Professional Documents
Culture Documents
10
11
12 KIINI LLC, a New York LLC,
Plaintiff,
13
14
v.
15
18
19
20
I.
21
22
23
24
25
1.
INTRODUCTORY STATEMENT.
26
27
28
-1 -
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
6
7
2.
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
10
11
copy of the KIINI bikini (the VICTORIAS SECRET Copy), without KIINIs
12
consent, in the pursuit of its own self-promotion and profit, and to KIINIs unfair
13
harm and detriment. Below are images showing the virtually indistinguishable
14
15
16
The Crochet-trim Teeny Triangle Top - Victoria's Secret Swim - Victoria's Secret
USD
Ship To
KIINI Original
PA N T I E S
SLEEP
BEAUTY
LINGERIE
SWIM
SPORT
CLOTHING
VS
Swim
Bikinis
V I C T O R I A' S S E C R E T S W I M
17
18
$52.50 - $54.50
Pricing Details
19
20
neon
seafoamblack
nectar glow
W/
black
watercolor
pyram
W/
stripe
geo
Size
21
XS
22
Quantity
0
23
24
25
Like
28
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
26
27
3.
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
1
2
3
4
5
6
7
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
10
11
12
ongoing infringement of its legal rights, and damages, both actual and statutory,
for the violations of KIINIs rights to date.
13
14
15
This is a civil action seeking damages and injunctive relief for federal
16
17
1976, 17 U.S.C. 101 et. seq. (the Copyright Act), unfair competition and
18
19
20
1051, et. seq., as amended (the Lanham Act) (Section 43(a) of the Lanham Act),
21
and for state law claims including unlawful and deceptive acts and practices under
22
23
24
25
26
27
28
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
1
2
3
4
5
6
7
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
10
11
District of California; (e) have committed tortious acts in the Central District of
12
13
conduct in the Central District of California; and (g) a substantial part of the
14
15
events or omissions giving rise to the claims occurred, and a substantial part of the
16
property that is the subject of this action is located, in the Central District of
17
18
19
because they committed intentional acts aimed at the Central District of California
20
(including, inter alia, use of the infringed design and offering infringing goods for
21
sale in stores located in the Central District of California and for sale on their
22
23
24
25
and have made or established contacts within the Central District of California and
26
27
28
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
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.
7
8
9
10
11
9.
THE PARTIES.
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
12
Showroom, located in the Los Angeles Cooper Design Space at 860 S. Los
13
Angeles Street, Suite 824, Los, Angeles, California 90014. KIINI designs,
14
15
16
available for purchase on KIINIs website, kiini.com (KIINI Site), and through
17
18
19
20
21
22
23
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.
24
25
markets, and sells a wide range of womens intimate and other apparel, including
26
27
28
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
1
2
3
4
5
6
7
10
11
12
13
14
15
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
16
names. Plaintiff will amend this Complaint to allege the true names and capacities
17
when they are ascertained. Plaintiff is informed and believes, and alleges theron,
18
19
that each fictitiously named Defendant is responsible in some matter for the
20
occurrences herein alleged, and that Plaintiffs damages as herein alleged were
21
22
23
14. Each of the Defendants acted as an agent for each of the other
24
Defendants in doing the acts alleged, and each Defendant ratified and otherwise
25
adopted the acts and statements performed, made or carried out by the other
26
27
28
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
1
2
3
IV.
A. KIINI COPYRIGHT.
15.
4
5
6
7
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
10
11
curves, loops, stitch, crochet, embroidery and elastic elements and their respective
12
shapes and patterns. The decorative patterned relief of the KIINI Design may be
13
14
15
16
17
18
19
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
20
21
22
23
24
///
25
///
26
27
28
///
///
-7 -
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
2
3
4
5
6
7
8
9
10
11
17.
12
attached hereto as EXHIBIT 2, Ms. Irgit assigned all of her rights in and to the
13
copyright in the KIINI Design, along with all accrued causes of action, past,
14
15
present and future, related to the copyright, to KIINI, and KIINI is the sole and
16
exclusive owner to all right, title, and interest in and to the copyright to the KIINI
17
Design, including the right to sue for past, present, and future infringements. The
18
19
20
copyright, and the written assignment agreement effectively expressly transfers all
21
accrued causes of action and claims, past, present and future, and KIINI is the
22
23
24
25
26
27
28
On or about January 24, 2013, Ms. Irgit formed KIINI as its sole
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
6
7
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
(1) KIINI
10/8/15, 5:37 PM
Nicole
Search Facebook
Home 20+
Create Page
Sponsored
10
KIINI
February 12, 2014
11
12
Sponsored
13
Create Ad
2013
14
REVOLVEclothing.com
Shop the latest looks from Parker Black on
REVOLVEclothing!
