Case 1:14-cv-07289-GHW Document 47 Filed 01/23/15 Page 1 of 10

UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF NEW YORK
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I.C., a minor, by her mother and natural
guardian, ELLEN SOLOVSKY,

:
:

Plaintiff,
-vDELTA GALIL USA, and SOCK
DRAWER, LLC,

14 Civ. 7289 (GHW)

ECF Case

:
Defendants.
:
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AMENDED COMPLAINT AND JURY DEMAND
Plaintiff I.C., a minor, by her mother and natural guardian, Ellen Solovsky, for her
amended complaint against defendants Delta Galil USA (Delta Galil), and Sock Drawer, LLC
(Sock Drawer), alleges:
Nature of the Action
1.

I.C. is bringing this action, by her mother and natural guardian, Ellen Solovsky, to

recover damages for (i) the infringement of I.C.s copyright in I.C.s original design entitled
Hi/Bye (the Hi/Bye Design), (ii) quantum meruit, and (iii) unjust enrichment.
Jurisdiction and Venue
2.

This Court has subject matter jurisdiction over the first claim in this action

pursuant to 28 U.S.C. 1331 and 1338 because it arises under the Copyright Act, 17 U.S.C.
101 et seq. This Court has subject matter jurisdiction over the second and third claims under
28 U.S.C. 1332, because there is complete diversity of citizenship between the parties and the
amount in controversy exceeds $75,000, exclusive of interest and costs. In addition, this Court
has subject matter jurisdiction over the second and third claims for relief under 28 U.S.C. 1367

Case 1:14-cv-07289-GHW Document 47 Filed 01/23/15 Page 2 of 10

because they are so related to the claims within the original jurisdiction of the Court that they
form part of the same case or controversy under Article III of the United States Constitution.
3.

Upon information and belief, venue is proper in this District pursuant to 28 U.S.C.

1391 and 1400(a).

4.

Defendants are subject to the personal jurisdiction of this Court pursuant to N.Y.

C.P.L.R. 301 and/or 302.

Parties
5.

I.C. is a natural, minor person, and a citizen of the State of New York.

6.

Ellen Solovsky is I.C.s mother and natural guardian, and a citizen of the State of

New York.
7.

Upon information and belief, Delta Galil is a Delaware corporation, with its

principal place of business at 150 Meadowland Parkway, Secaucus, New Jersey.

8.

Upon information and belief, Sock Drawer is a Delaware limited liability

company, with its principal place of business at 197 1st Avenue, Needham Heights,
Massachusetts.
Background
A.

The Business of Miss Matched, Inc.

9.

Upon information and belief, Miss Matched, Inc. (Miss Matched) was a

childrens clothing and accessory company which owned the brand LittleMissMatched
(LMM). LMM is a girls clothing brand that features bright, contrasting colors and purposely
mismatched, but coordinated, designs.
10.

Upon information and belief, Miss Matched dissolved in or about December

2012.

Case 1:14-cv-07289-GHW Document 47 Filed 01/23/15 Page 3 of 10

B.

The T-Shirt Contest at P.S. 116

11.

In or around the Fall of 2011, Miss Matched sponsored a contest at P.S. 116 in

New York, called LittleMissMatcheds TEE OFF! PROJECT TEE (the Contest). Through
the Contest, Miss Matched encouraged the children at P.S. 116, including I.C., to create t-shirt
designs for Miss Matched, which would fit the style of the LMM brand. The children, including
I.C., were told, among other things, that the award for creating the best t-shirt design would
include the chance for the winning design to be featured on a t-shirt.
12.

I.C., then a second grader at P.S. 116, received a submission form for the contest

(Submission Form). A copy of the Submission Form is annexed hereto as Exhibit A.

13.

The Submission Form contained, among other things, the following:

By entering, you agree that your entry shall be a work made for hire with all
rights therein, including, without limitation, the exclusive copyright, being the
property of Sponsor. In the event the entry is considered not to be a work made
for hire, by entering, you irrevocably assign to Sponsor all right, title, and
interest in your Content, design and entry (including, without limitation, the
copyright) to Sponsor, including in any and all media whether now known or
hereafter devised, in perpetuity, anywhere in the world, with the right to make any
and all uses thereof, including, without limitation, for purposes of advertising or
trade. (the Copyright Provision).
14.

Upon information and belief, Miss Matched knew or should have known that

elementary school students would not understand the Copyright Provision.

C.

I.C.s Creation of the Winning Design

15.

In or about October of 2011, I.C. created her original Hi/Bye Design for the

Contest. I.C. did not copy the Hi/Bye Design from any source. I.C. is therefore the sole owner
of the Hi/Bye Design. A copy of her Hi/Bye Design submission is annexed as Exhibit B.
16.

The Hi/Bye Design is creative. The creative elements in the Hi/Bye Design

include, but are not limited to, the selection and arrangement of the elements in the design.

