UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA

Transcription

1 Case :-cv-0 Document Filed // Page of Page ID #: Stephen C. McArthur (State Bar No. ) stephen@smcarthurlaw.com Valerie McConnell (State Bar No. ) valerie@smcarthurlaw.com THE MCARTHUR LAW FIRM PC 00 W. Olympic Blvd. Suite 00 Los Angeles, CA 00 Telephone: () - Attorneys for Plaintiff FACE LACE LTD. UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA 0 0 Face Lace Ltd. a limited company Plaintiff, vs. Bare Escentuals, Inc. and DOES through 0, inclusive, Defendants. Case: :-cv-0 COMPLAINT FOR:. DIRECT COPYRIGHT INFRINGEMENT. LANHAM ACT TRADE DRESS INFRINGEMENT DEMAND FOR JURY TRIAL

2 Case :-cv-0 Document Filed // Page of Page ID #: 0 0 Plaintiff Face Lace Ltd. ( Face Lace or Plaintiff ) by and through its undersigned counsel, states as follows for its complaint against Defendant Bare Escentuals Inc. d/b/a Buxom Cosmetics (hereinafter Buxom ) and Does through 0, inclusive (collectively, the Defendants ) and alleges as follows: I. INTRODUCTION. This action arises out of Defendants intentional and willful decision to infringe Plaintiff s copyrighted Burlesque design. In addition, Plaintiff asserts a claim for trade dress infringement arising out of Defendant s infringement of the same Burlesque design pursuant to U.S.C. 0, et seq. (the Lanham Act ).. Plaintiff Face Lace Ltd. is a limited company registered in England and Wales that specializes in providing high quality ready-to-wear make up designs. Face Lace Ltd. s founder, Phyllis Cohen, is a London-based makeup artist and designer who was trained as a fashion illustrator at the prestigious ArtCenter College of Design in California and competed two fine art degrees at Goldsmith in London.. Ms. Cohen s illustrious career in the makeup and fashion industries has been featured in major publications and on television since the 0s.. Ms. Cohen has worked with David Bowie, Annie Lennox, Kylie Minogue, Pharrell Williams, Janet Jackson, and Tina Turner, among many others.. One of Ms. Cohen s most popular works is her Burlesque design, created in November 0. Burlesque is protected both as trade dress and as a copyright, as pictured below.

3 Case :-cv-0 Document Filed // Page of Page ID #: 0. The Burlesque design is best known for its use in Ms. Cohen s Face Lace product ( which features unique intricate designs that can be applied in a few seconds.. Without compensating Plaintiff or obtaining a license, Defendant Buxom illegally and intentionally misappropriated the Burlesque Design by wholly incorporating it into its own adhesive Eye Veil product (the Infringing Design ). This flagrant violation of Plaintiff s copyrighted work is shown below. Top: Ms. Cohen s Burlesque design Middle: Burlesque superimposed in red over Buxom s infringing copy, demonstrating the blatant copying of Ms. Cohen s design. Bottom: Buxom s infringing copy 0

4 Case :-cv-0 Document Filed // Page of Page ID #: 0 0. Accordingly, due to Defendants blatant and willful infringement, Plaintiff has no choice but to file this lawsuit seeking damages that it has suffered as a result of Defendants willful copyright and trade dress infringement. II. JURISDICTION AND VENUE. This Court has subject matter jurisdiction over this action pursuant to U.S.C. and. 0. Venue is proper before this Court pursuant to U.S.C. (b), which grants jurisdiction in a judicial district in which a substantial part of the events or omissions giving rise to the claim occurred, or a substantial part of the property that is the subject of the action is situated.. This Court has personal jurisdiction over the Defendants in that, among other things, the Defendants do business and reside in this District, Plaintiff resides in this district, Plaintiff does business in this District, and the Defendants committed tortious acts in this District. III. PARTIES. Plaintiff Face Lace Ltd. is a limited company registered in England and Wales with a principal place of business of Suite Pill Box, Coventry Road, London, E GG.. Upon information and belief, Defendant BUXOM is a Corporation organized under the laws of the state of Delaware with a business address of 00 rd Avenue, New York, NY 00.. Plaintiff is ignorant of the true names of the other Defendants sued herein as Does -0 and, therefore, sue these Doe Defendants by such fictitious names. Additional Doe Defendants are likely to include, among others, additional managers, officers, members, and other individuals who have authorized, condoned, directed, and participated in the decisions(s) to have Defendant Buxom infringe Plaintiff s rights. Plaintiff will amend this Complaint to allege additional

