Case 2:22-cv-07347 Document 1 Filed 10/10/22 Page 1 of 8 Page ID #:1
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`Stephen M. Doniger (SBN 179314)
`stephen@donigerlawfirm.com
`Trevor W. Barrett (SBN 287174)
`tbarrett@donigerlawfirm.com
`Kelsey Schultz (SBN 328159)
`kschultz@donigerlawfirm.com
`DONIGER / BURROUGHS
`603 Rose Avenue
`Venice California 90291
`Telephone: (310) 590-1820
`Attorneys for Plaintiff
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`Case No.:
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`CARIBBEAN BLUES, INC., doing business
`as “EKB TEXTILES,” a California
`Corporation,
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`Plaintiff,
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`v.
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`ZULILY, LLC, a Delaware limited liability
`company, and DOES 1-10,
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`Defendants.
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` PLAINTIFF’S COMPLAINT FOR
`COPYRIGHT INFRINGEMENT
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` Jury Trial Demanded
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`Case 2:22-cv-07347 Document 1 Filed 10/10/22 Page 2 of 8 Page ID #:2
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`This Court has federal question jurisdiction under 28 U.S.C. §§ 1331 and
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`CARIBBEAN BLUES, INC., doing business as “EKB Textiles” (“Plaintiff” or
`“EKB”), by and through its undersigned attorneys, hereby prays to this honorable
`Court for relief based on the following:
`JURISDICTION AND VENUE
`This action arises under the Copyright Act of 1976, Title 17 U.S.C., § 101
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`et seq.
`2.
`1338 (a)
`3.
`Venue in this judicial district is proper under 28 U.S.C. §§ 1391(c) and
`1400(a) in that this is the judicial district in which a substantial part of the acts and
`omissions giving rise to the claims occurred.
`PARTIES
`4.
`Plaintiff is a corporation organized and existing under the laws of the
`State of California with its principal place of business located at 777 E Washington
`Blvd., Los Angeles, CA 90021.
`5.
`Plaintiff is informed and believes and thereon alleges that Defendant
`ZULILY, LLC, (“ZULILY”), doing business as “ZULILY” is a Delaware limited
`liability company with its principal place of business located at 300 Deschutes Way
`SW, Suite 304, Tumwater, WA 98501, and is doing business with the State of
`California.
`6.
`Plaintiff is informed and believes and thereon alleges that Defendant
`ZULILY owns and operates https://www.zulily.com.
`7.
`Plaintiff is informed and believes and thereon alleges that Defendants
`DOES 1 through 10, inclusive, are other parties not yet identified who have infringed
`Plaintiff’s copyrights, have contributed to the infringement of Plaintiff’s copyrights,
`or have engaged in one or more of the wrongful practices alleged herein. The true
`names, whether corporate, individual or otherwise, of Defendants 1 through 10,
`inclusive, are presently unknown to Plaintiff, which therefore sues said Defendants
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`Case 2:22-cv-07347 Document 1 Filed 10/10/22 Page 3 of 8 Page ID #:3
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`by such fictitious names, and will seek leave to amend this Complaint to show their
`true names and capacities when same have been ascertained.
`8.
`Plaintiff is informed and believes and thereon alleges that at all times
`relevant hereto each of the Defendants was the agent, affiliate, officer, director,
`manager, principal, alter-ego, and/or employee of the remaining Defendants and was
`at all times acting within the scope of such agency, affiliation, alter-ego relationship
`and/or employment; and actively participated in or subsequently ratified and/or
`adopted each of the acts or conduct alleged, with full knowledge of all the facts and
`circumstances, including, but not limited to, full knowledge of each violation of
`Plaintiff’s rights and the damages to Plaintiff proximately caused thereby.
`9.
`ZULILY and Does 1-10 will collectively be referred to as “Defendants”
`herein.
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`CLAIMS RELATED TO EKB DESIGN # 9383
`10.
`Plaintiff owns an original two-dimensional artwork used for purposes of
`textile printing entitled EKB Design # 9383 (the “Subject Design”) which has been
`registered with the United States Copyright Office under Registration No. VA 2-114-
`907.
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`11.
`Prior to the acts complained of herein, Plaintiff widely disseminated
`fabric bearing the Subject Design to numerous parties in the fashion and apparel
`industries.
`12.
`Plaintiff is informed and believes and thereon alleges that following its
`distribution of the Subject Design, Plaintiff learned that Defendants created, sold,
`manufactured, caused to be manufactured, imported and/or distributed fabric and/or
`garments comprised of fabric featuring unauthorized reproductions of the Subject
`Design or designs which are substantially similar to the Subject Design (hereinafter
`“Offending Products”). Offending Products includes but are not limited to the
`garments sold by ZULILY, under SKU ROMANTICHUT_TOM1025-
`P_PRINTING_S, bearing the label “Romantichut” as shown in the below screen
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`Case 2:22-cv-07347 Document 1 Filed 10/10/22 Page 4 of 8 Page ID #:4
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`13.