Case 1:14-cv-07289-GHW Document 47 Filed 01/23/15 Page 4 of 10

17.

I.C. created the Hi/Bye Design with the understanding that Miss Matched would

fairly compensate her for the value of her services in creating her design.
18.

On or about October 21, 2011, I.C. submitted the Hi/Bye Design to Miss Matched

in connection with the Contest using the Submission Form.

19.

I.C. submitted the Hi/Bye Design with the understanding that Miss Matched

would fairly compensate her for the value of her services in submitting her design.
20.

I.C.s mother, Ellen Solovsky, signed the Submission Form, in the space

provided.
21.

At the time I.C. created and submitted her Hi/Bye Design, I.C., then a second

grader, did not understand the Copyright Provision of the Submission Form. At the time, upon
information and belief, Miss Matched knew that a second grader would not understand the
Submission Form and knew that I.C. did not understand the Copyright Provision of the
Submission Form.
22.

In or about February of 2012, Miss Matched announced that I.C. was one of the

two winning P.S. 116 Student Designers of the Contest. A copy of that announcement is
annexed as Exhibit C.
23.

In connection with naming I.C. as a winning P.S. 116 Student Designer for the

Contest, Miss Matched gave I.C. a $100 Miss Matched gift card and five t-shirts bearing her
Hi/Bye design.
24.

Upon information and belief, Miss Matched provided I.C. with only the $100

Miss Matched gift card and five t-shirts bearing her winning design as compensation, despite its
intent to use the Hi/Bye Design on products beyond the Contest's winning t-shirt.

Case 1:14-cv-07289-GHW Document 47 Filed 01/23/15 Page 5 of 10

D.

Miss Matched Sells its Business

25.

Upon information and belief, in or around December of 2012, Miss Matched sold

all or substantially all of its assets, including its inventory that contained the Hi/Bye Design, to
Sock Drawer. Sock Drawer thereafter sold those assets to Delta Galil. At the time of that sale,
Sock Drawer understood that Delta Galil would sell the inventory to the public under the LMM
brand.
26.

Sock Drawer, and then Delta Galil, continued the business of Miss Matched.

Upon information and belief, they continued to use the LittleMissMatched mark, the
littlemissmatched.com website, and the Hi/Bye Design to sell childrens clothing and
accessories. They also continued to sell merchandise out of at least six Miss Matcheds former
retail locations, specifically:

LittleMissMatched at Grand Central

107 East 42nd Street, Lexington Passage
New York, NY 10017

LittleMissMatched on 5th Avenue

565 5th Avenue
New York, NY 10017

LittleMissMatched at The Westchester

125 Westchester Ave.
White Plains, NY 10601

LittleMissMatched at Roosevelt Field

630 Old Country Road
Garden City, NY 11530

LittleMissMatched at Disney World

1772 North Buena Vista Drive
Lake Buena Vista, FL 32830

LittleMissMatched at Disneyland Resort

1540 South Disneyland Drive
Anaheim, CA 92802

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Additionally, upon information and belief, Sock Drawer and Delta Galil sold all or substantially
all of the inventory acquired from Miss Matched.
27.

Upon information and belief, Sock Drawer and Delta Galil are responsible for the

liabilities of Miss Matched because (i) Sock Drawer was, and Delta Galil is, a continuation of the
business of Miss Matched, and/or (ii) Miss Matched de facto merged with Sock Drawer, and
then Delta Galil.
28.

Upon information and belief, Sock Drawer and Delta Galil are successors to Miss

Matched.
E.

I.C. Provides Notification of the Infringement

29.

In April 2014, I.C., through her attorneys, sent a letter to Miss Matched

disaffirming any contract I.C. may have entered into with Miss Matched, or any of its parent,
affiliate, or subsidiary entities. Delta Galil received that letter.
30.

In her complaint, filed September 9, 2014, I.C. tendered her return of the $100,

and five t-shirts bearing her Hi/Bye Design, or their monetary value.
31.

Delta Galil continued to sell products bearing the Hi/Bye Design after receiving

the letter of I.C. in April 2014. A copy of Delta Galils Hi/Bye offerings as of September 8,
2014, is annexed hereto as Exhibit D.
32.

Upon information and belief, Sock Drawer and/or Delta Galil sold, or caused to

be sold, products bearing I.C.s Hi/Bye Design including, but not limited to, various t-shirts, long
sleeve shirts, dresses, leggings, flip flops, ponchos, rash guards, socks, hoodies, headphones,
duffle bags, tablet bags, and purses (i) at their retail locations, including in this District, (ii)
through their retail partners, and (iii) through their website, www.littlemissmatched.com.

Case 1:14-cv-07289-GHW Document 47 Filed 01/23/15 Page 7 of 10

F.

I.C. Applies to Register her Copyright

33.

On April 3, 2014, I.C., through her attorneys, submitted her legally sufficient

application to register her Hi/Bye Design to the United States Copyright Office.
34.

