Anna Kosturova v. Muche Et Muchette PDF

Case 2:15-cv-00620 Document 1 Filed 01/27/15 Page 1 of 17 Page ID #:1
1 ERIKSON LAW GROUP

David Alden Erikson (SBN 189838)
2 david@daviderikson.com
S. Ryan Patterson (SBN 279474)
3 ryan@daviderikson.com
200 North Larchmont Boulevard
4 Los Angeles, California 90004
Telephone: 323.465.3100
5 Facsimile: 323.465.3177
6 Attorneys for Plaintiffs
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UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION
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11 ANNA KOSTUROVA LUCID DESIGN,
INC., a Canadian corporation
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Plaintiff,
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v.
14
MUCHE ET MUCHETTE, LLC, a Florida
15 limited liability company; and DOES 1-10,
inclusive,
16
Defendants.
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Case No.
COMPLAINT FOR DAMAGES AND
INJUNCTIVE RELIEF FOR COPYRIGHT
INFRINGEMENT, VIOLATION OF THE
LANHAM ACT, UNFAIR
COMPETITION, AND NEGLIGENCE
DEMAND FOR JURY TRIAL
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Plaintiff ANNA KOSTUROVA LUCID DESIGN, INC. (Kosturova) hereby complains
22 against Defendant MUCHE ET MUCHETTE, LLC (Muche), and Does 1-10 inclusive;
23 (collectively referred to as Defendants) as follows.
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1
2
SUMMARY OF THE CASE

1.
Below left is an image of a garment made by Plaintiff Kosturova, a swimwear
3 designer that specializes in original crocheted patterns. Below right is an image of a garment later
4 made by Defendant Muche et Muchette. As one can see, the garments are more or less identical,
5 and this is all the more stunning when holding the two in ones hands.
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2.
Kosturovas garment is called the Fringe Maxi Kimono, and is one of several
pieces that Kosturova has produced featuring the original Summer Diamonds pattern (the
Pattern) designed in 2011by the companys founder Anna Kosturova. This particular piece has
been a staple of Kosturovas line for years, and the Pattern has become a signature design for
which Kosturova is well known. The Pattern has been used on a variety of garments, ranging from
scarves and sarongs, to skirts and topseach of which have been among Kosturovas most
popular signature pieces.
3.
Muches version, called the Gaby Long Cover Up O/S, is one of several
inexpensive imitations produced by the Defendant. Others include the Gaby Long Cover Up
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1 (without knotted tassels on the sleeves); and the Chelsea Crochet Vest (without sleeves). The
2 Chelsea Crochet Vest is sold exclusively by the popular juniors retailer Free Peoplea
3 customer of Kosturovas that has previously sold items featuring Kosturovas signature Summer
4 Diamonds pattern. Below left are three images of Kosturova garments sold by Free People in
5 2012 that feature the Pattern. Below right are two images taken from Free Peoples website today
6 showing Defendants Chelsea Crochet Vest, currently available for $69.95.
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4.
As the photos above demonstrate, this case is not about Muche making and selling
20 a close copy. Muche has actually done something far worse in selling its knockoff version. Like
21 many of its pieces, Kosturovas Fringe Maxi Kimono incorporates certain signature design
22 elements, which are immediately recognizable to target consumers as being Kosturovas (even
23 from across the street). More specifically, Muche used in its copies the very same pattern (i.e. the
24 Pattern) and arrangement throughout its garments, in the very same non-functional manner.
25 Kosturova is famous for this Pattern, and Muche is hoping to capitalize on marketplace confusion
26 and trade on the good will that Kosturova has worked so hard to create. This obviously unjustly
27 enriches Muche, and harms Kosturova.
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1
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JURISDICTION AND VENUE