399,747 people like this
15
16
https://www.facebook.com/KiiniSwim/photos/pb.137576233113099.-2207520000.1444350132./215718628632192/?type=3&theater
17
18
19
20
21
22
23
24
20.
Page 1 of 1
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
25
with the promotion, marketing, distribution and sale of KIINI Goods. KIINI sells
26
KIINI Goods directly to customers around the world at the KIINI Site, where
27
28
consumers, industry trendsetters and members of the trade, and the public at large,
-9 -
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
6
7
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
10
11
fashion district of Los Angeles, California, which represents KIINI on-site and at
12
trade and design shows across the United States, and various retailers place orders
13
14
15
16
17
18
19
20
21
22
23
22.
KIINI Goods are sold at retail prices in the range of $165 for a bikini
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
24
25
and manage the display, reproduction, distribution and use of the KIINI Design
26
27
28
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
1
2
3
4
5
6
7
8
9
10
11
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.
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
12
13
source identifier and constitutes federally protected trade dress (the KIINI Trade
14
15
Dress). Below are images showing KIINIs use of the KIINI Trade Dress.
16
17
18
19
20
21
22
23
24
25
26
27
28
27.
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
1
2
3
4
5
6
7
Since its first use by KIINI in early 2013, KIINI has devoted substantial
10
11
29.
Since its first use in commerce, KIINI Trade Dress quickly grew in
12
popularity and achieved enormous, international success. The KIINI swimsuit has
13
become a much sought after bikini among the high-end beach and resort market
14
15
and celebrities, including Heidi Klum, Ellie Goulding, Cara Delevigne and Dree
16
17
due to its eye-catching and distinct design, its unbeatable quality, and its
18
19
popularity among fashion leaders. For example: Marie Claire UK has described
20
the brand, stating, Kiini: The A-List Swimwear Brand Everyone is Wearing;
21
Vogue UK has exalted it as one of the PERFECT PIECES: The singular styles
22
23
that dont come close to anything else; LATTIDTUDE declared it The Must-
24
Have Bikini; the New York Post has featured KIINI, describing the bikini with
25
the headline, The hottest suit of the summer; People Magazine also has featured
26
27
28
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
1
2
3
has been featured on the pages inside of various world renowned publications,
HOME
SHOP
NEWS
ABOUT
including Vogue, Womens Wear Daily, Glamour, Womens
Health
Magazine,
March 28 2015
6
7
8
9
10
11
12
13
(1) KIINI
10/8/15, 6:18 PM
Nicole
(1) KIINI
Search Facebook
14
Home 20+
10/8/15, 6:10 PM
Nicole
Search Facebook
Home 20+
Create Page
Create Page
15
Sponsored
Sponsored
16
KIINI
March 23 Edited
17
KIINI
June 4, 2014
View on Instagram
18
19
Friend Requests
Caro Sanchez
Confirm Friend
20
Sponsored
Create Ad
Sponsored
Create Ad
21
22
23
REVOLVEclothing.com
Shop the latest looks from Young, Fabulous & Broke on
REVOLVEclothing!
FORWARDByElyseWalker
Shop the latest styles from Prism on Forward by Elyse
Walker!
http://kiini.com/blogs/news/17903696-surfing-magazine-swimsuit-issue-cover-2015
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
KIINI Trade Dress, the distinctive KIINI Trade Dress is recognizable to the public
-13-
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
6
7
8
9
10
11
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
12
it does not reduce the cost or improve the performance of the swimwear, and its
13
14
15
16
swimwear designs they could use; the only reason to copy the KIINI Trade Dress
17
is to attempt to trade off its goodwill and draw sales away from KIINI. This is
18
19
20
21
22
23
Upon information and belief, prior to the time Defendants committed the
unlawful acts alleged herein, Defendants had access to the KIINI Design, which
24
has been widely marketed and sold across the global marketplace, including the
25
26
27
28
34.
