to make them directly and vicariously liable to Plaintiff for the
conduct complained of herein.
-6 -

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 7 of 36 Page ID #:7

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IV.

A. KIINI COPYRIGHT.
15.

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FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS.

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,

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curves, loops, stitch, crochet, embroidery and elastic elements and their respective

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shapes and patterns. The decorative patterned relief of the KIINI Design may be

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incorporated onto the surface of a number of different styles and designs of

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apparel and accessories.


16.

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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

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Copyright Registration). A complete copy of the Registration Certificate and

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the Deposit material is attached hereto as EXHIBIT 1. An image of the deposit

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material, which was made part of the Copyright Registration, is below.

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///

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///

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///
///
-7 -

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 8 of 36 Page ID #:8

Copyright Registration Deposit

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17.

Pursuant to a written, signed and duly executed Copyright Assignment,

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attached hereto as EXHIBIT 2, Ms. Irgit assigned all of her rights in and to the

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copyright in the KIINI Design, along with all accrued causes of action, past,

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present and future, related to the copyright, to KIINI, and KIINI is the sole and

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exclusive owner to all right, title, and interest in and to the copyright to the KIINI

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Design, including the right to sue for past, present, and future infringements. The

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Copyright Assignment complies with 17 U.S.C. 204 as a valid transfer of the

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copyright, and the written assignment agreement effectively expressly transfers all

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accrued causes of action and claims, past, present and future, and KIINI is the

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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
-8 -

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 9 of 36 Page ID #:9

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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.

(1) KIINI

10/8/15, 5:37 PM

Nicole

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https://www.facebook.com/KiiniSwim/photos/pb.137576233113099.-2207520000.1444350132./215718628632192/?type=3&theater

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Page 1 of 1

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

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with the promotion, marketing, distribution and sale of KIINI Goods. KIINI sells

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KIINI Goods directly to customers around the world at the KIINI Site, where

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consumers, industry trendsetters and members of the trade, and the public at large,
-9 -

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 10 of 36 Page ID #:10

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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

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fashion district of Los Angeles, California, which represents KIINI on-site and at

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trade and design shows across the United States, and various retailers place orders

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through KIINIs Los Angeles showroom representative.

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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

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packaging, and delivered and distributed to a customer. KIINIs efforts to control

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and manage the display, reproduction, distribution and use of the KIINI Design

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are controlled to ensure the usage complies with KIINIs standards, the
expectation of its high-end and celebrity consumers, as well as KIINIs
-10-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 11 of 36 Page ID #:11

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intellectual property rights, and to maximize the value of the KIINI Design and
KIINIs goodwill. These measures are at a great cost to KIINI.
25.

KIINIs 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

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KIINI Design, is distinctive, non-functional, and has come to have meaning as a

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source identifier and constitutes federally protected trade dress (the KIINI Trade

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Dress). Below are images showing KIINIs use of the KIINI Trade Dress.

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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
-11-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 12 of 36 Page ID #:12

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resulting from a woven interlaced pattern of contrasting colored and textured


material, specificallly elastic and crochet yarn; and, 5) the bikini tops upright
triangle profile and the bikini bottoms 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.

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29.

Since its first use in commerce, KIINI Trade Dress quickly grew in

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popularity and achieved enormous, international success. The KIINI swimsuit has

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become a much sought after bikini among the high-end beach and resort market

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and celebrities, including Heidi Klum, Ellie Goulding, Cara Delevigne and Dree

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Hemmingway, to name a few. KIINI has garnered overwhelming media attention

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due to its eye-catching and distinct design, its unbeatable quality, and its

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popularity among fashion leaders. For example: Marie Claire UK has described

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the brand, stating, Kiini: The A-List Swimwear Brand Everyone is Wearing;

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Vogue UK has exalted it as one of the PERFECT PIECES: The singular styles

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that dont come close to anything else; LATTIDTUDE declared it The Must-

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Have Bikini; the New York Post has featured KIINI, describing the bikini with

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the headline, The hottest suit of the summer; People Magazine also has featured

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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
-12-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 13 of 36 Page ID #:13


Surfing Magazine - Swimsuit issue Cover -2015 - KIINI

Log in or Create an accoun

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has been featured on the pages inside of various world renowned publications,
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NEWS
ABOUT
including Vogue, Womens Wear Daily, Glamour, Womens
Health
Magazine,

Oprah Magazine, Harpers Bazaar,Surfing


In Style,
Conde-Nast
Traveller,
Magazine
Swimsuit
issue Cover -2015

Cosmopolitan, Chicago Tribune. Below are images of various press.