5.
Plaintiff brings this action for copyright infringement (17 U.S.C. Section 101 et
3 seq.); unfair competition, and false designation of origin under the Lanham Act (15 U.S.C. Section
4 1125(a)); unfair competition under California law; and negligence.
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6.
This Court has original subject matter jurisdiction over this action and the claims
6 asserted herein, pursuant to 28 U.S.C. Section 1331 (federal question jurisdiction) and 1338(a)7 (b) (patent, copyright, trademark and unfair competition jurisdiction) in that this action arises
8 under the laws of the United States and, more specifically, Acts of Congress relating to patents,
9 copyrights, trademarks, and unfair competition. This Court has subject matter jurisdiction over the
10 state law claims pursuant to 28 U.S.C. Section 1367(a)(supplemental jurisdiction) in that they
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11 are so related to the federal law intellectual property claims in the action that they form part of the
12 same case or controversy under Article III of the United States Constitution.
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7.
Defendants are subject to the personal jurisdiction of the Court because they do or
14 transact business in, have agents in, or are otherwise found and have purposely availed themselves
15 of the privilege of doing business in California and in this District.
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8.
Venue is proper in this District pursuant to 28 U.S.C. Section 1391(b)(1)-(2)
17 because a substantial part of the events or omissions giving rise to the claims occurred in this
18 District in that, inter alia, the clothing in question is and was offered for sale here.
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THE PARTIES
9.
Plaintiff Anna Kosturova Lucid Design, Inc. is corporation existing under the laws
21 of the province of British Columbia, Canada, with its principal place of business located in
22 Vancouver, British Columbia. Anna Kosturova Lucid Design, Inc. is the exclusive licensee of the
23 Pattern, and owner of all other intellectual property at issue in this lawsuit. As the exclusive
24 licensee of the Pattern, Anna Kosturova Lucid Design, Inc. is contractually entitled to take all
25 action to enforce the rights in and to the Pattern. Products incorporating the subject Anna
26 Kosturova Lucid Design, Inc. intellectual property are sold in a number of stores around the
27 world, including in Los Angeles, and California
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10.
Plaintiff Kosturova is informed and believes and thereon alleges, that Defendant
2 Muche et Muchette is a limited liability company organized and existing under the laws of the
3 State of Florida, with its principal place of business at 2119 NW 84th Avenue, Miami, FL 33122.
4 Muche is also in the business of manufacturing and selling apparel, through its own web site,
5 department stores and other independent outlets.
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11.
Plaintiff is ignorant of the true names and capacities of the Defendants sued herein
7 as Does 1-10, inclusive, and therefore sues said Defendants by such fictitious names. Plaintiff will
8 amend this Complaint to allege the true names and capacities when the same has been ascertained.
9 Plaintiff is informed and believes, and thereon alleges, that each fictitiously-named Defendant is
10 responsible in some manner for the occurrences herein alleged, and that Plaintiffs damages as
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11 herein alleged were proximately caused by their conduct.

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12.
Each of the Defendants acted as an agent for each of the other Defendants in doing
13 the acts alleged and each defendant ratified and otherwise adopted the acts and statements
14 performed, made or carried out by the other Defendants so as to make them directly and
15 vicariously liable to Plaintiffs for the conduct complained of herein. Each Defendant is the alter
16 ego of each of the other Defendants.
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GENERAL ALLEGATIONS
18 I.
Kosturova Is An Innovative and Acclaimed, Swimwear Brand
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13.
Kosturova is an acclaimed swimwear brand, launched in 2004 by its namesake,
20 Anna Kosturova. Kosturova specializes in producing high-end, crocheted swimwear. Each crochet
21 stitch pattern used in Kosturovas line is painstakingly designed by Anna herselfa process that
22 takes on average 2 to 3 years. After a design is complete, Kosturovas goods are then handmade
23 by crochet artisans with generations of experience. This slow process results in a product of
24 heirloom-like quality, and distinguishes Kosturovas goods from the disposable, fast-fashion
25 garments of its competitors.
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14.
Due to this high level of quality and design, Kosturovas goods have been regularly
27 featured in fashion publications such as Womens World Daily, Vogue, and Elle; as well as the
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1 famed Sports Illustrated Swimsuit Issue, and calendar.

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15.
Prices for Kosturovas goods are relatively high, reflecting its high standards of
3 design, quality, and desirability.

