kiini v. victoria's secret - bikinis.pdf

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-1- KIINI COMPLAINT

FOR DAMAGES AND INJUNCTIVE RELIEF: COPYRIGHT & TRADEMARK INFRINGEMENT

Mary A. Zachar, State Bar No. 79233 [email protected] Nicole Z. Davidson, State Bar No. 302783 [email protected] Jeffrey L. Davidson, State Bar No. 56843 [email protected] LAW OFFICES OF JEFFREY L. DAVIDSON 1801 Century Park East, 24th Floor Los Angeles, CA 90067 Telephone: 310-556-9639 Attorneys for Plaintiff, KIINI LLC

UNITED STATES DISTRICT COURT

FOR THE CENTRAL DISTRICT OF CALIFORNIA

KIINI LLC, a New York LLC,

Plaintiff,

v. VICTORIA'S SECRET STORES BRAND MANAGEMENT, INC., a Delaware corporation; and DOES 1-10 inclusive.

Defendants.

Case No. 2:15-CV-8433 COMPLAINT FOR DAMAGES AND INJUNCTIVE RELIEF BASED ON COPYRIGHT INFRINGEMENT, UNFAIR COMPETITION, TRADE DRESS INFRINGEMENT, AND UNLAWFUL BUSINESS PRACTICES DEMAND FOR JURY TRIAL

I. INTRODUCTORY STATEMENT.

1. Plaintiff KIINI LLC (“KIINI”) brings this action against Defendants

VICTORIA’S SECRET STORES BRAND MANAGEMENT, INC.

(“VICTORIA’S SECRET”) and Does 1-10 inclusive (collectively referred to as

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

trade dress infringement, and unfair competition.

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

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-2- KIINI COMPLAINT


2. Plaintiff KIINI is an independent swimwear brand that, through the

original, creative talents of its owner, Ipek Irgit ("Ms. Irgit"), successfully

launched an international swimwear line that has achieved a cult-like following

and is known for the original, distinct, copyright-protected design (the “KIINI

Design”) featured on each of KIINI’s bikinis. Defendant VICTORIA’S SECRET,

a large corporation known for creating mass-produced lingerie and other ready-to-

wear apparel, has recently reproduced, marketed and sold an infringing knock-off

copy of the KIINI bikini (the “VICTORIA’S SECRET Copy”), without KIINI’s

consent, in the pursuit of its own self-promotion and profit, and to KIINI’s unfair

harm and detriment. Below are images showing the virtually indistinguishable

appearance of the KIINI bikini and the VICTORIA’S SECRET Copy.

KIINI Original VICTORIA’S SECRET Copy

10/6/15, 5:39 PMThe Crochet-trim Teeny Triangle Top - Victoria's Secret Swim - Victoria's Secret

Page 1 of 4https://www.victoriassecret.com//swimwear/bikinis/the-crochet-trim-te…ctorias-secret-swim?ProductID=265161&CatalogueType=OLS&origin=search

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VS / Swim / Bikinis / The Crochet-trim Teeny Triangle Top

Write the First Review

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

NEW! The Crochet-trim TeenyTriangle Top

Color Violet Sugar

Size

Quantity

Choose Your Bottom

Pricing Details

$52.50 - $54.50 SR-340-578

neon

nectar

seafoam

glow

black

W/

black

W/

watercolor

stripe

pyramid

geo

Size & Fit

XS S M L

0

DescriptionThe new boho: crocheted bands in high-contrast colors restring a sexy swim

icon.

Removable padding for no show-through

Halter hooks at neck

Back hook closure

Adjustable straps

Crochet-wrapped elastic bands

In smooth matte fabric

Hand wash

Imported nylon/spandex

Click Image to Enlarge

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B R A S P A N T I E S S L E E P B E A U T Y L I N G E R I E S W I M S P O R T C L O T H I N G S A L E

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3. In case there is any doubt regarding Defendants’ bad faith intent to copy

the KIINI Design, imitate the KIINI brand, cause consumer confusion and deceive


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-3- KIINI COMPLAINT


the public regarding source, sponsorship or affiliation, VICTORIA’S SECRET

describes its infringing copy on its website using the name “Teeny” (a sound-alike

name and strikingly similar to Plaintiff’s “KIINI” mark).