March 28 2015

Chacha and Ro KIINI in Surfing Magazine Swimsuit issue

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(1) KIINI

10/8/15, 6:18 PM

Nicole
(1) KIINI

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KIINI

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Emily Ratajkowski in Bea KIINI in Cosmopolitanlargest
Mag.4G LTE network.

March 23 Edited

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KIINI
June 4, 2014
View on Instagram

Are you seeing a little blurry too? Yes, same here..#hot

Yep, pretty much flying off the shelves! #stylewatch


#Kiini #hottestbikiniofthesummer
#kimyemoveoverkiiniishere! @peoplemag
@everythingbutwater #kiiniswim #yazkiini

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http://kiini.com/blogs/news/17903696-surfing-magazine-swimsuit-issue-cover-2015

24 (See also, EXHIBIT 5, a compilation of press and images of celebrities wearing a


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KIINI bikini.)
https://www.facebook.com/KiiniSwim/photos/pb.137576233113099.-2207520000.1444350128./249451805258874/?type=3&theater

https://www.facebook.com/KiiniSwim/photos/pb.137576233113099.-2207520000.1444350114./373011699569550/?type=3&theater

30.

Page 1 of 1

Page 1 of 1

As a result of KIINIs exclusive and extensive use and promotion of the

KIINI Trade Dress, the distinctive KIINI Trade Dress is recognizable to the public
-13-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 14 of 36 Page ID #:14

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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,

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it does not reduce the cost or improve the performance of the swimwear, and its

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use by KIINI does not put competitors at any significant non-reputation-related

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disadvantage. Indeed, competitors have available a multitude of alternative

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swimwear designs they could use; the only reason to copy the KIINI Trade Dress

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is to attempt to trade off its goodwill and draw sales away from KIINI. This is

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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

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has been widely marketed and sold across the global marketplace, including the

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internet and social media.

26
27
28

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
-14-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 15 of 36 Page ID #:15

1
2
3
4
5
6
7

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 VICTORIAS 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. VICTORIAS SECRET calls the

VICTORIAS SECRET Copy, The Crochet-trim Teeny Triangle Top and The

10
11

Crochet-trim Cheeky, and offers it for sale in eight colors (Product Numbers SR-

12

340-578 and SR-340-580). Below are images comparing the VICTORIAS

13

SECRET Copy to a KIINI bikini:

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-15-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

The Crochet-trim Teeny Triangle Top - Victoria's Secret Swim - Victoria's Secret

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 16 of 36 Page ID #:16

The Crochet-trim Teeny Triangle Top - Victoria's Secret Swim - Victoria's Secret
Ship To

USD

BRAS

KIINI Original

PA N T I E S

SLEEP

BEAUTY

LINGERIE

SWIM

SPORT

CLOTHIN

VICTORIAS SECRET Copy

Bea - Top - KIINI

VS

Swim

Bikinis

The Crochet-trim Teeny Triangle Top

V I C T O R I A' S S E C R E T S W I M

NEW! The Crochet-trim T


Triangle Top

Ship To

USD

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$52.50 - $54.50

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Color Violet Sugar

BRAS

PA N T I E S

SLEEP

neon

BEAUTY

seafoamblack

nectar glow

black

watercolor
py

LIN
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W/ G stripe

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The new boho: crocheted bands in high-contrast col

icon.
Removable padding for no show-through
Halter hooks at neck
Back hook closure

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Adjustable straps

Bea - Top

Crochet-wrapped elastic bands


In smooth matte fabric

13
14
15

Hand wash

(1) KIINI

Nicole

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$165.00

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The Crochet-trim Teeny Triangle Top - Victoria's Secret Swim - Victoria's Secret

16
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Imported nylon/spandex

10/8/15, 5:23 PM

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PA N T I E S

Swim

SLEEP

Bikinis

BEAUTY

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SWIM

SPORT

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KIINI
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December 25, 2014