4 II.
Kosturova is Known For Crochet
16.
Because of the tremendous amount of resources that Kosturova employs in
6 designing and producing its apparel, their design details, and crochet stitches have thus become
7 recognizable characteristics of the brand. Kosturova uses these original elements in non-utilitarian,
8 and innovative ways.
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17.
Thanks in part to its signature source-identifying elements, resulting
10 recognizability, brand loyalty, and critical renown; Kosturovas annual sales volume has increased
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11 annually.
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18.
Consumers in the marketplace as well as the fashion press and store buyers have
13 come to recognize Kosturovas signature elements (especially when they appear together) as
14 Kosturovas. Unlike most lines, the majority of Kosturovas garments are entirely hand crocheted.
15 For purposes of this Complaint, the sum total of these and other elements that define Kosturovas
16 overall look and feel, and which identify Kosturova as the source of its goods, are hereinafter
17 referred to as the Kosturova Trade Dress. The Kosturova Trade Dress works as a sort of product
18 packaging, which enables the marketplace to identify Kosturovas goods. The Kosturova Trade
19 Dress is used in interstate commerce.
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19.
The goodwill and reputation associated with the Kosturova Trade dress has
21 continuously grown throughout the fashion trade and the target consumers. The Kosturova Trade
22 Dress is now well known throughout the United States and the State of California as a source of
23 origin for Kosturovas apparel and related goods.
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20.
Kosturova has spent substantial resources establishing the Kosturova Trade Dress
25 and name in the minds of consumers as popular and reputable providers of a high quality and
26 prestigious product. Kosturova has been successful in so establishing the Kosturova Trade Dress.
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21.
The Kosturova Trade Dress and all individual elements thereof are strong, fanciful,
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1 non-functional, distinctive, and inherently distinctive. Through Kosturovas efforts in selling,

2 distributing and marketing its goods, the Kosturova Trade Dress has become distinctive of the
3 goods described herein, and has acquired secondary meaning among relevant consumers and the
4 public generally.
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22.
The Kosturova Trade Dress, and its acquired meaning, are immediately recognized
6 and understood in the relevant marketplace to be associated with Kosturovas goods, and
7 Kosturova is understood as the source of the goods associated with the Kosturova Trade Dress.
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23.
Kosturova has been harmed by the misappropriation and infringement described
9 above in several ways, including but not limited to damage to their reputations and credibility in
10 the fashion world based .
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24.
Kosturova is informed and believes, and thereon alleges, that Defendants alleged
12 conduct was, and continues to be, intentional, deliberate, willful, wanton, committed with the
13 intention of injuring Plaintiff, and depriving it of its legal rights; was, and is, despicable conduct
14 that subjects Plaintiff to a cruel and unjust hardship; and was, and continues to be, undertaken with
15 oppression, fraud and malice. Accordingly, Kosturova is entitled to an award of punitive or
16 exemplary damages.
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25.
Defendants actions have caused, and will continue to cause, damage and
18 irreparable harm to Kosturova (as described above) and are likely to continue unabated, thereby
19 causing further damage and irreparable harm to Plaintiff, unless preliminarily and permanently
20 enjoined and restrained by the Court.
21 III.
Kosturovas Non-Functional Use of the Pattern as a Source Identifier
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26.
One example of a signature Kosturova design element is the use of the Summer
23 Diamonds pattern, created by Anna Kosturova herself. The Pattern can and does function as a
24 source identifier because Kosturova has used the Pattern in a significant number of its garments,
25 and because it fits squarely within the design and artistic theme of Kosturovas slow fashion. To
26 put it simply, people can tell a garment is Kosturovas as soon as they can see that it features the
27 Pattern. Before Muche, no one else has copied the Pattern.
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1 IV.
Muches Knock-Off
27.
As shown above, Muche manufactured and sold a knock-off of Kosturovas Fringe
3 Maxi Kimono, along with other knock-offs prominently featuring Kosturovas signature Pattern.
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28.
Kosturova generally objects to such copies, which go far beyond the borrowing of
5 ideas or taking inspiration. But even then, Kosturova does not sue for mere knock-offs.
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29.
The problem with the Muche knock-off here at issue is that it incorporates elements
7 of the Kosturova Trade Dress, including the use of the Pattern in a way that precisely mimics
8 Kosturovas use. When viewed en toto by a typical buyer, the Gaby Long Cover Up O/S garment
9 strongly appears to be a Kosturova garment.
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30.
In other words, Muche has in this instance gone far beyond the arguably legal
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11 practice of knocking off another labels designsand has gone so far as to attempt to trade on
12 Kosturovas good will and by using signature elements that are likely to, and do, confuse shoppers
13 and observers. Muche also knows that consumers might purchase the Gaby Long Cover Up O/S,
14 or Chelsea Crochet Vest garment because they appear to be Kosturova garments.
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31.
The Muche garment is, however, inferior in many ways, including the quality of
16 the product.
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32.
On information and belief, Muches garments were or are available at stores and
18 web sites across the United States and abroad.