4. Defendants will continue their illegal conduct and will succeed in

exploiting at no cost to them the valuable investment KIINI has made in the KIINI

Design and its other intellectual property assets, as described in more detail below.

Accordingly, KIINI seeks preliminary and permanent injunctive relief against the

ongoing infringement of its legal rights, and damages, both actual and statutory,

for the violations of KIINI’s rights to date.

II. JURISDICTION AND VENUE.

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

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

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

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

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

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

California Unfair Competition Law, California Business and Professions Code §§

17200 et. seq.

6. The jurisdiction of this Court over the federal claims is proper pursuant

to 28 U.S.C. §§ 1331 and 1338(a), insofar as they arise under the Copyright Act

and the Lanham Act. This Court has supplemental jurisdiction of Plaintiff's state


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-4- KIINI COMPLAINT


law claims pursuant to 28 U.S.C. § 1367(a), insofar as they are so related to

Plaintiff's other claims that they form part of the same case or controversy.

7. This Court has personal jurisdiction over Defendants because, on

information and belief, Defendants: (a) market, distribute, offer for sale, and sell

to persons within the Central District of California; (b) solicit and transact

business in the Central District of California; (c) operate multiple retail stores in

the Central District of California; (d) have employees and agents in the Central

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

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

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

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

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

California. Moreover, this Court has personal jurisdiction over Defendants

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

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

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

interactive VICTORIA’S SECRET Site), have otherwise purposefully availed

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

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

the State of California, sufficient to permit the exercise of personal jurisdiction.

8. Venue in the Federal District Court of the Central District of California


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-5- KIINI COMPLAINT


is proper pursuant to 28 U.S.C. §1391(b) (2), (c) and (d), and §1400(a) because

Defendants are subject to personal jurisdiction in the Central District of California

and a substantial part of the acts or omissions giving rise to Plaintiff's claims

occurred in the Central District of California.

III. THE PARTIES.

9. Plaintiff KIINI is a New York Limited Liability Company with its

business office located at 75 East 4th St. Suite 88, New York, New York, 10003,

and with its principal sales and marketing showroom, Summer Somewhere

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

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

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

available for purchase on KIINI’s website, kiini.com (“KIINI Site”), and through

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

California.

10. Upon information and belief, Defendant VICTORIA’S SECRET is a

corporation organized and existing under the laws of the State of Delaware with

its principal place of business at Three Limited Parkway, Columbus, Ohio 43230.

Upon information and belief, Defendant VICTORIA’S SECRET manufactures,

markets, and sells a wide range of women’s intimate and other apparel, including

swimsuits, as well as beauty and personal care products and accessories across the

United States, including in the Central District of California.


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-6- KIINI COMPLAINT


11. Upon information and belief, Defendant VICTORIA’S SECRET

operates an interactive website, www.victoriassecret.com (the “VICTORIA’S

SECRET Site”), offering for sale infringing design products as more fully

described herein.

12. Upon information and belief, VICTORIA’S SECRET does business in

the Central District of California by operating multiple retail stores, and by

promoting, marketing, selling, and distributing various products, including swim

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

retail stores and the VICTORIA’S SECRET Site, as well as through other media.

13. Plaintiff is ignorant of the true names and capacities of the Defendants

sued herein as Does 1-10, inclusive, and sues said Defendants by such fictitious

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

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

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

occurrences herein alleged, and that Plaintiff’s damages as herein alleged were

proximately caused by their conduct.

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

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

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

Defendants so as to make them directly and vicariously liable to Plaintiff for the

conduct complained of herein.


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-7- KIINI COMPLAINT


IV. FACTUAL ALLEGATIONS COMMON TO ALL CLAIMS.

A. KIINI COPYRIGHT.

15. On or before early 2013, Ms. Irgit, as the original, individual sole

author, created the KIINI Design. The KIINI Design is an original work of

authorship embodying copyrightable subject matter, subject to the full protection

of the United States Copyright Act. The KIINI Design includes, without

limitation, the selection, coordination, compilation and arrangement of lines,

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

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

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

apparel and accessories.

16. On or about December 18, 2014, Ms. Irgit, as the author and claimant,

registered the copyright in her KIINI Design titled “Bathing Suit Art #1” issued by

the United States Copyright Office as Registration No. VA 1-943-361 (hereinafter

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

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

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

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-8- KIINI COMPLAINT


Copyright Registration Deposit

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

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

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

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

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

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

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

copyright, and the written assignment agreement effectively expressly transfers all

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

proper party to bring this action.

