10 Deep Clothing v. Hudson Outerwear.pdf

GORDON E. R. TROY, PC Gordon E. R. Troy 5203 Shelburne Road PO Box 1180 Shelburne, VT 05482 (802) 881-0640 Phone (646) 588-1962 Fax [email protected] E-mail

14 Attorney for Plaintiff 10 Deep Clothing, Inc.

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK

cv 974 0

JUDGE STANTON c:

.. - (/)

10 DEEP CLOTHING, INC.

Plaintiff,

-against-

HUDSON OUTERWEAR, INC., MAXIMA E-COMMERCE HOLDINGS, LLC and JOHN DOES 1-4,

Defendants.

(J ) r .

COMPLAINT FOR COPYR1Giff INFRINGEMENT~< -

C'1 DEMAND FOR JURY TRIA:E/ 'i

Index No. : ______ _

COMPLAINT FOR COPYRIGHT INFRINGEMENT

Plaintiff 10 Deep Clothing, Inc. (""10 Deep"), by its attorneys, Gordon E. R. Troy, PC, as

and for its Complaint, alleges:

STATEMENT OF THE CASE

1. This is an action for copyright infringement and injunctive relief under the United

States Copyright Act of 1976, as amended, 17 U.S.C. 101, et seq., based on Defendants'

unlawful appropriation and use of 10 Deep's ""Daylight" designs.

10 Deep Clothing, Inc. v. Hudson Outerwear, Inc. , et al. Complaint Page 1

~ !

THE PLAINTIFF

2. Plaintiff 10 Deep is a corporation organized and existing under the laws of the

State of New York, with an address at 68 Jay Street, Suite 511, Brooklyn, NY 11201.

3. 10 Deep is a cornerstone street-wear clothing brand for over fifteen years and

sells its clothing to retailers via its catalogs and direct to consumers via its webstore.

THE DEFENDANTS

4. Upon information and belief, defendant Hudson Outerwear, Inc. ("Hudson") is a

corporation organized and existing under the laws of the State ofNew York, with an address for

service of process at 75 Cliff St., Hastings on Hudson, New York 10706.

5. Upon information and belief, defendant Maxima E-Commerce Holdings, LLC

("Maxima") is a New York limited liability company organized and existing under the laws of

the State ofNew York, with an address for service of process at 712 Stewart Ave., Garden City,

New York 11530.

6. Hudson is a competitor of 10 Deep and sells its clothing both to retailers and

members of the public.

7. Upon information and belief, Hudson and Maxima own and operate the website,

http:/ /hudsonouterwear.com ("Defendants' Website").

8. Upon information and belief, John Does 1-4 are the principals and officers of

defendants Hudson and Maxima who had the right and ability to supervise the infringing conduct

of Hudson and Maxima, and have a direct financial stake in Hudson's and Maxima's infringing

activities.

10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Complaint Page2

JURISDICTION AND VENUE

9. This Court has jurisdiction over this action pursuant to 28 U.S.C. 1331 and

1338.

10. Venue is proper pursuant to 28 U.S.C. 1391 because Defendants reside or are

found within this district, the claims arose within this district and a substantial part of the events

or omissions giving rise to the claims in this Complaint occurred in this district. Defendants have

substantial contacts with this district including but not limited to transacting business by

advertising and selling the infringing clothing within this district.

FACTS AND ALLEGATIONS COMMON TO ALL CLAIMS

10 Deep's Daylight Designs

11. Pursuant to a work for hire arrangement, 10 Deep created and designed the

"Daylight" design, which first appeared in 10 Deep's "Full Cycle Fall 2013" Catalog (the "Fall

2013 Catalog"), published on February 22, 2013. The design was shown in both a rectangular

graphic and in variations on six articles of clothing, namely, the "Dashiki Workshirt," "Dashiki

Jersey Hoody," "Dashiki Rugby," "Dashiki Sweatpants," "Dashiki Hoody," and the "Larger

Living Tee." The relevant pages from the Fall2013 Catalog are attached hereto as Exhibit 1.

12. The Fall2013 Catalog was registered for copyright in the United States Copyright

Office in Plaintiffs name on March 15,2013, under Reg. No. TX0007708912. See, p. 1 of

Exhibit 4 attached hereto, a screenshot from the United States Copyright Office website showing

registration of the Fall2013 Catalog.