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33.
Defendants use of the Kosturova Trade Dress is designed to create and does create
20 the false and deceptive commercial impression that Muches garments are associated with
21 Kosturova.
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34.
The use by Defendants of the Kosturova Trade Dress or any element thereof is
23 likely to cause confusion or mistake or deception of purchasers as to the source of the goods.
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35.
Customers and potential purchasers are likely to be attracted to Muches garments
25 believing them to be associated with Kosturova, thereby resulting in consumer confusion and a
26 loss of potential sales to Kosturovaas well as increased sales for Muche. Muches conduct will
27 damage Kosturovas ability to maintain its hard-won brand-recognition and status as a market
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1 niche leader. In addition, Muche will be able to flood the market easily using its mass distribution
2 network, and thereby efficiently misappropriate Kosturovas significant business goodwill.
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36.
Although it maintains the highest standards of quality, Kosturova obviously has no
4 control over the quality of the goods provided by the Defendant. Goods of lower quality than
5 Kosturovas, if associated with Kosturova, damage Kosturovas prestige and strain relations with
6 Kosturovas customers and chosen retailers. Further, such loss of goodwill with respect to
7 customers and retailers would cause decreased revenues and decreased profits for Kosturova.
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37.
Kosturova steadfastly prohibits and prevents the sale of its goods through stores
9 and Web sites of which it does not approve. Sales through such channels would damage
10 Kosturovas prestige and strain relations with Kosturovas customers and chosen retailers. Further,
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11 such loss of goodwill with respect to customers and retailers would cause decreased revenues and
12 profits for Kosturova.
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38.
Defendants earn profit and other commercial advantages by misappropriating
14 Kosturovas copyrighted designs and the Kosturova Trade Dress. For example, they enjoy
15 increased sales by trading on Kosturovas business goodwill.
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39.
In addition, Defendants use of the Kosturova Trade Dress harms the
17 distinctiveness of that trade dress by associating it with low-cost and discount marketing.
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40.
Thus, Kosturova brings this action for trade dress infringement (15 U.S.C. 1114),
19 false designation of origin and unfair competition (15 U.S.C. 1125(a)), unfair trade practices
20 under California Business and Professions Code 24 Sections 17200 et seq., and unfair competition
21 under the common law of the State of California.
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41.
Plaintiff is informed and believes, and thereon allege, that Defendants alleged
23 conduct was, and continues to be, intentional, deliberate, willful, wanton, committed with the
24 intention of injuring Plaintiff, and depriving Kosturova of its legal rights; was, and is, despicable
25 conduct that subjects Kosturova to a cruel and unjust hardship; and was, and continues to be,
26 undertaken with oppression, fraud and malice. Accordingly, Kosturova is entitled to an award of
27 punitive or exemplary damages.
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First Claim For Relief for Copyright Infringement
(Against All Defendants)
42.
Plaintiff incorporates herein by this reference paragraphs 1 through 41 as if set
4 forth in full in this cause of action.