B. KIINI REGISTERED TRADEMARKS.

18. On or about January 24, 2013, Ms. Irgit formed KIINI as its sole

member and KIINI commenced the process of developing, manufacturing,

marketing, and selling swimwear prominently featuring the copyright-protected


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-9- KIINI COMPLAINT


KIINI Design (“KIINI Goods”).

19. KIINI is the owner of and sells KIINI Goods using the United States

Patent and Trademark Office federally registered stylized “KIINI” trademark and

triangle design logo (U.S. Trademark Registration Nos. 4443631 and 4477816)

(collectively, the “KIINI Registered Marks”). Copies of the Certificates of

Trademark Registration are attached hereto as EXHIBIT 3. Below are images of

the KIINI Registered Marks.

10/8/15, 5:37 PM(1) KIINI

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20. Pursuant to a written, signed, and duly executed Trademark Assignment,

attached hereto as EXHIBIT 4, Ms. Irgit validly transferred and assigned the

KIINI Registered Marks and registrations to Plaintiff, and Plaintiff is the rightful

owner and party to bring the claims set forth herein.

21. Since early 2013, Plaintiff has used the KIINI Registered Marks

exclusively and continuously in interstate commerce and abroad in connection

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

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

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


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-10- KIINI COMPLAINT


are able to view the KIINI Design and make direct purchases of KIINI Goods.

KIINI also sells KIINI Goods on a wholesale basis to both online and brick and

mortar retailers located across the United States and abroad, including in the

Central District of California, which in turn distribute KIINI swimwear to

consumers through out the world. For example, KIINI Goods are carried by

retailers such as Barneys, Bergdorf Goodman, and Net-A-Porter. KIINI has a

showroom representative based in the iconic Cooper Building in the downtown

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

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

through KIINI’s Los Angeles showroom representative.

22. KIINI Goods are sold at retail prices in the range of $165 for a bikini

top, and $120 for a bottom.

23. Each KIINI Good prominently displays Ms. Irgit's original copyrighted

artwork, the KIINI Design.

24. KIINI ships all customer and retail orders directly from its office in New

York, maintaining strict quality standards and controls, and KIINI inspects and

approves each swimsuit before it is hand-packaged using original KIINI

packaging, and delivered and distributed to a customer. KIINI’s efforts to control

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

are controlled to ensure the usage complies with KIINI’s standards, the

expectation of its high-end and celebrity consumers, as well as KIINI’s


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intellectual property rights, and to maximize the value of the KIINI Design and

KIINI’s goodwill. These measures are at a great cost to KIINI.

25. KIINI’s marketing and advertising includes depictions of the KIINI

Design on the KIINI Site, on social media platforms, including Facebook and

Instagram, and various other media, and KIINI receives an enormous amount of

unsolicited press, as described in more detail below.

C. KIINI TRADE DRESS.

26. The overall commercial image of the popular KIINI bikini, featuring the

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

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

Dress”). Below are images showing KIINI’s use of the KIINI Trade Dress.

27. KIINI Trade Dress is comprised of the following elements: 1) a triangle

profile bikini; 2) a distinctive, rectangular crochet pattern that borders the edges of

the bikini; 3) the rectangular geometric pattern is doubled at the bottom edge of

the bikini top, and the top edge of the bikini bottom; 4) bright color blocking


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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 top’s upright

triangle profile and the bikini bottom’s upside down triangle profile, which mimic

the triangle design elements of the stylized KIINI Registered Marks.

28. Since its first use by KIINI in early 2013, KIINI has devoted substantial

efforts to promote KIINI Trade Dress on social media platforms, including

Instagram, and has used it exclusively and prominently in interstate commerce.

