Case 1:13-cv-01502-RRM-JMA Document 1 Filed 03/21/13 Page 1 of 14 PageID #: 1
UNITED STATES DISTRICT COURT
EASTERN DISTRICT OF NEW YORK ------------------------------------------------------------------)( Smashing Starlets LLC and Haleh Nematzadeh, -------=1=---5 o 2 Plaintiffs, -against- Complaint and Jury Demand Opening Ceremony, LLC, Yoko Ono, John J Does 1-10, )(YZ Corporations 1-10. KUv , . Defendants. -:, . --- )( - . -j --; - l i . '"-' Smashing Starlets LLC and Haleh Nematzadeh (collectively referred to '''Plain- tiff') by and through Plaintiffs attorneys, The Aboushi Law Firm, PLLC, and for Plaintiffs causes of action against the above-named Defendants, states as follows: INTRODUCTION This case is about a Yoko Ono and multi-million dollar fashion company who to- gether stole the designs of an up and coming designer and pawned them otT as their own. It involves the theft by the Defendants of the Plaintiff's unique and cutting edge clothing designs. The Defendants willfully and intentionally copied all of the Plaintiff's designs and presented them as their own collection issued by the Defendants. Defendants' tortious and illegal conduct allowed them to reap millions of dollars in sales, good will, and pub- licity. JURISDICTION AND VENUE I. This is an action for copyright infringement arising under the Copyright Act of 1976, 17 U.S.C.A. I 01 et seq. (the "Copyright Act") and other related causes of Case 1:13-cv-01502-RRM-JMA Document 1 Filed 03/21/13 Page 2 of 14 PageID #: 2 action. 2. This court has exclusive jurisdiction over this action pursuant to 28 U.S.C.A. 1338(a) and original jurisdiction under 28 U.S.C.A. 1331. 3. This court also has jurisdiction pursuant to 28 U.S.C.A. 1338(b ), and under its supplemental jurisdiction over pendent claims. 4. Venue is proper pursuant to 28 U.S.C.A. 1391 and 1400. PARTIES 5. Plaintiff, Smashing Starlets LLC is a limited-liability company, with its principal place ofbusiness in Brooklyn, New York. 6. Plaintiff Haleh Nematzadeh is an up and coming designer who resides in Brooklyn, New York. 7. Defendant Opening Ceremony ("OC'), upon information and belief, is a California Corporation with its principal place of business in New York, NY that generates millions of dollars per year in retail sales. 8. Defendant Yoko Ono ("Ono") upon information and belief, is a resident ofNew York, NY. 9. John and Jane Does 1-10 represents Defendants whose identity is not yet known to the Plaintiffs. I 0. XYZ Corporations I- I 0 represents Defendant corporations whose identity is not yet known to the Plaintiffs. 11. Defendants Opening Ceremony and Ono are collectively referred to in this Com- plaint as "Defendants." Case 1:13-cv-01502-RRM-JMA Document 1 Filed 03/21/13 Page 3 of 14 PageID #: 3 BACKGROUND AND FACTUAL ALLEGATIONS APPLICABLE TO ALL CAUSES OF ACTION 12. Plaintiff is engaged in the business of creating, composing, producing, distributing, publishing and marketing unique designs applied to clothing and accessories. 13. Plaintiff is the copyright proprietor of a unique clothing collection named "Gonna Walk the Night" (herein referred to as the "Collection") and an application has been filed with, and was registered by, the United States Copyright Office under regis- tration number VA0001849755. 14. Plaintiff's Collection was created by Plaintiffs' own skill, labor and judgment, and is copyrightable subject matter under the laws of the United States. 15. Plaintiff was introduced to photographers working for OCto do a photo shoot of the Collection in July 2012. 16. The intention was to photograph Plaintiffs Collection so that it may be featured for sale in OC's catalog and stores worldwide. 17. Plaintiff agreed to show the sketches and pictures of the Collection to OC's pho- tographers. Moreover, Plaintiff shared her vision, intention, ideas, and inspiration with OC's photographers. 18. After the OC photographers saw Plaintitrs sketches and pictures, they cancelled the photo shoot. 19. Plaintiff attempted to reschedule the photo shoot but OC's photographers refused to do so, stating that they had other projects to work on. 20. Plaintiff nonetheless had another photographer shoot the Collection. Case 1:13-cv-01502-RRM-JMA Document 1 Filed 03/21/13 Page 4 of 14 PageID #: 4 -- ~ 21. Plaintiff published the Collection on or about October 2012. Defendant knew that Plaintiff published her collection. 22. The Collection contains a series of clothing designs that were worn by women. 23. Soon after the Plaintiff launched the Collection, within which her designs were published, the Defendants published an identical collection ("Offending Collec- tion"). The offending collection copied exact designs as well as imitated the de- signs and concepts from Plaintiff's Collection. The Defendants did not have Plaintiff's permission to copy, replicate, or reproduce the Collection. 24. The offending collection was offered for sale in New York and worldwide, and was purchased by many consumers in New York. 25.1n order to conceal their thievery ofPlaintift"s Collection, Defendants renamed the collection and called it a collection for men. 26. Despite Defendants' feeble attempt at disguising the unlawful use ofPlaintift"s Collection, it is clear that Defendants' copied Plaintiff's design. 