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43.
The Pattern is an original work of authorship and constitutes copyrightable subject
6 matter under the laws of the United States. The Pattern was fixed in a tangible medium of
7 expression, inter alia, as described above.
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44.
At all times since the creation of the Pattern, Plaintiff has complied with all aspects
9 of the Copyright Acts of 1909 and 1976 and all other laws governing copyright, and secured the
10 exclusive rights and privileges in and to the Pattern. Plaintiff has at all times been the exclusive
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11 licensee of all rights, title, and interest in and to the copyright in the Pattern, and is informed and
12 believes, and thereon alleges that an application for a federal registration of the Pattern has been
13 filed with the Register of Copyrights, dated January 26, 2015; and the deposit, application, and fee
14 required for registration have been delivered to the Copyright Office in proper form.
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45.
Subsequent to Plaintiffs publication of the Pattern and (on information and belief)
16 with full knowledge of the rights of Plaintiff therein, Defendants infringed Plaintiffs copyright by
17 copying, as described above, the crochet pattern and reproducing this pattern on apparel; and by
18 selling such apparel in California, elsewhere in the United States, and abroad.
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46.
All of Defendants acts were performed without Plaintiffs permission, license or
20 consent.
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47.
By reason of Defendants acts of copyright infringement as alleged herein, Plaintiff
22 has suffered and will continue to suffer substantial damage to its business in the form of diversion
23 of trade, loss of profits, and a dilution in the value of its rights and reputation, in part as described
24 above, all in amounts that are not yet ascertainable but not less than the jurisdictional minimum of
25 this court.
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48.
By reason of their infringement of Plaintiffs copyright as alleged herein,
27 Defendants are liable to Plaintiff for the actual damages incurred by Plaintiff as a result of the
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1 infringement, and for any profits of Defendants directly or indirectly attributable to such
2 infringement.
3
Second Claim For Relief for Unfair Competition Under Section 43(a) of
The Lanham Act (15 U.S.C. 1125(a))
49.
Kosturova incorporates herein by this reference paragraphs 1 through 48 as if set

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50.
By Defendants unlicensed, unconsented to, and otherwise unauthorized use of
9 Kosturovas graphical, thematic, and other signature source- identifying elements including the
10 Kosturova button-hole elastic use and Kosturova Trade Dress, Defendants have wrongfully
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11 appropriated for themselves business and goodwill value that properly belongs to Kosturova and
12 that Kosturova has invested time, money and energy developing.
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51.
Defendants unlicensed, unconsented to, and otherwise unauthorized use of
14 Kosturovas graphical, thematic, and other signature source- identifying elements including the
15 Kosturova button-hole elastic use and Kosturova Trade Dress constitutes a false representation
16 that wrongly suggests to the trade, relevant purchasing public, and consumers, that Kosturova is
17 the source of, or endorses or approves of, Muche goods, or that Kosturova and Muche are in some
18 way associated.
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52.
Defendants have intentionally traded, infringed upon, and diluted Kosturovas
20 Trade Dress, and misrepresented and created confusion regarding the source, origin, and quality of
21 Muche goods.
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53.
By reason of Defendants acts of unfair competition as alleged herein, Plaintiff has
23 suffered and will continue to suffer substantial damage to its business in the form of diversion of
24 trade, loss of profits, and a dilution in the value of its rights, all in amounts which are not yet
25 ascertainable but which are estimated to be not less than the jurisdictional minimum of this court.
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54.
By virtue of Defendants acts hereinabove described, Defendants have committed,
27 and are continuing to commit, unlawful, unfair, and fraudulent business acts in violation of, inter
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1 alia, 15 U.S.C. 1125(a).

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55.
Defendants aforesaid acts of unfair competition in violation of 15 U.S.C. 1125(a)
3 have caused, and will continue to cause, damage and irreparable harm to Kosturova (as described
4 above) and are likely to continue unabated, thereby causing further damage and irreparable harm
5 to Kosturova, and to the goodwill associated with Kosturovas valuable and well-known trade
6 dress and Kosturovas business relationships, unless preliminarily and permanently enjoined and
7 restrained by the Court.
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56.
Kosturova has no adequate remedy at law and will suffer irreparable injury if
9 Defendants are allowed to wrongfully continue the conduct herein described.
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57.
Kosturova is entitled to punitive damages as alleged above.
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Third Claim For Relief for Unfair Competition Under
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California Business and Professions Code 17200 et seq.
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58.