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

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

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

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

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

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

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

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

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

that don’t come close to anything else”; “L’ATTIDTUDE declared it “The Must-

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

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

a KIINI bikini calling it “The Hottest Bikini This Summer.” The KIINI bikini has

appeared on the covers of Turkish ELLE, BOA FORM, Surfing Magazine, and it


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has been featured on the pages inside of various world renowned publications,

including Vogue, Women’s Wear Daily, Glamour, Women’s Health Magazine,

Oprah Magazine, Harper’s Bazaar, In Style, Conde Nast Traveller,

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

10/8/15, 6:22 PMSurfing Magazine - Swimsuit issue Cover -2015 - KIINI

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Surfing Magazine - Swimsuit issue Cover -2015

March 28 2015

Chacha and Ro KIINI in Surfing Magazine Swimsuit issue

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

KIINI bikini.)

30. As a result of KIINI’s exclusive and extensive use and promotion of the

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


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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,

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

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

disadvantage. Indeed, competitors have available a multitude of alternative

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

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

exactly what Defendants have unfairly and unlawfully done here.

D. DEFENDANTS’ UNLAWFUL ACTS.

33. Upon information and belief, prior to the time Defendants committed the

unlawful acts alleged herein, Defendants had access to the KIINI Design, which

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

internet and social media.

34. Upon information and belief, on or around the Summer of 2015, many

fashion seasons after Ms. Irgit published the copyrighted KIINI Design and after


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KIINI acquired exclusive rights to the use of the KIINI Trade Dress and KIINI

Registered Marks, Defendants began creating, marketing, importing, advertising,

selling, and distributing the VICTORIA’S SECRET Copy, bearing a substantially

similar design copied from and nearly identical to the KIINI Design, and using the

KIINI Trade Dress as its own in a manner likely to cause, and which in fact has

caused, consumer confusion in the marketplace. VICTORIA’S SECRET calls the

VICTORIA’S SECRET Copy, “The Crochet-trim Teeny Triangle Top” and “The

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

340-578 and SR-340-580). Below are images comparing the VICTORIA’S

SECRET Copy to a KIINI bikini:

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KIINI Original

VICTORIA’S SECRET Copy



USD Ship To Search





Color Violet Sugar

Size

Quantity

Choose Your Bottom

Pricing Details

$52.50 - $54.50 SR-340-578

neon

nectar

seafoam

glow

black

W/

black

W/

watercolor

stripe

pyramid

geo

Size & Fit

XS S M L

0


icon.



Back hook closure

Adjustable straps



Hand wash



Share on Facebook Pin on Pinterest 0LikeLike


0

10/8/15, 7:14 PMBea - Top - KIINI

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Home BE KIINI Bea - Top

Bea - Top

$165.00

S

Quantity

1

Add to cart

Color: Light pink with multi

KIINI swimsuits are a combination of handmade crochet, elastic andhigh tech fabrics. KIINIs are created without clasps, buttons or tiesfor the most secure fit and are perfect for active days at sand andsea.

*Handmade

Sizes: S,M,L

KIINI Sizing Chart

MATERIAL CONTENT:

Fabric: 75%Polyester, 25%Spandex

Yarn: 100% Cotton

Elastic

*We accept exchanges only in the US, and to a differentsize. Exchanges are subject to availability.

**No returns accepted!

***Orders that are designated for shipment to countries outside ofthe U.S. may be subject to local taxes, customs duties and feeslevied by the destination country ("Import Fees"). The recipient of

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USD Ship To Search





Color Violet Sugar

Size

Quantity

Choose Your Bottom

Pricing Details

$52.50 - $54.50 SR-340-578

neon

nectar

black

orchid

seafoam

glow

black

W/

black

W/

watercolor

stripe

pyramid

geo

Size & Fit

XS S M L

0


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KIINIDecember 25, 2014 ·

Alter hot Dimension von der KIINILANDChaCha KIINI is on fire on this babe Elyse Knowsly#regram @itsnowcool


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35. True and correct copies of printouts from the VICTORIA’S SECRET

Site showing images of the VICTORIA’S SECRET COPY are attached as

EXHIBIT 6.

36. Upon information and belief, Defendants are marketing, advertising,

selling, and distributing the VICTORIA’S SECRET Copy in interstate commerce

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

VICTORIA’S SECRET Site and in VICTORIA’S SECRET’s retail stores.

37. The VICTORIA’S SECRET Copy is copied from and substantuially

similar to the copyright-protected KIINI Design.

38. The VICTORIA’S SECRET Copy is confusingly similar to the KIINI

Trade Dress, using confusingly similar color blocking, pattern, texture, marketing,

and overall look and feel.