27. One piece ofthe Collection, for example, is a bra like design. 28. Defendants copied this design and used a male to model it. 29. The ridiculousness of this farce stands on its face. 30. It is the same design as Plaintiffs bra design but used on a male. 31. What is more, Defendant Ono admitted that the designs used by the Defendants were novel territory because while the offending collection was allegedly geared for men, this was the first time Ono has ever designed clothing for men. 32. Indeed, the offending collection was nothing more than a rip off of Plaintiff's Case 1:13-cv-01502-RRM-JMA Document 1 Filed 03/21/13 Page 5 of 14 PageID #: 5 Collection. 33. Defendants tried to cover up the theft by the offending collection a "mens" collec- tion and utilizing males to model the clothing. 34. Defendants represented to consumers, the public, and the media that they created the designs on the clothing. 35. In fact, the designs were that of the Plaintiff. 36. Defendants' theft ofPlaintiff's design has caused them to reap millions of dollars in sales, publicity, and notoriety. 37. The fashion industry heralded the Defendants' offending collection as cutting edge, brilliant, and genius. 38. The offending collection, however, was Plaintiff's Collection. 39. In no uncertain terms, Defendants copied Plaintiffs design. 40. Upon information and belief, the scheduled photo shoot with OC's photographers was nothing more than a ruse to gain access to Plaintiff's confidential and propriety designs and sketches. 41. Once OC's photographers gained access, they usurped the designs and sketches for the unlawful benefit of Defendants. 42. After the launch of the offending collection, Defendant Ono even posed for pictures showing her sketching the designs. 43. Defendant Ono full well knew the photo opportunity was a sham as she did not design the offending collection and full well knew Plaintiff designed and created it. 44. When the Defendants launched the offending collection, Defendant OC boasted: Case 1:13-cv-01502-RRM-JMA Document 1 Filed 03/21/13 Page 6 of 14 PageID #: 6 "In 1969, YOKO ONO presented John Lennon with a series of sketches as a wedding gift. The illustrations were designs for clothing and accessories intended to celebrate John's "hot bod." As ONO explains, "I was inspired to create 'Fashion for Men,' [because I was] amazed at how my man was looking so great. I felt it was a pity if we could not make clothes emphasizing his very sexy bod." This season, 48 years after John and ONO's wedding, ONO and Opening Ceremony have worked together to bring her sketches to 1 ife!" http://www. openingceremony. us/entry. asp?pid=6993 45. Defendants full well knew that the foregoing statement was completely false and that the designs were created by and belong to, the Plaintiff. 46. The above-described unauthorized actions is an act of copyright infringement, in violation of the Copyright Act, as amended, including, but not limited to, 17 U.S.C.A. 106, and is therefore unlawful. 47. Moreover, each such unauthorized action was committed willfully. 48. The above-described actions ofDetendants have served to usurp Plaintiffs exclu- sive right to determine whether, when, and under what terms the Collection would be used for commercial purposes. 49.1n addition, the unlawful actions of Defendants have materially diminished the fu- ture value of the Collection should Plaintiff wish to make it available for future commercial opportunities. 50. Defendants' actions caused the Plaintiff to miss an entire season of commercial viability for her Collection. Case 1:13-cv-01502-RRM-JMA Document 1 Filed 03/21/13 Page 7 of 14 PageID #: 7 - ....., COUNT I. FEDERAL COPYRIGHT INFRINGEMENT (17 U.S.C.A. 101 et seq.) 51. Plaintiff incorporates by reference all paragraphs of this Complaint as if fully re- alleged and restated here in this Complaint. 52. Plaintiff is the lawful and sole proprietor of the copyright to the Collection. 53. Defendants have not been granted a license to reproduce, distribute, publicly per- form, or in any way use, compile, or exploit the Collection by Plaintiff. 54. As alleged above, Defendants have had access to, and have illegally copied sub- stantial parts, if not all of, the Collection. 55. Defendants have distributed, reproduced, publicly usurped, made available, and placed into the stream of commerce illegal copies of the Collection and its designs. 56. Plaintiff is entitled to an injunction restraining Defendants, their agents and em- ployees and all persons acting in concert with them, from engaging in any further acts in violation of the copyright laws and infringements of Plaintiffs rights under the copyright laws. 57. Defendants' direct and willful acts of infringement have and will cause irreparable harm to unless such conduct is preliminarily and permanently enjoined, since the reproduction and distribution of the Collection has a special and unique value in the fashion industry. 