On or around June 26, 2014, I.C., through her attorneys, received a rejection from

the United States Copyright Office, stating that it lacks the authorship necessary to support a
copyright claim.
35.

The Hi/Bye Design contains the authorship necessary for a copyright.

36.

Pursuant to 17 U.S.C. 411(a), I.C. duly notified the Copyright Office of this

lawsuit on September 12, 2014. Pursuant to 37 C.F.R. 205.13, I.C. duly notified the Attorney
General of the United States of this lawsuit on November 14, 2014, and the United States
Attorney for the Southern District of New York on November 14, 2014.
FIRST CLAIM FOR RELIEF
(Copyright Infringement 17 U.S.C. 501)
37.

I.C. repeats the allegations in paragraphs 1 through 36 as if set forth in full.

38.

I.C. owns the copyright in the Hi/Bye Design annexed as Exhibit B.

39.

I.C.s copyright in the Hi/Bye Design is valid and enforceable.

40.

The Submission Form is not a valid or enforceable contract because inter alia, (i)

there was no meeting of the minds, and (ii) I.C. disaffirmed any contract she might have entered
into with Miss Matched.
41.

Delta Galil and Sock Drawer have infringed I.C.s copyright in the Hi/Bye

Design, in violation of 17 U.S.C. 106, by making and/or distributing products that contain
unauthorized copies of the Hi/Bye Design, and/or creating derivative works of the Hi/Bye
Design.

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42.

I.C. is entitled to recover damages sustained as a result of Delta Galil and Sock

Drawers unlawful conduct, including the profits of Delta Galil and Sock Drawer that are
attributable to the infringement.
SECOND CLAIM FOR RELIEF
(Quantum Meruit)
43.

I.C. repeats the allegations contained in paragraphs 1 through 42 above as if set

forth in full.
44.

I.C. performed services in good faith, which Miss Matched accepted. I.C.

performed the services with an expectation of compensation therefor. I.C.s services have a
reasonable value, to be determined by the finder of fact.
45.

Through the Contest it sponsored at P.S. 116, Miss Matched induced I.C. to create

and submit a t-shirt design.

46.

In reliance upon the inducements that Miss Matched made in connection with the

Contest, I.C. in good faith created her Hi/Bye Design and submitted to Miss Matched.
47.

At the time I.C. created the Hi/Bye Design, I.C. expected fair compensation for

the creation and submission of that design.

48.

Miss Matched accepted the Hi/Bye Design from I.C., which had value to Miss

Matched. Upon information and belief, Delta Galil and Sock Drawer are successors of Miss
Matched.
49.

Miss Matched, Sock Drawer and Delta Galil have failed to fairly compensate I.C.

for her creation and submission of her Hi/Bye Design.

50.

I.C. is therefore entitled to recover an amount to be determined by a jury at the

trial in this action.

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THIRD CLAIM FOR RELIEF

(Unjust Enrichment)
51.

I.C. repeats the allegations contained in paragraphs through 50 above as if set

forth in full.
52.

Defendants were enriched at I.C.s expense, and it is against equity and good

conscience to permit the defendants to retain the amounts that I.C. seeks to recover.
53.

Miss Matched, Delta Galil and Sock Drawer received a benefit from I.C.s

services in creating and submitting the Hi/Bye Design. Upon information and belief, Delta Galil
and Sock Drawer are successors of Miss Matched.
54.

To allow Delta Galil and Sock Drawer to retain the full benefit of I.C.s Hi/Bye

Design without fairly compensating I.C. would unjustly enrich Delta Galil and Sock Drawer.
55.

Delta Galil and Sock Drawer have been unjustly enriched because of their bad

faith or reprehensible conduct.

56.

I.C. is therefore entitled to recover an amount to be determined by a jury at the

trial in this action.

WHEREFORE, I.C. demands judgment:
A.

Awarding I.C. damages from Delta Galil and Sock Drawer as a result of their

infringement of I.C.s copyright in her Hi/Bye Design;

B.

Awarding I.C. damages from Delta Galil and Sock Drawer representing the

reasonable value of I.Cs services;

C.

Awarding I.C. damages representing the profits of Delta Galil and Sock Drawer

as a result of their unjust enrichment from I.C.s Hi/Bye Design; and

D.

Granting such other and further relief as to this Court seems just and proper.

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Jury Trial Demand

Pursuant to Rule 38 of the Federal Rules of Civil Procedure, I.C. hereby demands a trial
by jury of all issues that are so triable.
Dated: New York, New York
January 23, 2015
DUNNEGAN & SCILEPPI LLC

By__s/Laura Scileppi__________
Laura Scileppi (LS0114)
ls@dunnegan.com
Richard Weiss (RW4039)
rw@dunnegan.com
Attorneys for Plaintiff
350 Fifth Avenue
New York, New York 10118
(212) 332-8300

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