39. The similarities between KIINI Goods and the VICTORIA’S SECRET

Copy are so striking that several discerning consumers have generated electronic

content posted on popular social media, referring to the VICTORIA’S SECRET

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

and “Victoria’s secret knock off kiini.” (See EXHIBIT 7, images of Instagram

account, on information and belief, belonging to a Victoria’s Secret model,

Candice Swanepoel, including a photo of the VICTORIA’S SECRET model

wearing a VICTORIA’S SECRET Copy along with posted comments on the

photo.)


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40. Indeed, the similarities between a KIINI swimsuit and the VICTORIA’S

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

consumers have queried on photos of the VICTORIA’S SECRET Copy, stating:

“Is this a KIINI swimsuit or Victoria’s Secret?” Id.

41. VICTORIA’S SECRET clearly intends that the VICTORIA’S SECRET

Copy create consumer confusion as an imitation of the KIINI Design and Trade

Dress, referring to it as a “Teeny” (a sound-alike name and strikingly similar to

Plaintiff’s “KIINI” mark), and making the copy in the same color combinations as

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

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

imitations.

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

Defendants’ infringement of KIINI’s copyright and trademark rights. At the time

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

continue to sell the infringing VICTORIA’S SECRET Copy and injure Plaintiff

without authorization or justification.

43. Defendants’ infringement was accomplished with the intent to reap the

benefits of KIINI’s original design and trade dress, while free-riding on the good

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

protected trademarks and trade dress. Defendants’ conduct, unless preliminarily

and permantly enjoined, will continue unabated causing further irreparable harm


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to Plaintiff.

FIRST CLAIM FOR RELIEF DIRECT COPYRIGHT INFRINGEMENT

(17 U.S.C. § 501)

44. Plaintiff incorporates by reference Paragraphs 1 through 43 above, as

through fully set forth herein.

45. The KIINI Design is an original work of authorship and constitutes

copyrightable subject matter under United States Copyright Act. The artwork

represented in the "Bathing Suit Art #1" is a tangible fixed medium of original

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

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

pursuant to 17 U.S.C. § 410 of the validity of the copyright and the facts stated in

the Certificate, and is entitled to a presumption of validity.

46. At all relevant times, KIINI was authorized by and acted under the

permission of the rightful copyright owner, and is now the rightful owner of all of

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

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

distribution, and the right to sue for past, present, and future infringements of the

KIINI Design.

47. Ms. Irgit, Plaintiff's Assignor, has filed with the United States Office of

Copyright the required deposit, application and fees for the KIINI Design at issue

pursuant to 17 U.S.C. § 408, § 409, and the copyright registration set forth in


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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

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

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

Plaintiff’s exclusive copyright by their conduct in using a substantially similar

reproduction of the KIINI Design on the VICTORIA’S SECRET Copy, and their

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

design without KIINI’s license or authorization in violation of the Copyright Act.

49. Defendants have no license or any other form of permission to copy,

duplicate, or claim copyright ownership in the KIINI Design, or to sell or

distribute any portion of the KIINI Design, or any derivatives thereof, and all of

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

Plaintiff or Plaintiff’s assignor, and taken in violation of Plaintiff’s exclusive

rights.

50. The actions and conduct of Defendants as described above infringe upon


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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

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

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

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

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

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

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

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

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

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

permanent injunctions prohibiting further infringement of the KIINI Design.

SECOND CLAIM FOR RELIEF UNFAIR COMPETITION

(15 U.S.C. § 1125(a))

54. Plaintiff incorporates by reference Paragraphs 1 through 53 above, as


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55. The KIINI Design, KIINI Goods, KIINI Trade Dress, trade name and all

of the designs and products owned by Plaintiff are protected as to source under

Plaintiff's KIINI Registered Marks described herein.

56. Defendants’ creation, marketing, and sale of the VICTORIA’S SECRET

Copy and their confusingly similar use of the KIINI Trade Dress, KIINI Design,

KIINI marks and trade name has caused and is likely to cause confusion,

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

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

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

approval of KIINI.

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

KIINI’s unique designs, marks, products and trade dress as its own designations in

commerce and in competition with KIINI. Defendants have boldly appropriated

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

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

Defendants, for the commercial misappropriation to falsely advertise and

represent that Defendants’ VICTORIA’S SECRET Site, its business, and its

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

with KIINI. An example of such is its creation, marketing, and sale of its

VICTORIA’S SECRET Copy, which is nearly identical to the KIINI Design and


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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 Plaintiff’s tradename and mark, “KIINI,” and

the original and distinctive KIINI Design.