`Indeed, this is not the first time ZULILY has infringed the Subject
`Design. On or about November 3, 2020, counsel for EKB sent a cease-and-desist
`demand to ZULILY after purchasing garments bearing the same illicit reproductions
`of the Subject Design that are at issue in this case. The parties reached a confidential
`settlement of that matter with an effective date of January 13, 2021. Importantly, no
`license or authorization for future sales was here was provided as part of that
`resolution. Thus, Plaintiff believes and alleges that the infringement at issue was
`committed with actual knowledge of Plaintiff’s rights such that said acts of copyright
`infringement were, and are willful.
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`Case 2:22-cv-07347 Document 1 Filed 10/10/22 Page 5 of 8 Page ID #:5
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`14. A representative image of the Subject Design and a detailed exemplar of
`Offending Products are set forth below:
`Subject Design:
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`Offending Product:
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`Case 2:22-cv-07347 Document 1 Filed 10/10/22 Page 6 of 8 Page ID #:6
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`FIRST CLAIM FOR RELIEF
`(For Copyright Infringement - Against All Defendants, and Each)
`15.
` Plaintiff repeats, realleges and incorporates herein by reference as
`though fully set forth the allegations contained in the preceding paragraphs of this
`Complaint.
`16. Plaintiff is informed and believes and thereon alleges that Defendants,
`and each of them, had access to the Subject Design, including, without limitation,
`through (a) access to Plaintiff’s showroom, strike offs, and/or design library; (b)
`access to illegally distributed copies of the Subject Design by third-party vendors
`and/or DOE Defendants, including without limitation international and/or overseas
`converters and printing mills; and/or (c) access to garments in the marketplace
`manufactured with lawfully printed fabric bearing the Subject Design.
`17.
` Plaintiff is informed and believes and thereon alleges that one or more
`of the Defendants manufactures garments and/or is a garment vendor. Plaintiff is
`further informed and believes and thereon alleges that said Defendant(s), and each of
`them, has an ongoing business relationship with Defendant retailers, and each of
`them, and supplied garments to said retailers, which garments infringed the Subject
`Design in that said garments were composed of fabric which featured unauthorized
`print designs that were identical or substantially similar to the Subject Design, or
`were an illegal modification thereof.
`18.
` Plaintiff is informed and believes and thereon alleges that Defendants,
`and each of them, infringed Plaintiff’s copyright by creating, making and/or
`developing directly infringing and/or derivative works from the Subject Design and
`by producing, distributing and/or selling Subject Products through a nationwide
`network of retail stores, catalogues, and through on-line websites.
`19. Due to Defendants’, and each of their, acts of infringement, Plaintiff has
`suffered damages in an amount to be established at trial.
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`Case 2:22-cv-07347 Document 1 Filed 10/10/22 Page 7 of 8 Page ID #:7
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`20.
` Due to Defendants’, and each of their, acts of copyright infringement as
`alleged herein, Defendants, and each of them, have obtained profits they would not
`otherwise have realized but for their infringement of the Subject Design. As such,
`Plaintiff is entitled to disgorgement of Defendants’, and each of their, profits
`attributable to the infringement of the Subject Design in an amount to be established
`at trial, or in the alternative statutory damages.
`21. And this is not the first time ZULILY has infringed the Subject Design.
`On or about November 3, 2020, counsel for EKB sent a cease-and-desist demand to
`ZULILY after purchasing garments bearing the same illicit reproductions of the
`Subject Design that are at issue in this case. The parties reached a confidential
`settlement of that matter with an effective date of January 13, 2021. Importantly, no
`license or authorization for future sales was here was provided as part of that
`resolution. Thus, Plaintiff believes and alleges that the infringement at issue was
`committed with actual knowledge of Plaintiff’s rights such that said acts of copyright
`infringement were, and are willful.
`PRAYER FOR RELIEF
`Wherefore, Plaintiff prays for judgment as follows:
`a. That Defendants, their agents and employees be enjoined from
`infringing Plaintiff’s copyrights in any manner, specifically those for the
`Subject Design;
`b. That Plaintiff be awarded all profits of Defendants plus all losses of
`Plaintiff, plus any other monetary advantage gained by the Defendants
`through their infringement, the exact sum to be proven at the time of
`trial, or, if elected before final judgment, statutory damages as available
`under the Copyright Act, 17 U.S.C. § 505 et seq.;
`c. That a trust be imposed over the revenues derived by Defendants, and
`each of them, through the sales or distribution of the product at issue;
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`Case 2:22-cv-07347 Document 1 Filed 10/10/22 Page 8 of 8 Page ID #:8
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`d. That Plaintiff be awarded its attorneys’ fees as available under the
`Copyright Act, 17 U.S.C. § 505 et seq.;
`e. That Defendants, and each of them, account to Plaintiff for their profits
`and any damages sustained by Plaintiff arising from the foregoing acts
`of infringement;
`f. That Plaintiff be awarded pre-judgment interest as allowed by law;
`g. That Plaintiff be awarded the costs of this action; and
`h. That Plaintiff be awarded such further legal and equitable relief as the
`Court deems proper.
`Plaintiff demands a jury trial on all issues so triable pursuant to Fed. R. Civ. P.
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`38 and the 7th Amendment to the United States Constitution.
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`Dated: October 10, 2022
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`Respectfully submitted,
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`By: /s/ Stephen M Doniger
`Stephen M. Doniger, Esq.
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`Kelsey M. Schultz, Esq.
`DONIGER / BURROUGHS
`Attorneys for Plaintiff
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