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59.
Defendants, by means of the conduct above, have engaged in, and are engaging in,
17 unlawful, unfair, fraudulent and deceptive business practices under California Business and
18 Professions Code 17200 through 17203. These acts and practices undertaken by Defendants
19 violate California Business & Professions Code 17200 in that they areas described above
20 unfair, fraudulent, and/or unlawful. Specifically, without limiting the generality of the foregoing,
21 such acts and practices are and were fraudulent in that: (a) Defendants seek to deceive consumers
22 regarding the source, quality and origin of Defendants goods and Defendants association with
23 Plaintiff, and (b) the general public and trade is likely to be confused regarding the business
24 relationship between Plaintiff and Defendants. Further, without limiting the generality of the
25 foregoing, the harm to Plaintiff and to members of the general public far outweighs the utility of
26 Defendants practices and, consequently, Defendants practices constitute an unfair business act or
27 practice within the meaning of Business and Professions Code 17200. Further, without limiting
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1 the generality of the foregoing, such acts by Defendants are unlawful in that they violate, inter
2 alia, the following statutes and/or regulations: 15 U.S.C. 1125 (Lanham Act) and 17 U.S.C.
3 501 (copyright infringement).
4
60.
Plaintiff has sustained, and will continue to sustain, serious and irreparable injury
5 to their business and reputation, as a direct and proximate result of Defendants conduct (as
6 described above). Unless Defendants are enjoined by this Court, there is a substantial possibility
7 that they will continue to engage in such unlawful, unfair, and deceptive business practices, for
8 which Plaintiff is without an adequate remedy at law. Accordingly, Plaintiff is entitled to a
9 preliminary injunction and permanent injunction against Defendants and their officers, directors,
10 employees, agents, representatives, affiliates, subsidiaries, distributors, and all persons acting in
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11 concert with them, prohibiting them from engaging in further unlawful, unfair and/or fraudulent
12 business practices.
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61.
As a direct result of Defendants unlawful, unfair, fraudulent, and deceptive
14 business practices, Defendants have received, and continue to receive, income and profits that they
15 would not have earned but for their unlawful, unfair, and deceptive conduct and Plaintiff is
16 entitled to disgorgement of such funds wrongfully obtained.
17
62.
18 suffered and will continue to suffer substantial damage to their business in the form of diversion of
19 trade, loss of profits, and a dilution in the value of their rights and reputation, all in amounts which
20 are not yet ascertainable but which are estimated to be not less than the jurisdictional minimum of
21 this court.
22
63.
Plaintiff is also entitled under the provisions of Business and Professions Code
23 17208 to an injunction prohibiting Defendants, and each of them, from engaging in any act,
24 directly or indirectly, which constitute unlawful, unfair, and deceptive business practices.
25
64.
In committing these acts of unfair competition, Defendants acted willfully,
26 wantonly, and recklessly; and with conscious disregard for Plaintiffs rights. Plaintiff is therefore
27 entitled to punitive damages.
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65.
Defendants conduct, if allowed to proceed and continue and/or let stand, will
2 cause irreparable damage to Plaintiffs valuable business relationships and consumer relations and
3 will require Plaintiff to undertake efforts to mitigate damage to such relations, all to Plaintiffs
4 detriment. Further, such mitigation costs will require substantial time, effort, and expenditures by
5 Plaintiff, all to Plaintiffs detriment.
6
Fourth Claim For Relief for Unfair Competition
Under California Common Law
66.
Kosturova incorporates herein by this reference paragraphs 1 through 65 as if set

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67.
The actions of Muche, as alleged above, constitute unfair competition under
12 California common law.