58. Plaintiff is further entitled to recover from Defendants the damages, including at- torney's tees, sustained and that will be sustained, and any gains, profits, and ad- vantages obtained by Defendants as a result of Defendants' acts of infringement Case 1:13-cv-01502-RRM-JMA Document 1 Filed 03/21/13 Page 8 of 14 PageID #: 8 alleged above. 59. At present, the amount of such damages, gains, profits, and advantages cannot be fully ascertained by Plaintiff, but are reasonably believed to exceed $10,000,000. 60. Plaintiff has no adequate remedy at law for Defendants' wrongful conduct for the reason that: (a) plaintiff's copyrights are unique and valuable property that have no readily determinable market value; (b) the infringement by Defendants constitutes an interference with Plaintiff's good will and contractual relationships; and (c) Defendants' wrongful conduct, and the damages resulting to plaintiff from such wrongful conduct, is continuing. Defendants' acts of copyright infringement have caused Plaintiff irreparable injury and Defendants have the ability to continue to commit these acts. 61. Accordingly, Plaintiff' is entitled to damages as well as to injunctive relief pursuant to 17 U.S.CA 502, and to an order under 17 U.S.C.A. 503 that the infringing products be impounded. COUNT IL UNFAIR COMPETITION 62. Plaintiff incorporates by reference all paragraphs of this Complaint as if fully re- alleged and restated here in this Complaint 63. Defendants' wrongful acts of unfair competition consist of utilizing the Collection for the specific purpose of creating the false impression that Plaintiff has endorsed Defendant's collection. 64. Defendants, by imitation or unfair device, have induced the general public to be- lieve that they had the right to distribute and use the Collection and/or that Plaintiff Case 1:13-cv-01502-RRM-JMA Document 1 Filed 03/21/13 Page 9 of 14 PageID #: 9 "-" commercially endorse their products. - 65. Defendants have received and obtained substantial gains, profits, advantages, and benefits that Plaintiff rightfully deserves, by reason of their wrongful acts of unfair competition. 66. Defendants, by way of their wrongful acts of unfair competition, have appropriated to themselves the value of the reputation that Plaintiff has acquired by way of their creation, production, and publication of the Collection. 67. A natural, probable, and foreseeable consequence of the Defendants' wrongful acts of unfair competition resulted in substantial deception to the general public. 68. Defendants' wrongful acts constitute unfair competition under the laws of New York. 69. Plaintiff is entitled to recover from Defendants the monetary damages suffered by Plaintiff as a result of Defendants' wrongful acts of unfair competition. 70. Plaintiff is further entitled to recover from Defendants the gains, profits, ad- vantages, and benefits Defendants have received and obtained as a result of the unfair acts of unfair competition. 71. Defendants have acted intentionally, recklessly, willfully, and in bad faith, and plaintiff is therefore entitled to exemplary damages because of Defendants' wrongful acts of unfair competition. Case 1:13-cv-01502-RRM-JMA Document 1 Filed 03/21/13 Page 10 of 14 PageID #: 10 - - COUNT III. UNJUST ENRICHMENT 72. Plaintiff incorporates by reference all paragraphs of this Complaint as if fully re- alleged and restated here in this Complaint. 73. Defendants have received and obtained substantial gains, advantages, and benefits by creating the false impression that Plaintiff has endorsed Defendant's offending collection. 74. Moreover, Defendants reaped the benefits of Plaintiffs toil in creating the Collec- tion. 75. It is inequitable and unjust for the Defendants to retain those gains, advantages, and benefits. 76. Defendants have enriched themselves at the expense and to the detriment of Plain- tifT. 77. To the extent Defendants inferred a false endorsement of their goods and services by Plaintiff, Plaintiff has conferred a benefit on Defendants. 78. To the extent Defendants exploit Plaintiffs Collection as their own, Defendants have retained such benefit without adequately compensating Plaintiff for the bene- fit. 79. Defendants should not in equity and good conscience be permitted to retain the benefit bestowed on them by Plaintiff 80. As a result of the retention of the benefit, Defendants have been unjustly enriched and are jointly and severally liable to Plaintiff 81 . As a result of the unjust enrichment of Defendants, Plaintiff has incurred damages Case 1:13-cv-01502-RRM-JMA Document 1 Filed 03/21/13 Page 11 of 14 PageID #: 11 - in an amount to be determined at trial, plus applicable interest, attorney's fees, and costs. 82. Plaintiff is entitled to receive and obtain from the Defendants the reasonable value of an endorsement by Plaintiff. Count IV-Violation of New York GBL Section 349 83. Plaintiff incorporates by reference all paragraphs of this Complaint as if fully re- alleged and restated here in this Complaint. 