5 Case :-cv-0 Document Filed // Page of Page ID #: 0 0 Doe Defendants true names and capacities when ascertained. IV. FACTS. Ms. Cohen has been working in the makeup and fashion industries since the 0s and is a high demand fashion makeup artist, working on bespoke projects for Fashion Week, celebrities, and films.. Ms. Cohen s works are available for sale on her website, located at and can also be viewed on Instagram at where she has over,000 devoted followers. Plaintiff s work has also been featured in Style, Vogue, and in television shows such as The Voice and X factor. Time Out magazine listed Face Lace as an essential element for Halloween-Lovers.. In November 0, Ms. Cohen created Burlesque, it was sketched freehand several months before she created Face Lace. In February 0, the Burlesque design and Face Lace were debuted at London Fashion week.. The Burlesque design is protected by United States federal copyright, case number -, and trade dress, serial number, which have been assigned from Ms. Cohen to Plaintiff Face Lace Ltd.. Burlesque quickly became popular on Instagram and throughout the beauty and fashion industry. Since 0, numerous publications have featured stories on these unique works of design and how Ms. Cohen created a new look. Since then, Ms. Cohen s Face Lace designs have been worn by many celebrities such as Lady Gaga for her Super Bowl performance, Paloma Faith, Rita Ora, and Kesha.

6 Case :-cv-0 Document Filed // Page of Page ID #: 0. The infringing products can be found in several of the largest department stores and beauty chain retailers such as Ulta, Sephora, Nordstrom, Macys, and JC Penny. See for example: f0ce.jpeg?crop=pad&pad_color=fff&format=jpeg&w=0&h=& dpr=&quality=0 _fpx.tif?op_sharpen=&wid=00&hei=&fit=fit,&$filtersm$ 0 0. The holiday set can be viewed on Buxom s website at Upon information and belief, Buxom has also copied Burlesque for use in previous holiday sets as well.. There have been numerous instances of actual customer confusion, as evidenced below: I ll be honest, I received this pr package from buxom and 00% assumed it was a collaboration between face lace and them

7 Case :-cv-0 Document Filed // Page of Page ID #: Defendants must now answer for their infringing conduct, which will include an injunction barring all future use of any and all design or images incorporating Plaintiff s copyrights or trade dress, and granting Defendants profits and Plaintiff s actual damages, costs, attorneys fees, and punitive damages to Plaintiff. FIRST CAUSE OF ACTION Federal Copyright Infringement of Burlesque. Plaintiff repeats and re-alleges each and every allegation above as if fully set forth herein.. This Count arises under the Copyright Act of, Title United States Code 0 et seq.. Burlesque is a wholly original, creative work that constitutes

8 Case :-cv-0 Document Filed // Page of Page ID #: 0 0 copyrightable subject matter under the Copyright Act, U.S.C. 0 et seq. Plaintiff owns the exclusive rights and privileges in and to Burlesque, which is protected by a federal copyright, case number -.. By distribution, display and use of their Infringing Design, Defendants intentionally copied, displayed, and used Burlesque and created substantially similar derivate works of Burlesque. Defendants had access to Burlesque by virtue of its distribution online on Instagram and on Plaintiff s website, as well as through other social media sites and publications that have displayed Burlesque with Plaintiff s permission.. By their actions alleged above, Defendants have infringed Plaintiff s copyright in Burlesque by, inter alia, copying Burlesque, creating substantially similar derivate works of Burlesque, and publicly displaying and distributing the infringing design without any authorization or other permission from Plaintiff. Defendants have violated Plaintiff s exclusive rights under U.S.C Defendants are aware of Plaintiff s copyright in Burlesque and their copyright infringement has been deliberate and with willful disregard to Plaintiff s intellectual property rights.. Defendants have realized unjust profits, unjust enrichment, gains and advantages as a proximate result of their infringement in an amount not yet to be determined.. As a direct and proximate result of the Defendants willful copyright infringement, Plaintiff has suffered actual damages. Plaintiff is entitled to actual damages as well as any gains, profits, and advantages obtained by the Defendants as a result of its acts of infringement and their use and publication of the copied materials, U.S.C. 0(b).. Plaintiff is also entitled to prejudgment interest and full costs of suit pursuant to U.S.C. 0.