13
68.
Defendants alleged conduct was, and continues to be, intentional, deliberate,
14 willful, malicious, and in blatant disregard of Kosturovas rights; and was, and continues to be,
15 undertaken with oppression, fraud and malice.
16
69.
As a direct result of Defendants unfair competition, Defendants have received and
17 continue to receive income and profits that they would not have otherwise earned, and Kosturova
18 is entitled to disgorgement of such funds wrongfully obtained.
19
70.
20 suffered and will continue to suffer substantial damage to its business in the form of diversion of
21 trade, loss of profits, and a dilution in the value of its rights, all in amounts which are not yet
22 ascertainable but which are estimated to be not less than the jurisdictional minimum of this court.
23
71.
Kosturova has sustained, and will continue to sustain, serious and irreparable injury
24 to their business and reputation, a direct and proximate result of Defendants acts of unfair
25 competition (as described above). Unless Defendants are enjoined by this Court, there is a
26 substantial possibility that they will continue to engage in such misconduct, for which Kosturova
27 is without an adequate remedy at law. Accordingly, Kosturova is entitled to a preliminary
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1 injunction and permanent injunction against Defendants and their officers, directors, employees,
2 agents, representatives, affiliates, subsidiaries, distributors, and all persons acting in concert with
3 them, prohibiting them from engaging in further unfair competition.
4
72.
Kosturova is further informed and believes and thereon alleges that Defendants
5 have unlawfully and unjustly profited from the acts herein alleged. Accordingly, Kosturova is
6 entitled to an award against Defendants for the recovery of any gains, profits and advantages
7 Defendants have obtained as a result of their unlawful conduct, Kosturova damages, attorneys
8 fees and costs, as well as exemplary and punitive damages (pursuant to California Civil Code
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9 3294).
10
73.
Kosturova is entitled to punitive damages as alleged above.
11
74.
Kosturova is further informed and believes and thereon alleges that Defendants
12 have unlawfully and unjustly profited from the acts herein alleged. Accordingly, Kosturova is
13 entitled to an award against Defendants for the recovery and of any gains, profits and advantages
14 Defendants have obtained as a result of their unlawful conduct, Kosturovas damages, attorneys
15 fees and costs, as well as exemplary and punitive damages (pursuant to California Civil Code
16 3294).
17
Fifth Cause Of Action for Negligence
18
19
75.

21
76.
Defendants, and each of them, owed a duty of care to Plaintiff, as described above.
22
77.
Defendants breached their duty of care to Plaintiff, and failed to exercise
23 reasonable care in that, among other things, they failed to prevent injurious falsehoods from
24 reaching the public.
25
78.
As a proximate result of Defendants negligence, Plaintiff has been damaged in an
26 amount to be proven at trial but exceeding the jurisdictional minimum of this Court.
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PRAYER
WHEREFORE, Plaintiff prays judgment against Defendants as follows:
1.
That Plaintiff be awarded all damages, including future damages, that Plaintiff has
4 sustained, or will sustain, as a result of the acts complained of herein, subject to proof at trial;
5
2.
That Plaintiff be awarded its costs, attorneys fees and expenses in this action;
3.
That Plaintiff be awarded pre-judgment interest;
4.
For an order permanently enjoining Defendants and their employees, agents,
8 servants, attorneys, representatives, successors, and assigns, and any and all persons in active
9 concert or participation with any of them, from engaging in the misconduct referenced herein;
10
5.
That Defendants be adjudged to have engaged in unlawful, unfair and/or fraudulent
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11 business practices and unfair competition in violation of California Business and Profession Code
12 17200 et seq.;
13
6.
For disgorgement of all proceeds, and restitution of the moneys wrongfully
14 received by Defendants as the result of their wrongful conduct, including copyright and trade dress
15 infringement, and unlawful, unfair, and deceptive business practices;
16
7.
For punitive damages in an amount sufficient to deter Defendants, and each of
17 them, from their wrongful conduct; and

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That Plaintiff have such other and further relief as the Court may deem appropriate.
19 DATED: January 27, 2015
ERIKSON LAW GROUP
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By:
/s/
David Alden Erikson
Attorneys for Plaintiff ANNA KOSTUROVA LUCID
DESIGN, INC.
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INJUNCTIVE RELIEF
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DEMAND FOR JURY TRIAL

Plaintiff hereby demands a jury trial on their claims on all issues triable by a jury.
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DATED: January 27, 2015
ERIKSON LAW GROUP
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By:
/s/
David Alden Erikson
Attorneys for Plaintiff ANNA KOSTUROVA LUCID
DESIGN, INC.
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ERIKSO N LAW GROUP
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17

INJUNCTIVE RELIEF

Anna Kosturova v. Muche Et Muchette PDF

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Case 2:15-cv-00620 Document 1 Filed 01/27/15 Page 1 of 17 Page ID #:1