84. Defendants falsely claimed to residents of the State ofNew York, and the World, in an incalculable number of articles and press events that John Lennon inspired the offending collection. 85. This misrepresentation had the sole purpose of deceiving the public into thinking that Plaintiff's Collection belonged to Yoko Ono, and was inspired by Jon Lennon. 86. The Defendants' goal in their misrepresentation was to deceive the public into buying the offending collection. 87. Because of these and other misrepresentations discussed in the Complaint, the Defendants cheated New York consumers into buying the fraud that is the offending collection. 88. Such deceptive practices were calculated, premeditated, and aimed at deceiving the public as a whole simply to enrich the Defendants. 89. Indeed, the lore of John Lennon, and any product associated with him, has always inspired voracious commercial activity when it otherwise would not exist. 90. Defendants created a market for the offending collection by falsely associating it Case 1:13-cv-01502-RRM-JMA Document 1 Filed 03/21/13 Page 12 of 14 PageID #: 12 - - with John Lennon. 91. The materially misleading association with John Lennon enriched the defendants millions of dollars at the expense of the unsuspecting public. 92. Plaintiff and the Public were harmed by fraud perpetrated by the Defendants. 93. Amongst other things, Plaintiff had her Collection counterfeited and the public was duped out of their money. 94. Moreover, the public is deprived from the opportunity to make an informed and free will based decision on whether or not they would purchase the offending collection absent the false connection to John Lennon. 95. Consumers no doubt relied on these misrepresentations in purchasing the offending collection. Count V-Violation of New York GBL Section 350 96. Plaintiff incorporates by reference all paragraphs of this Complaint as if fully re- alleged and restated here in this Complaint. REQUEST FOR RELIEF WHEREFORE, Plaintiff respectfully requests that this court enter a final judgment in Plaintiffs favor and against the Defendants, jointly and severally, as follows: 1. The court find that Defendants have infringed on Plaintiffs copyright in the Com- position; 2. Defendants, their agents, employees, and all other persons in active concert or privity or in participation with them, be enjoined from directly or indirectly infringing Plain- tift's copyright in the Collection or from continuing to market, offer, sell, dispose of, Case 1:13-cv-01502-RRM-JMA Document 1 Filed 03/21/13 Page 13 of 14 PageID #: 13 license, lease, transfer, display, advertise, reproduce, develop, or manufacture any works derived, copied, and/or sampled from the Collection, in whatever medium, or to participate or assist in any such activity; 3. This court order Defendants, and all their representatives, agents, servants, em- ployees, officers, directors, partners, attorneys, subsidiaries, and all persons under their control or acting in active concert or participation with them, to immediately post a notice on the Web site of each Defendant stating that the prior use of the Collection was unauthorized and illegal; 4. This court order that Defendants, their affiliates and licensees, immediately cease and desist from any further recording, reproduction, distribution, transmission, or other use of the Collection; 5. Defendants be enjoined and ordered to deliver on oath, to be impounded during the pendency ofthis action and destroyed pursuant to judgment in this action, all originals, copies, or duplicates of any work shown by the evidence to infringe any copyright in the Collection; 6. Judgment be entered for Plaintiff and against Defendants for Plaintiff's actual damages and for any profits attributable to infringements of Plaintiff's copyright in the Collection, pursuant to the Copyright Act of 1976, 17 U.S.C.A. 101 et seq.; 7. Judgment be entered for Plaintiff and against Defendants for statutory damages based on Defendants' acts of infringement, pursuant to the Copyright Act of 1976, 17 U.S.C.A. 101 et seq., including 17 U.S.C.A. 504(8) and/or (C)(l) and (2), an election to be made during the pendency of this action; Case 1:13-cv-01502-RRM-JMA Document 1 Filed 03/21/13 Page 14 of 14 PageID #: 14 - 8. Judgment be entered for Plaintiff and against Defendants for Plaintiff's actual damages and for any profits attributable to infringements of Plaintiffs rights, including attorney's fees and costs of suit; 9. All gains, profits, and advantages derived by Defendants from their acts of in- fringement and other violations of law be deemed to be held in constructive trust for the benefit of Plaintiff; I 0. Defendants be ordered to furnish to Plaintiff a complete and accurate accounting of all profits earned in connection with their use of the offending collection; and II. The court grant such other, further, and different relief as the court deems just, proper, and equitable under the circumstances. Dated: March 20,2013 The Aboushi Law Firm s/Aymen A Aboushi, Aymen A Aboushi, Esq. EDNY Bar ID: AA5804 1441 Broadway, 5 1 h Floor New York, NY 10018 Tel: 646-569-5544 Fax: 646-417-7191 Email: Aymen@Aboushi.com www.Aboushi.com