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

of origin and a false or misleading representation of fact which is likely to cause

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

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

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

Defendants’ VICTORIA’S SECRET Site, its business and all of its products, all in

continual violation of 15 U.S.C. § 1125.

59. Plaintiff is informed and believes and based thereon alleges that

Defendants intended to and did confuse and mislead the public, and intended to

and did represent and create the false impression that Defendants’ VICTORIA’S

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

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

affiliated with KIINI, and will continue to do so unless enjoined by this Court.

60. In fact, there is no affiliation, endorsement or other relationship of any

kind between Plaintiff and Defendants. KIINI has not authorized, licensed, or

given permission to Defendants to copy, use, display, distribute, attribute or

otherwise affiliate in any commercial manner whatsoever the KIINI Design and


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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 VICTORIA’S SECRET Site, business and all

of their products, and confusion as to a connection between Plaintiff and

Defendants, is unauthorized and unlawful.

61. Plaintiff is entitled to and requests an injunction restraining Defendants

and their respective officers, agents and employees, and all persons acting in

concert with them, from engaging in any further acts in violation of 15 U.S.C. §

1125.

62. Upon information and belief, Defendants’ conduct has been knowing,

deliberate, willful, intended to cause mistake or to deceive, and in disregard of

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

damage.

63. The foregoing actions by Defendants constitute false designation of

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

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

64. Defendants’ wrongful acts, as alleged above, have permitted or will

permit them to make substantial sales and profits on the strength of KIINI’s

nationwide and international marketing, advertising, sales and customer

recognition in an amount not presently known but to be proven at trial. Based on

the foregoing conduct, this is an exceptional case within the meaning of 15 U.S.C.


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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

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

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

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

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

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

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

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

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

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

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

Defendants.

67. KIINI further is entitled to its attorney’s fees and full costs pursuant to

15 U.S.C. § 1117.


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harmed by Defendants’ continuing violation of its rights as set forth above, and

such harm will continue unless Defendants are enjoined by this Court. Pursuant to

15 U.S.C. § 1116, KIINI is entitled to preliminary and permanent injunctions

prohibiting further violations of the Lanham Act.

THIRD CLAIM FOR RELIEF TRADE DRESS INFRINGEMENT

(15 U.S.C. § 1125(a))

69. Plaintiff incorporates by reference Paragraphs 1 through 68, above, as

though fully set forth herein.

70. Plaintiff has used KIINI Trade Dress in connection with KIINI Goods in

interstate commerce since 2013 as an identifier of the source. KIINI Trade Dress

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

the marketplace.

71. The KIINI Trade Dress appears in connection with the KIINI Registered

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

and the marks for which KIINI’s registrations offer protection under the Lanham

Act.

72. Subsequent to adoption of the KIINI Trade Dress by Plaintiff and

without Plaintiff’s consent, Defendants intentionally adopted and began prominent

use in commerce of a mark confusingly similar to KIINI Trade Dress. Defendants

affixed and portrayed their virtually identical infringing trade dress on the


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VICTORIA’S SECRET Copy, which they have advertised, promoted, and sold on

the VICTORIA’S SECRET Site, in VICTORIA’S SECRET retail stores, and,

upon information and belief, in the VICTORIA’S SECRET mail catalogue.

73. Defendants’ virtually identical VICTORIA’S SECRET Copy is even

confusingly described by Defendants on the VICTORIA’S SECRET Site as a

“Teeny” (strikingly similar to Plaintiff’s “KIINI” mark).

74. Defendants’ infringing use of KIINI’s Trade Dress and Design has

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

consuming public into believing that Defendants’ unauthorized products are

authorized, sponsored, or approved by Plaintiff.

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

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

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

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

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

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

Defendants’ VICTORIA’S SECRET Site, business and products, all in continual

violation of 15 U.S.C. §1125.

76. Plaintiff is informed and believes and based thereon alleges that

Defendants intended to and did confuse and mislead the public, and intended to

and did represent and create the false impression that Defendants’ VICTORIA’S


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

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

affiliated with KIINI, and will continue to do so unless enjoined by this Court.