1 ERIKSON LAW GROUP

UNITED STATES DISTRICT COURT

CENTRAL DISTRICT OF CALIFORNIA, WESTERN DIVISION

ERIKSO N LAW GROUP

Plaintiff ANNA KOSTUROVA LUCID DESIGN, INC. (Kosturova) hereby complains

COMPLAINT FOR DAMAGES AND

Case 2:15-cv-00620 Document 1 Filed 01/27/15 Page 2 of 17 Page ID #:2

SUMMARY OF THE CASE

Below left is an image of a garment made by Plaintiff Kosturova, a swimwear

COMPLAINT FOR DAMAGES AND

Case 2:15-cv-00620 Document 1 Filed 01/27/15 Page 3 of 17 Page ID #:3

COMPLAINT FOR DAMAGES AND

Case 2:15-cv-00620 Document 1 Filed 01/27/15 Page 4 of 17 Page ID #:4

JURISDICTION AND VENUE

Venue is proper in this District pursuant to 28 U.S.C. Section 1391(b)(1)-(2)

COMPLAINT FOR DAMAGES AND

Case 2:15-cv-00620 Document 1 Filed 01/27/15 Page 5 of 17 Page ID #:5

11 herein alleged were proximately caused by their conduct.

Kosturova Is An Innovative and Acclaimed, Swimwear Brand

Kosturova is an acclaimed swimwear brand, launched in 2004 by its namesake,

COMPLAINT FOR DAMAGES AND

Case 2:15-cv-00620 Document 1 Filed 01/27/15 Page 6 of 17 Page ID #:6

1 famed Sports Illustrated Swimsuit Issue, and calendar.

3 design, quality, and desirability.

Kosturova is Known For Crochet

Because of the tremendous amount of resources that Kosturova employs in

Thanks in part to its signature source-identifying elements, resulting

COMPLAINT FOR DAMAGES AND

Case 2:15-cv-00620 Document 1 Filed 01/27/15 Page 7 of 17 Page ID #:7

1 non-functional, distinctive, and inherently distinctive. Through Kosturovas efforts in selling,

Kosturova has been harmed by the misappropriation and infringement described

Kosturovas Non-Functional Use of the Pattern as a Source Identifier

COMPLAINT FOR DAMAGES AND

Case 2:15-cv-00620 Document 1 Filed 01/27/15 Page 8 of 17 Page ID #:8

As shown above, Muche manufactured and sold a knock-off of Kosturovas Fringe

ERIKSO N LAW GROUP

18 web sites across the United States and abroad.

Customers and potential purchasers are likely to be attracted to Muches garments

COMPLAINT FOR DAMAGES AND

Case 2:15-cv-00620 Document 1 Filed 01/27/15 Page 9 of 17 Page ID #:9

Although it maintains the highest standards of quality, Kosturova obviously has no

Defendants earn profit and other commercial advantages by misappropriating

In addition, Defendants use of the Kosturova Trade Dress harms the

COMPLAINT FOR DAMAGES AND

Case 2:15-cv-00620 Document 1 Filed 01/27/15 Page 10 of 17 Page ID #:10

First Claim For Relief for Copyright Infringement

(Against All Defendants)

Plaintiff incorporates herein by this reference paragraphs 1 through 41 as if set

4 forth in full in this cause of action.

The Pattern is an original work of authorship and constitutes copyrightable subject

All of Defendants acts were performed without Plaintiffs permission, license or

By reason of Defendants acts of copyright infringement as alleged herein, Plaintiff

By reason of their infringement of Plaintiffs copyright as alleged herein,

COMPLAINT FOR DAMAGES AND

Case 2:15-cv-00620 Document 1 Filed 01/27/15 Page 11 of 17 Page ID #:11

The Lanham Act (15 U.S.C. 1125(a))

(Against All Defendants)

Kosturova incorporates herein by this reference paragraphs 1 through 48 as if set

7 forth in full in this cause of action.

By Defendants unlicensed, unconsented to, and otherwise unauthorized use of

Defendants unlicensed, unconsented to, and otherwise unauthorized use of