20

Alter hot Dimension von der KIINILAND


ChaCha KIINI is on fire on this babe Elyse Knowsly
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Color Black Orchid

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black

black

neon

W/

W/

nectar sugar

violet

seafoamwatercolor
py
glow

stripe

ge

Color: Light pink with multi

23

Size

XS

24

KIINI swimsuits are a combi


high tech fabrics. KIINIs are
for the most secure fit and a
sea.
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Friend Requests

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Caro Sanchez
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26

Click Image to Enlarge

27

Like

Description

Share on Facebook
Pin on Pinterest
The new boho: crocheted bands in high-contrast colors restri
icon.
Click
Image to Enlarge
Removable padding for no show-through

*Handmade

Halter hooks at neck

28

Back hook closure


Adjustable straps

Like

Crochet-wrapped elastic bands


Share
on
Facebook
Pin on Pinte
In smooth
matte
fabric
KIINI
COMPLAINT
Hand wash

-16-

FOR DAMAGES AND INJUNCTIVE


RELIEF:
Imported nylon/spandex
COPYRIGHT & TRADEMARK INFRINGEMENT

Sizes: S,M,L

Choose Your Bottom

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 17 of 36 Page ID #:17

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35.

True and correct copies of printouts from the VICTORIAS SECRET

Site showing images of the VICTORIAS SECRET COPY are attached as


EXHIBIT 6.
36.

Upon information and belief, Defendants are marketing, advertising,

selling, and distributing the VICTORIAS SECRET Copy in interstate commerce

in the United States, including in California and the Central District, via the

VICTORIAS SECRET Site and in VICTORIAS SECRETs retail stores.

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37.

The VICTORIAS SECRET Copy is copied from and substantuially

similar to the copyright-protected KIINI Design.


38.

The VICTORIAS 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 VICTORIAS SECRET

Copy are so striking that several discerning consumers have generated electronic

20

content posted on popular social media, referring to the VICTORIAS SECRET

21

Copy infringing design, and stating: totally kinii [sic] knock off, kiini copiers,

22
23

and Victorias secret knock off kiini. (See EXHIBIT 7, images of Instagram

24

account, on information and belief, belonging to a Victorias Secret model,

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Candice Swanepoel, including a photo of the VICTORIAS SECRET model

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27
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wearing a VICTORIAS SECRET Copy along with posted comments on the


photo.)
-17-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 18 of 36 Page ID #:18

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40.

Indeed, the similarities between a KIINI swimsuit and the VICTORIAS

SECRET Copy have resulted in actual consumer confusion. For example,


consumers have queried on photos of the VICTORIAS SECRET Copy, stating:
Is this a KIINI swimsuit or Victorias Secret? Id.
41.

VICTORIAS SECRET clearly intends that the VICTORIAS 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

10
11

Plaintiffs KIINI mark), and making the copy in the same color combinations as

12

KIINI. Defendants have ignored the consumer comments chiding it for stealing

13

the KIINI Design, and they continue to intentionally market and sell their

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15
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imitations.
42.

On or about August 11, 2015, KIINI notified counsel for Defendants of

Defendants infringement of KIINIs copyright and trademark rights. At the time


of filing this Complaint, Defendants willfully, deliberately, and intentionally

20

continue to sell the infringing VICTORIAS SECRET Copy and injure Plaintiff

21

without authorization or justification.

22
23

43.

Defendants infringement was accomplished with the intent to reap the

24

benefits of KIINIs original design and trade dress, while free-riding on the good

25

will of the exclusive rights which inhere in the copyright protected work and the

26
27
28

protected trademarks and trade dress. Defendants conduct, unless preliminarily


and permantly enjoined, will continue unabated causing further irreparable harm
-18-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 19 of 36 Page ID #:19

to Plaintiff.