77. There is no affiliation, endorsement or other relationship of any kind

between Plaintiff and Defendants, or any of them. KIINI has not authorized,

licensed, or given permission to Defendants to copy, use, display, distribute,

attribute or otherwise affiliate in any commercial manner whatsoever the KIINI

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

concerning an association and affiliation between Plaintiff and Defendants and

their VICTORIA’S SECRET Site, business and products, and confusion as to a

connection between Plaintiff and Defendants is unauthorized and unlawful.

78. Plaintiff is entitled to and requests an injunction restraining Defendants

and its respective officers, agents and employees, and all persons acting in concert

with them, from engaging in any further acts in violation of 15 U.S.C. § 1125,

including but not limited to the use of their virtually identical Trade Dress.

79. Upon information and belief, Defendants’ conduct has been knowing,

deliberate, willful, intended to cause mistake or to deceive, and in disregard of

KIINI’s rights.

80. The foregoing actions by Defendants constitute trade dress infringement,

false designation of origin, false misrepresentation, and unfair competition in

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


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81. Defendants’ wrongful acts, as alleged above, have permitted or will

permit them to make substantial sales and profits on the strength of KIINI’s

nationwide and international marketing, advertising, sales and customer

recognition in an amount not presently known but to be proven at trial. Based on

the foregoing conduct, this is an exceptional case within the meaning of 15 U.S.C.

§ 1117(a).

82. As a direct and proximate result of Defendants’ violations of the

Lanham Act, 15 U.S.C. § 1125(a), KIINI is entitled to damages and to recover

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

U.S.C. § 1117(a).

83. As a direct and proximate result of Defendants’ wrongful conduct,

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

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

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

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

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

Plaintiff’s designs, marks, trade dress and products; (ii) KIINI has been and will

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

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

84. KIINI further is entitled to its attorney’s fees and full costs pursuant to

15 U.S.C. § 1117.


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harmed by, Defendants’ continuing violation of its rights as set forth above, and

such harm will continue unless Defendants are enjoined by this Court. Pursuant to

15 U.S.C. § 1116, KIINI is entitled to preliminary and permanent injunctions

prohibiting further violations of the Lanham Act.

FOURTH CLAIM FOR RELIEF UNFAIR COMPETITION AND UNFAIR BUSINESS PRACTICES

(Cal. Bus. & Prof. Code Section 17200)

86. Plaintiff incorporates by reference Paragraphs 1 through 85, above, as


87. Defendants have engaged in unlawful, unfair and fraudulent business

practices as defined in California Bus. & Prof. Code Section 17200 et seq., and

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

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

without right, title, or authority, the copyright and the valuable good will and

exclusive KIINI Design and KIINI Trade Dress.

88. Defendants’ deceptive acts and practices were undertaken in trade or

commerce, are intended to, and are likely to, lead to confusion, mistake, or

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

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

violating Section 17200 in the following respects:

(a) Defendants’ acts of misappropriation, as alleged herein, violate KIINI’s


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federally protected copyrights, trade dress, and trademarks, and consequently

constitute an unlawful business act or practice within the meaning of Section

17200; and

(b) Defendants’ unfair, misleading and deceptive use of Plaintiff’s

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

the public’s mind, creating the false appearance that they are legitimately

connected or affiliated with KIINI and the false appearance of KIINI’s

endorsement of Defendants’ business and products.

89. As a result of the acts described above, Defendants are misleading and

confusing consumers who are attempting to purchase legitimate and authentic

KIINI Goods. As a result, these consumers may be confused into believing that

Defendants’ infringing products are endorsed, affiliated with or sponsored by

KIINI.

90. The unlawful, unfair and fraudulent business practices alleged herein

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

unpunished, are likely to continue to misappropriate the intellectual property

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

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

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

91. As a direct and proximate result of Defendants’ deceptive acts and

practices in violation of Section 17200, KIINI has suffered and will continue to


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suffer losses and irreparable injury to its business reputation and goodwill in

amounts not yet ascertained. KIINI’s remedy at law is not itself adequate to

compensate it for injury inflicted and threatened by Defendants.

