Fashion retailer Zara—which is often accused of copying other brands' designs—has now filed its own copyright infringement lawsuit against a fellow fashion brand.  Zara and its parent company Inditex filed the federal lawsuit in the Southern District of New York against Thilikó and its owner Queenie Williams, seeking injunctive relief and damages.  In the complaint, the fashion retailer alleges copyright infringement and much more, accusing the defendants of being “serial copyright infringers” engaged in a “massive scam” and “defrauding the public”.  It’s an interesting case in the world of fashion law.  Here’s a summary.

The Allegations

According to Zara’s complaint, Thilikó holds itself out as an independent fashion brand dedicated to social responsibility, thoughtful craftmanship, and sustainable manufacturing practices, that sells its clothing on its own website and other e-commerce boutiques.  However, Zara alleges that this couldn’t be further from the truth.  Instead, Zara claims that Thilikó and its owner purchase Zara clothing, remove the labels/tags from the clothing, and replace them with Thilikó-branded tags and labels.  Zara further alleges that Thilikó and its owner then copy the copyrighted photographs of the mis-labeled garments from Zara’s website, using those exact same photographs to post on the Thilikó website in order to sell the garments, which it does at a high markup.  Numerous examples of this alleged copying are included in exhibits to the complaint.

Zara asserts six claims in its complaint—three under federal law, and three under state law.  First, Zara asserts a claim for copyright infringement, based on its allegations that Thilikó copied Zara’s copyrighted photographs.  Second, Zara alleges that Thilikó made false and misleading statements in their commercial advertising and promotion of the goods at issue.  Third, Zara asserts a claim for federal unfair competition, false description and false designation of origin under the Lanham Act arising from the defendants’ removal of the Zara-identifying labels and attachment of Thilikó labels.  Zara’s fourth, fifth, and sixth claims are for unfair and deceptive trade practices, false advertising, and offenses against trademarks, all under New York state law.

Takeaway

While copyright protection for fashion designs is often limited, and copyright infringement cases in which a party alleges its fashion designs were copied are difficult to win, this case stands out because Zara is alleging, among other things, that another company copied its actual photographs.  Photographs are "pictorial, graphic, and sculptural works" and are protectable under the Copyright Act of 1976.

Stay tuned and watch this space for updates on this case.  The case is Industria de Diseño Textil S.A., et al. re Thilikó LLC et al., S.D.N.Y., Case No. 1:23-cv-00047-JPC.