FIRST CLAIM FOR RELIEF


DIRECT COPYRIGHT INFRINGEMENT
(17 U.S.C. 501)

3
4
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7
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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

12

expression, which is further protected by U.S. Certificate of Registration, VA 1-

13

943-361, issued December 18, 2014, which constitutes prima facie evidence

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15
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17
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19

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

20

the exclusive rights in and to the copyright to the KIINI Design, including the

21

rights to display, reproduction, prepare derivative works, and offer for sale and

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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
-19-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 20 of 36 Page ID #:20

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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

12

the creation of the KIINI Design, and based on information and belief, Defendants

13

had access to the KIINI Design, and Defendants knowingly and willfully infringed

14
15

Plaintiffs exclusive copyright by their conduct in using a substantially similar

16

reproduction of the KIINI Design on the VICTORIAS SECRET Copy, and their

17

unlawful reproduction, display, distribution and sale of goods bearing the copied

18
19
20
21
22
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design without KIINIs 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

24

Defendants infringing acts were without the permission, license or consent of

25

Plaintiff or Plaintiffs assignor, and taken in violation of Plaintiffs exclusive

26
27
28

rights.
50.

The actions and conduct of Defendants as described above infringe upon


-20-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 21 of 36 Page ID #:21

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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

12

limited to, actual damages, statutory damages, profits of the Defendants, statutory

13

costs and attorneys fees, and prejudgment interest. KIINI is further entitled to an

14
15

order impounding all unlawful copies and all products, articles, negatives,

16

patterns, designs, scans, and other means and media by which such copies have

17

been and may be reproduced, and to an order for the destruction of such materials.

18
19

53.

KIINI has no adequate remedy at law for, and is being irreparably

20

harmed by, Defendants infringement of its copyright and exclusive rights under

21

copyright as set forth above, and such harm will continue unless the Court enjoins

22
23
24

Defendants. Pursuant to 17 U.S.C. 503, KIINI is entitled to preliminary and


permanent injunctions prohibiting further infringement of the KIINI Design.

25

SECOND CLAIM FOR RELIEF


UNFAIR COMPETITION
(15 U.S.C. 1125(a))

26
27
28

54.

Plaintiff incorporates by reference Paragraphs 1 through 53 above, as


-21-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 22 of 36 Page ID #:22

1
2
3
4
5
6
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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 VICTORIAS 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,

10
11

deception, and mistake by creating the false and misleading impression that

12

Defendants goods are manufactured or distributed by KIINI, or affiliated,

13

connected, or associated with KIINI, or have the sponsorship, endorsements, or

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15
16
17
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19

approval of KIINI.
57.

Defendants have unlawfully used, and continue to use, depictions of

KIINIs unique designs, marks, products and trade dress as its own designations in
commerce and in competition with KIINI. Defendants have boldly appropriated

20

Plaintiff's KIINI Design and KIINI Trade Dress and omitted Plaintiff's name

21

and/or replaced Plaintiff's name with "Victoria's Secret," a trade name of

22
23

Defendants, for the commercial misappropriation to falsely advertise and

24

represent that Defendants VICTORIAS SECRET Site, its business, and its

25

infringing products are associated, approved, endorsed by or otherwise connected

26
27
28

with KIINI. An example of such is its creation, marketing, and sale of its
VICTORIAS SECRET Copy, which is nearly identical to the KIINI Design and
-22-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 23 of 36 Page ID #:23

1
2
3
4
5
6
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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 Plaintiffs 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

10
11

association between Defendants and KIINI, and is likely to cause confusion,

12

mistake, or deception as to the origin, sponsorship or approval by KIINI of

13

Defendants VICTORIAS SECRET Site, its business and all of its products, all in

14
15
16
17
18
19

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 VICTORIAS

20

SECRET Site, their business and all of their products are endorsed, authorized,

21

originated, sponsored, approved by KIINI, or are licensed from or are otherwise

22
23
24
25
26
27
28

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
-23-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 24 of 36 Page ID #:24

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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 VICTORIAS 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

16

KIINIs rights and to trade on KIINI's goodwill to its great and irreparable

17

damage.

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19

63.

The foregoing actions by Defendants constitute false designation of

20

origin, false misrepresentation, and unfair competition in violation of Section

21

43(a) of the Lanham Act, 15 U.S.C. 1125(a).

22
23

64.