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

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

PRAYER FOR RELIEF

NOW WHEREFORE, KIINI prays for judgment against Defendants as

follows:

1. On ALL CLAIMS FOR INJUNCTIVE RELIEF, that Defendants, their

officers, agents, servants, employees, confederates, and all persons acting for,

with, by, through or under them be permanently enjoined and restrained from:

(a) Using the KIINI Design and Trade Dress, including any trademark,

service mark, name, logo, design or source designation of any kind owned by

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

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

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

(b) Passing off, inducing or enabling others to sell or pass off any infringing

products as and for KIINI Goods;

(c) Shipping, delivering, holding for sale, distributing, returning,

transferring or otherwise moving, storing, or disposing of in any manner products

falsely bearing the KIINI Design or Trade Dress, or any reproduction, counterfeit,


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copy, or colorable imitation of the same; and

(d) Directly or indirectly infringing the KIINI Design and Trade Dress in

any manner throughout the world, including but not limited to reproducing,

adapting, and/or displaying KIINI Designs or Trade Dress by distributing,

importing, exporting, advertising, selling, and/or offering for sale, or causing

others to do so, any product, including without limitation, products bearing

designs or marks substantially similar to KIINI’s Design and Trade Dress;

(e) From committing any acts calculated to cause purchasers to believe that

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

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

KIINI;

(f) From committing any acts calculated to cause the public consumers to

believe that Defendants’ products are those sold under the control or supervision

of KIINI, or sponsored or approved by, or connected with, or guaranteed by, or

produced under the control and supervision of KIINI;

(g) Using the KIINI Design and Trade Dress, including any trademark,

service mark, name, logo, design or source designation of any kind owned by

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

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

domain names, websites, other online services or activities, or other goods or

services produced or provided by KIINI, or sponsored or authorized in any way


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connected or related to KIINI; and

(h) Operating infringing websites;

(i) Causing any of the infringing products and designs and Defendants’

unlawful conduct as set for this in this Complaint from being distributed,

displayed, reproduced, or accessible to or through any Third-party Site, or offered

for sale in any manner through such Third-party Sites.

(j) From further infringing any of KIINI Design, Trade Dress, Marks,

Copyrights, or damaging KIINI’s goodwill;

(k) From otherwise unfairly competing with KIINI in any manner.

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

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

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

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

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

Defendants have infringed Plaintiff’s copyrights in Plaintiff’s Designs, for an

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

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

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

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

accounting of all sales and profits derived from the infringements and that all

gains, profits, and advantages derived by Defendants from these acts of


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infringements be deemed to be held in constructive trust for the benefit of

Plaintiff, and ordering Defendants to turn over all inventory and designs within

Defendants’ control; for an order preliminarily and permanently enjoining

Defendants, their officers, agents, employees, and all persons acting in concert

with them, from copying, producing, manufacturing, distributing, selling,

marketing, promoting, or otherwise exploiting Plaintiff’s Design or infringing the

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

and destroying the infringing materials and source thereof; and for an award of

costs and attorneys’ fees pursuant to 17 U.S.C. § 505.

3. On the SECOND CLAIM FOR RELIEF, for an award of actual

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

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

preliminarily and permanently enjoining Defendants, their officers, agents,

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

unfair competition; and for an award of costs and attorney’s fees pursuant to 15

U.S.C. §§ 1125(a) and 1117.

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

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

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

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

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


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and for an award of costs and attorney’s fees pursuant to 15 U.S.C. §§ 1125(a) and

1117.

5. On the FOURTH CLAIM FOR RELIEF for general and special

damages in an amount to be proven at trial, and for disgorgement by Defendants

of any and all profits or other consideration obtained by or earned by Defendants

as a proximate result of its unfair business practices in violation of California

Business and Professions Code 17200;

6. For prejudgment interest on the amount of the award to Plaintiff; and

7. For such other and further relief as the Court deems just and proper.

DEMAND FOR JURY TRIAL

Plaintiff hereby requests a jury trial on all issues raised in the Complaint.

DATED: October 28, 2015

LAW OFFICES OF JEFFREY L. DAVIDSON By: _/MAZ/____________________________

Mary A. Zachar, Esq. Attorney for Plaintiff, KIINI


kiini v. victoria's secret - bikinis.pdf

Documents

plaintiff kiini llc

kiini complaint

kiini design

kiini bikini

defendant victorias

copyright infringement

injunctive relief

trade dress infringement