9 Case :-cv-0 Document Filed // Page of Page ID #: 0 0 SECOND CAUSE OF ACTION Trade Dress Infringement (Lanham Act). Plaintiff repeats and re-alleges each and every allegation above as if fully set forth herein.. Plaintiff has manufactured, advertised, distributed, marketed, promoted and offered the Burlesque design covered by Trade Dress serial number since early 0.. Plaintiff is informed and believes, and based thereon alleges, that several consumers recognize the features of Face Lace as coming from a unique source which is Plaintiff.. Plaintiff is informed and believes, and based thereon alleges, that Defendant's Infringing Eye Veil uses the look and feel of Plaintiff's Face Lace and is likely to cause confusion as to the source of the with Plaintiff s Face Lace.. Plaintiff is informed and believes, and based thereon alleges, that Defendant knew of the considerable commercial success of Plaintiff's Face Lace and that Defendant willfully used the look and feel of Plaintiff's Face Lace trade dress in connection with the sale, offering for sale, distribution and/or advertising of the Infringing Design in a manner likely to cause confusion, or to cause mistake, or to deceive customers that Defendant's Infringing Designs are from Plaintiff or otherwise associated with or authorized by Plaintiffs.. Defendant's conduct described above constitutes trade dress infringement in violation of, for example, U.S.C.. 0. The actions of Defendant, if not enjoined, will continue. Plaintiffs have suffered and continue to suffer damages in an amount to be proven at trial. Plaintiffs are further entitled to injunctive relief to prevent Defendant's infringement.. Pursuant to U.S.C.,, and, Plaintiffs are entitled to recover damages, profits made by Defendant and the costs of this action

10 Case :-cv-0 Document Filed // Page 0 of Page ID #:0 0 PRAYER FOR RELIEF WHEREFORE, Plaintiff demands a judgment against Defendants and pray that this Court grants: a. Permanent injunctive relief against all Defendants and their parents, subsidiaries, affiliated companies, and their respective officers, directors, employees, and agents from using Plaintiff s trade dress and copyrights; b. An award of statutory damages and attorney s fees; c. An accounting of, and disgorgement of, any and all profits derived by Defendants; d. Punitive and exemplary damages; e. All actual damages sustained by Plaintiff, in an amount to be determined at trial; f. A judgment that Defendants infringement was willful; g. Prejudgment interest and costs of this action pursuant to U.S.C. 0; h. Other economic and consequential damages in an amount to be determined at trial; and i. Grant to Plaintiff such further relief as may be equitable and proper. 0 By: Dated: December, 0 Respectfully submitted, /s/ Stephen McArthur Stephen Charles McArthur Valerie McConnell The McArthur Law Firm, PC Attorneys for Plaintiff, Face Lace 00 W. Olympic Blvd, Suite 00 Los Angeles, CA 00 () - 0

11 Case :-cv-0 Document Filed // Page of Page ID #: DEMAND FOR JURY TRIAL Plaintiff hereby demands a jury trial pursuant to Rule of the Federal Rules of Civil Procedure as to all issues in this lawsuit. 0 0 By: Dated: December, 0 /s/ Stephen McArthur Stephen Charles McArthur Valerie McConnell The McArthur Law Firm, PC Attorneys for Plaintiff, Face Lace 00 W. Olympic Blvd, Suite 00 Los Angeles, CA 00 () -