Defendants wrongful acts, as alleged above, have permitted or will

24

permit them to make substantial sales and profits on the strength of KIINIs

25

nationwide and international marketing, advertising, sales and customer

26
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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.
-24-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 25 of 36 Page ID #:25

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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

12

substantial fees from the sale of its designs, products and services; (ii) KIINI has

13

been and will be damaged in its ability to license the represented Design and trade

14
15

dress with the same degree of exclusivity, restrictions and price that otherwise

16

would have been obtained by KIINI; (iii) KIINI has suffered and will suffer a loss

17

of goodwill, in that the KIINI Design and KIINI Trade Dress are not now nor have

18
19

they ever been licensed for use by anyone outside of KIINI, and the current uses

20

by Defendants in offering unauthorized copies of them for sale at discounted

21

prices and at inferior and mass-produced quality infringes their exclusivity, value

22
23

and good will; and (iv) KIINI has been and will be deprived of the full value of its

24

federally-registered marks as commercial assets based on the infringement by

25

Defendants.

26
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67.

KIINI further is entitled to its attorneys fees and full costs pursuant to

15 U.S.C. 1117.
-25-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 26 of 36 Page ID #:26

1
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3
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5
6
7

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))

8
9
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15

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

16

is inherently distinctive, non-functional, and has acquired secondary meaning in

17

the marketplace.

18
19

71.

The KIINI Trade Dress appears in connection with the KIINI Registered

20

Marks, forming an association in the consumer between the use of the trade dress

21

and the marks for which KIINIs registrations offer protection under the Lanham

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25
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27
28

Act.
72.

Subsequent to adoption of the KIINI Trade Dress by Plaintiff and

without Plaintiffs 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
-26-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 27 of 36 Page ID #:27

1
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VICTORIAS SECRET Copy, which they have advertised, promoted, and sold on
the VICTORIAS SECRET Site, in VICTORIAS SECRET retail stores, and,
upon information and belief, in the VICTORIAS SECRET mail catalogue.
73.

Defendants virtually identical VICTORIAS SECRET Copy is even

confusingly described by Defendants on the VICTORIAS SECRET Site as a


Teeny (strikingly similar to Plaintiffs KIINI mark).
74.

Defendants infringing use of KIINIs Trade Dress and Design has

confused and is likely to continue to confuse or cause mistake or to deceive the

12

consuming public into believing that Defendants unauthorized products are

13

authorized, sponsored, or approved by Plaintiff.

14
15

75.

By reason of the foregoing, Defendants have created a false designation

16

of origin and a false or misleading representation of fact by using and adopting a

17

mark that is virtually identical to KIINI Trade Dress which is likely to cause

18
19

confusion, mistake, and deceive the public as to an affiliation, connection or

20

association between Defendants and KIINI, and is likely to cause confusion,

21

mistake, or deception as to the origin, sponsorship or approval by KIINI of

22
23
24
25
26
27
28

Defendants VICTORIAS 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 VICTORIAS
-27-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 28 of 36 Page ID #:28

1
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3
4
5
6
7

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

10
11

Design or KIINI Trade Dress, and Defendants creation of a false impression

12

concerning an association and affiliation between Plaintiff and Defendants and

13

their VICTORIAS SECRET Site, business and products, and confusion as to a

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17
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19
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21
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23
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25
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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


KIINIs 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).
-28-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 29 of 36 Page ID #:29

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81.

Defendants wrongful acts, as alleged above, have permitted or will

permit them to make substantial sales and profits on the strength of KIINIs
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.

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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

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from Defendants the profits realized by the unlawful activity, pursuant to 15

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U.S.C. 1117(a).

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83.

As a direct and proximate result of Defendants wrongful conduct,

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KIINI has been and will be damaged in at least the following ways, in amounts as

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yet unknown but to be proven at trial: (i) KIINI has suffered and will suffer a loss

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of goodwill in that Defendants past and current unauthorized use of a virtually

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identical Trade Dress in connection with its advertising, promoting, selling and

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distributing of infringing apparel harms the exclusivity, value and good will of

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Plaintiffs designs, marks, trade dress and products; (ii) KIINI has been and will

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be deprived of the full value of its federally-registered marks and common law

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trade dress as commercial assets based on the infringement by Defendants.

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84.

KIINI further is entitled to its attorneys fees and full costs pursuant to

15 U.S.C. 1117.
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KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 30 of 36 Page ID #:30

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85.