fashion seasons after Ms. Irgit published the copyrighted KIINI Design and after
-14-
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
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
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
13
14
15
///
16
///
17
///
18
19
///
20
///
21
///
22
23
///
24
///
25
///
26
27
28
///
///
-15-
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
The Crochet-trim Teeny Triangle Top - Victoria's Secret Swim - Victoria's Secret
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
VS
Swim
Bikinis
V I C T O R I A' S S E C R E T S W I M
Ship To
USD
Pricing Details
BRAS
PA N T I E S
SLEEP
neon
BEAUTY
seafoamblack
nectar glow
black
watercolor
py
LIN
E R geI
W/ G stripe
W/
Size
XS
VS
Swim
Bikinis
HOME
SHOP
NEWS
ABOUT
Quantity
9
10 Home
BE KIINI
Bea - Top
11
Description
Share on Facebook
Pin on Pinterest
The new boho: crocheted bands in high-contrast col
icon.
Removable padding for no show-through
Halter hooks at neck
Back hook closure
12
Adjustable straps
Bea - Top
13
14
15
Hand wash
(1) KIINI
Nicole
Search Facebook
Home 20+
Create Page
USD
18
Sponsored
Ship To
BRAS
19
$165.00
16
17
Imported nylon/spandex
10/8/15, 5:23 PM
VS
PA N T I E S
Swim
SLEEP
Bikinis
BEAUTY
LINGERIE
SWIM
SPORT
Quantity
CLOTHING
V I C T O R I A' S S E C R E T S W I M
KIINI
https://www.victoriassecret.com//swimwear/bikinis/the-crochet-trim-tectorias-secret-swim?ProductID=265161&CatalogueType=OLS&
December 25, 2014
20
21
22
Add to cart
$52.50 - $54.50
Pricing Details
Write a comment...
black
black
neon
W/
W/
nectar sugar
violet
seafoamwatercolor
py
glow
stripe
ge
23
Size
XS
24
Friend Requests
25
See All
Caro Sanchez
Confirm Friend
26
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
28
Like
-16-
Sizes: S,M,L
1
2
3
4
5
6
7
35.
in the United States, including in California and the Central District, via the
10
11
12
13
14
15
16
17
18
19
37.
Trade Dress, using confusingly similar color blocking, pattern, texture, marketing,
and overall look and feel.
39.
Copy are so striking that several discerning consumers have generated electronic
20
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
25
26
27
28
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
6
7
40.
Copy create consumer confusion as an imitation of the KIINI Design and Trade
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
14
15
16
17
18
19
imitations.
42.
20
continue to sell the infringing VICTORIAS SECRET Copy and injure Plaintiff
21
22
23
43.
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
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
to Plaintiff.
3
4
5
6
7
8
9
10
11
44.
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
13
943-361, issued December 18, 2014, which constitutes prima facie evidence
14
15
16
17
18
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
22
23
24
25
26
27
28
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
1
2
3
4
5
6
7
8
9
10
11
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
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
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
23
24
25
26
27
28
rights.
50.
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
6
7
8
9
10
11
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.
17 U.S.C. 501.
52.
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.
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
25
26
27
28
54.
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
6
7
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.
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
13
14
15
16
17
18
19
approval of KIINI.
57.
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
22
23
24
represent that Defendants VICTORIAS SECRET Site, its business, and its
25
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
1
2
3
4
5
6
7
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.
10
11
12
13
Defendants VICTORIAS SECRET Site, its business and all of its products, all in
14
15
16
17
18
19
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
22
23
24
25
26
27
28
affiliated with KIINI, and will continue to do so unless enjoined by this Court.
60.
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
1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
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.
16
KIINIs rights and to trade on KIINI's goodwill to its great and irreparable
17
damage.
18
19
63.
20
21
22
23
64.
24
permit them to make substantial sales and profits on the strength of KIINIs
25
26
27
28
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
6
7
8
9
10
11
1117(a).
65.
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
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
25
Defendants.
26
27
28
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
1
2
3
4
5
6
7
68.
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
10
11
12
13
14
15
69.
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
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
22
23
24
25
26
27
28
Act.
72.
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
6
7
8
9
10
11
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.
