Client Successes Sep 28, 2017

Fashion Design Copyright Infringement Victory

BB&K Partner Henry Welles Wins Fashion Industry Clothing IP Case

A fashion clothing industry copyright infringement appeal was won by Best Best & Krieger LLP Partner Henry Welles, who represented Natural Fashions, Inc., which does business as Anu. The case was originally brought in federal court in Sacramento, Calif. and the U.S. Ninth Circuit Court of Appeals affirmed the trial court decision last month.

BOK was infringing on three Anu copyrighted fabric patterns by making competing garments using substantially similar patterns. These are signature patterns used by Natural Fashions on its flowing and colorful clothing fashion line. Fashion clothing-related copyright infringement claims are limited to the patterns on the fabric. The form, cut and design of the clothing cannot be copyrighted — as they are functional elements of the product.

A magistrate judge originally sided with the defendant , finding that the patterns in question were different enough that there was no infringement, and finding that there was no personal jurisdiction over the Texas-based BOK in California.

Welles filed objections to the magistrate’s findings, and Chief Judge Morrison C. England, Jr. of the U.S. District Court for the Eastern District of California agreed that the substantially similar nature of the patterns did in fact constitute copyright infringement. England also found that there was personal jurisdiction over BOK in California because Welles had sent a cease and desist letter to BOK prior to filing suit. This placed BOK on notice that it was intentionally infringing upon a copyright owned by a California company. BOK’s continued infringement being directed at a California resident established the necessary minimum contacts for purposes of jurisdiction.

Judgment was entered in favor of Anu and BOK is prohibited from selling the infringing products, and is ordered to provide Natural Fashions with an inventory of all its infringing products, recall them from distributors and retailers, and hand them over to Natural Fashions for destruction. BOK must also pay more than $105,000 in damages and costs.

The case is Natural Fashions, Inc. v. Best of Kashmir, et al, No. 16-15825

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