13. Following publication ofthe Fal12013 Catalog, 10 Deep began selling articles of

clothing bearing the Daylight design to retailers and, via 10 Deep's web store, to consumers.


14. On August 16,2013, 10 Deep published its "Spring 2014 Catalog," which

featured additional articles of clothing bearing the Daylight design, including three articles- the

"Dashiki Hoody," "Dashiki Sweat Pant" and "Dashiki Tee"- that featured the Daylight design

in a different "colorway" from the original. Attached as Exhibit 2 are relevant pages from the

Spring 2014 Catalog (Exh. 2, pp. 1-2), as well as and images of the actual Dashiki Hoody (Exh.

2, pp. 3-4) and Dashiki Tee (Exh. 2, pp. 5-6) promoted and sold via the Spring 2014 Catalog and

10 Deep's web store.

15. The Spring 2014 Catalog was registered for copyright in the United States

Copyright Office in Plaintiffs name on September 5, 2013, under Reg. No. TX0007775048. See,

p. 2 of Exhibit 4 attached hereto, a screenshot from the United States Copyright Office website

showing registration of the Fall 2013 Catalog.

16. On or about December 6, 2013, 10 Deep published its "Summer 2014 Catalog,"

which featured on additional article of clothing bearing the Daylight design the "Division

Dashiki" on which the Daylight design was reproduced in a monochrome colorway. 1 The

Summer 2014 Catalog was released to retailers and others on or about December 6, 2013, and 10

Deep's application for copyright registration was completed on December 24,2013. (See,

Exhibit 4, p. 3, a copy of the electronic receipt received by 10 Deep from the United States

Copyright Office confirming its application for the Summer 2014 Catalog; and pp. 4-5, a

screenshot explaining Copyright Office policy that the date of registration is the date of

completion of the application.)

17. Upon information and belief, the date of copyright registration for the Summer

2014 Catalog will be December 24, 2013, once the Copyright Office completes processing of the

application.

1 The original Daylight design together with its derivatives are hereinafter referred to as the "Daylight Designs."


18. At all relevant times, 10 Deep has been and is now the sole and exclusive owner

of all rights, title and interest in the copyright of the Daylight Designs.

Defendants' Copyright Infringement of the Daylight Designs

19. Defendants have infringed Plaintiffs copyrights in the Daylight Designs by

advertising, offering for sale and selling clothing bearing a design that is substantially similar to

the Daylight Designs, namely the "Cape Town Short Sleeve Shirt Heather Grey," "Cape Town

Short Sleeve Shirt Burgundy," "Cape Town Pull Over Hooded Sweatshirt Heather Grey," "Cape

Town Pull Over Hooded Sweatshirt Black," "Cape Town Pull Over Hooded Sweatshirt

Burgundy," "Cape Town Jogger Pants Heather Grey," and "Cape Town Jogger Pants Black"

(hereinafter the "Infringing Articles").

20. Attached as Exhibit 3 are screenshots of relevant portions of the following web

pages from Defendants' website on which the Infringing Articles are displayed:

http:/ /h udsonouterwear.com/ co II ecti ons/ short -sleeve-shirts

http://hudsonouterwear.com/collections/short-sleeve-shirts/products/cape-town-short-sleeve-shirt-heather-grey

http://hudsonouterwear.com/collections/short-sleeve-shirts/products/cape-town-short-sleeve-shirt-burgundy

http:/ /h udsonouterwear.com/ collections/ sweatshirts

http:/ /h udsonouterwear.com/ collections/ sweatshirts/products/ cape-town-pull-over-hooded-sweatshirt-heather-grey

http://hudsonouterwear.com/collections/sweatshirts/products/cape-town-pull-over-hooded-sweatshirt-black

http://hudsonouterwear.com/collections/sweatshirts/products/cape-town-pull-over-hooded-sweatshirt-burgundy

http://hudsonouterwear.com/collections/joggers http:/ /hudsonouterwear.com/ co llections/ioggers/products/ cape-town-

jogger-pants-heather-grey

10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Complaint Page 5

http :/ /h udsono uterwear.com/ collections/joggers/products/ cape-town-jogger-pants-black

21. Shown below is a comparison of Plaintiffs Dashiki Tee (Exhibit 2, p. 6) and

Defendants' "Cape Town Short Sleeve Shirt Heather Grey" (Exhibit 3, pp. 2, 4). The two

designs are substantially similar.