12
13
14
15
75.
16
17
mark that is virtually identical to KIINI Trade Dress which is likely to cause
18
19
20
21
22
23
24
25
26
27
28
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
1
2
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.
between Plaintiff and Defendants, or any of them. KIINI has not authorized,
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28
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.
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
6
7
81.
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.
10
11
12
13
U.S.C. 1117(a).
14
15
83.
16
KIINI has been and will be damaged in at least the following ways, in amounts as
17
yet unknown but to be proven at trial: (i) KIINI has suffered and will suffer a loss
18
19
20
identical Trade Dress in connection with its advertising, promoting, selling and
21
distributing of infringing apparel harms the exclusivity, value and good will of
22
23
Plaintiffs designs, marks, trade dress and products; (ii) KIINI has been and will
24
be deprived of the full value of its federally-registered marks and common law
25
26
27
28
84.
KIINI further is entitled to its attorneys fees and full costs pursuant to
15 U.S.C. 1117.
-29-
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
6
7
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)
8
9
10
11
12
13
14
15
86.
practices as defined in California Bus. & Prof. Code Section 17200 et seq., and
16
have utilized the unlawful and tortious means alleged herein to unjustly enrich
17
18
19
20
21
22
23
without right, title, or authority, the copyright and the valuable good will and
exclusive KIINI Design and KIINI Trade Dress.
88.
commerce, are intended to, and are likely to, lead to confusion, mistake, or
24
deception among the public as to the source, origin, or approval of the infringing
25
goods offered for sale by Defendants, causing KIINI irreparable injury, and
26
27
28
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
6
7
copyright, trademarks, and trade dress as alleged herein, has created confusion in
the publics mind, creating the false appearance that they are legitimately
10
11
12
13
14
15
16
17
KIINI.
18
19
90.
20
21
22
23
rights of Plaintiff for commercial profit and thus continue their practice of
24
25
repetition of the unfair and deceptive acts and practices described above.
26
27
28
91.
practices in violation of Section 17200, KIINI has suffered and will continue to
-31-
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
6
7
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.
8
9
10
11
12
13
14
15
16
17
18
19
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
20
Design and Trade Dress or marks in connection with the distribution, advertising,
21
offer for sale and/or sale of merchandise not the genuine products of KIINI;
22
23
24
25
26
27
28
(b)
Passing off, inducing or enabling others to sell or pass off any infringing
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
6
7
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
10
11
(e)
12
Defendants products are those sold under the control or supervision of KIINI, or
13
14
15
16
17
18
19
20
21
22
23
KIINI;
(f)
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
24
25
Design and Trade Dress in connection with Defendants sales of its products, its
26
27
28
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
6
7
8
9
10
11
(i)
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)
12
(k)
13
(l)
That Defendants, within thirty (30) days after service of judgment with
14
15
notice of entry thereof upon it, be required to file with the Court and serve upon
16
KIINI a written report under oath setting forth in detail the manner in which
17
18
19
2.
20
21
award of Defendants profits and for damages in such amount as may be found;
22
23
24
with respect to each copyrighted work infringed, or for such other amount as may
25
26
27
28
accounting of all sales and profits derived from the infringements and that all
gains, profits, and advantages derived by Defendants from these acts of
-34-
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
6
7
represented Design and Goods pursuant to 17 U.S.C. 502; for an order seizing
10
11
12
13
14
15
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.
16
17
18
19
employees, and all persons acting in concert with them, from committing acts of
20
unfair competition; and for an award of costs and attorneys fees pursuant to 15
21
22
23
4.
24
25
proper pursuant to 15 U.S.C. 1125(a) and 1117; for an order preliminarily and
26
27
28
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT
1
2
3
4
5
6
7
and for an award of costs and attorneys fees pursuant to 15 U.S.C. 1125(a) and
1117.
5.
10
11
12
6.
7.
For such other and further relief as the Court deems just and proper.
13
14
15
16
17
18
19
20
By: _/MAZ/____________________________
Mary A. Zachar, Esq.
Attorney for Plaintiff, KIINI
21
22
23
24
25
26
27
28
-36-
KIINI COMPLAINT
FOR DAMAGES AND INJUNCTIVE RELIEF:
COPYRIGHT & TRADEMARK INFRINGEMENT