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)

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KIINI has no adequate remedy at law for, and is being irreparably

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

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have utilized the unlawful and tortious means alleged herein to unjustly enrich

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themselves by, among other things, misappropriating, using and exploiting,

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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

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deception among the public as to the source, origin, or approval of the infringing

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goods offered for sale by Defendants, causing KIINI irreparable injury, and

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violating Section 17200 in the following respects:


(a)

Defendants acts of misappropriation, as alleged herein, violate KIINIs


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KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 31 of 36 Page ID #:31

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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 Plaintiffs

copyright, trademarks, and trade dress as alleged herein, has created confusion in

the publics mind, creating the false appearance that they are legitimately

connected or affiliated with KIINI and the false appearance of KIINIs

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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

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Defendants infringing products are endorsed, affiliated with or sponsored by

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KIINI.

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90.

The unlawful, unfair and fraudulent business practices alleged herein

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present a continuing threat to members of the public in that Defendants, if

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unpunished, are likely to continue to misappropriate the intellectual property

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rights of Plaintiff for commercial profit and thus continue their practice of

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unlawful, unfair and fraudulent business practices, and there is a likelihood of

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repetition of the unfair and deceptive acts and practices described above.

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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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KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 32 of 36 Page ID #:32

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suffer losses and irreparable injury to its business reputation and goodwill in
amounts not yet ascertained. KIINIs remedy at law is not itself adequate to
compensate it for injury inflicted and threatened by Defendants.
92.

has been damaged in an amount to be proven at trial.


PRAYER FOR RELIEF

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As a result of the unfair and deceptive conduct described above, KIINI

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

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Design and Trade Dress or marks in connection with the distribution, advertising,

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offer for sale and/or sale of merchandise not the genuine products of KIINI;

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(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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KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 33 of 36 Page ID #:33

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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 KIINIs Design and Trade Dress;

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(e)

From committing any acts calculated to cause purchasers to believe that

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Defendants products are those sold under the control or supervision of KIINI, or

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sponsored or approved by, or produced under the control and supervision of

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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

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KIINI, or any reproduction, counterfeit, copy or colorable imitation of the KIINI

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Design and Trade Dress in connection with Defendants sales of its products, its

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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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KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 34 of 36 Page ID #:34

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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 KIINIs goodwill;

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(k)

From otherwise unfairly competing with KIINI in any manner.

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(l)

That Defendants, within thirty (30) days after service of judgment with

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notice of entry thereof upon it, be required to file with the Court and serve upon

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KIINI a written report under oath setting forth in detail the manner in which

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Defendants have complied with Paragraphs (a) through (k) above.

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2.

Additionally, on the FIRST CLAIM FOR RELIEF, for a finding that

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Defendants have infringed Plaintiffs copyrights in Plaintiffs Designs, for an

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award of Defendants profits and for damages in such amount as may be found;

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alternatively for maximum statutory damages in the amount of up to $150,000

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with respect to each copyrighted work infringed, or for such other amount as may

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be proper pursuant to 17 U.S.C. 504, and directing Defendants to provide an

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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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KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 35 of 36 Page ID #:35

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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 Plaintiffs Design or infringing the

represented Design and Goods pursuant to 17 U.S.C. 502; for an order seizing

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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

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may be proper pursuant to 15 U.S.C. 1125(a) and 1117; for an order

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preliminarily and permanently enjoining Defendants, their officers, agents,

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employees, and all persons acting in concert with them, from committing acts of

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unfair competition; and for an award of costs and attorneys fees pursuant to 15

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U.S.C. 1125(a) and 1117.

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4.

On the THIRD CLAIM FOR RELIEF, for an award of actual monetary

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damages in an amount to be proven at trial, or for such other amount as may be

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proper pursuant to 15 U.S.C. 1125(a) and 1117; for an order preliminarily and

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permanently enjoining Defendants, their officers, agents, employees, and all


persons acting in concert with them, from committing acts of unfair competition;
-35-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

Case 2:15-cv-08433-FMO-GJS Document 1 Filed 10/28/15 Page 36 of 36 Page ID #:36

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and for an award of costs and attorneys 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;

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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.

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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

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By: _/MAZ/____________________________
Mary A. Zachar, Esq.
Attorney for Plaintiff, KIINI

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-36-

KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT

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