10 Deep Hudson

22. Upon information and belief, prior to Defendants' advertising, offer of sale, and

sale of the Infringing Articles, Defendants had access to Plaintiffs ' catalogs and/or clothing

bearing the Daylight Designs.

23. Upon information and belief, prior to Defendants' advertising, offer of sale, and

sale of the Infringing Articles, Defendants had access to Plaintiffs website, which at various

times has included images of Plaintiffs clothing bearing the Daylight Designs.

24. Defendants' access to and knowledge of Plaintiffs website is demonstrated by the

fact that, in addition to infringing on the Daylight Designs, Defendants substantially copied text

I 0 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Complaint Page 6

from Plaintiffs "About" page at http://1 Odeep.com/about/about.html and placed it on their own

competing "About Us" page at http://hudsonouterwear.com/pages/about-us:

10 Deep's website: "Driven by the same personal strength and energy that bore hip hop, skate, punk and graffiti subcultures, 10 .Deep, a cornerstone street wear brand for over fifteen years, communicates the bold power of individuality."

Defendants' Website: "Driven by the same strength and energy that bore hip hop, sports, and the urban streetwear lifestyle, Hudson Outerwear- a cornerstone streetwear brand-communicates the bold power of individuality."

25. The design that appears on the Infringing Articles was copied from the Daylight

Designs with minor variations.

26. The design on the Infringing Articles is comprised of the same elements as the

Daylight Designs. Furthermore, the layout, presentation and overall look of the designs on the

Infringing Articles are the same as the layout, presentation and overall look of the Daylight

Designs.

27. Plaintiff never authorized Defendants to use the Daylight Designs in any manner.

28. Upon information and belief, Defendants have willfully and intentionally

infringed Plaintiffs Daylight Designs.

AS AND FOR A FIRST CAUSE OF ACTION Copyright Infringement (17 U.S.C. 501 et seq.)

29. Plaintiff realleges and incorporates by reference each of the allegations contained

in paragraphs 1 through 28 of this Complaint.

30. Defendants' advertising, offer of sale and sale of the Infringing Articles without

Plaintiffs permission constitutes copyright infringement under 17 U.S.C. 501, et seq.

31. As a consequence of Defendants' copyright infringement as alleged in this

Complaint, Plaintiff has suffered and will continue to suffer monetary damages in an amount to


be determined at trial.

32. In addition, unless Defendant is restrained from continuing to advertise, offer for

sale and sell the Infringing Articles, Plaintiff will be irreparably harmed by Defendants'

infringing conduct.

33. Upon information and belief, Defendants have profited from the acts of copyright

infringement alleged in this Complaint.

34. Defendants' acts of copyright infringement were willful.

35. Plaintiff does not have a fully adequate remedy at law.

PRAYER FOR RELIEF

WHEREFORE, Plaintiff prays that this Court enter judgment against Defendants as

follows:

1. Granting Plaintiff a preliminary and permanent injunction enjoining Defendants,

together with their respective officers, agents, servants, employees, assigns, successors and

attorneys, and all other persons acting concert with any of them, pursuant to 17 U.S.C. 502(a):

a. from directly or indirectly infringing in any manner on any of Plaintiffs

copyrights, including without limitation Plaintiffs copyrights in the Daylight Designs;

b. from causing, contributing to, enabling, facilitating, or participating in the

infringement of any of Plaintiffs copyrights, including without limitation Plaintiffs

copyrights in the Daylight Design;

2. Ordering the destruction or other reasonable disposition of all Infringing Articles,

pursuant to 17 U.S.C. 503;

3. Directing Defendants to account for and pay over to Plaintiff all gains and profits

derived by Defendants as a consequence of their infringement of Plaintiffs copyrights, pursuant


to 17 U.S.C. 504;

4. Awarding Plaintiff maximum statutory damages, pursuant to 17 U.S.C. 504;

5. Awarding Plaintiff an increased award of statutory damages upon a finding that

Defendants' infringement was committed willfully, pursuant to 17 U.S.C. 504(c)(2);

6. A warding Plaintiff attorneys' fees incurred in investigating, bringing and

prosecuting this action;

7. Awarding Plaintiff the costs. and disbursements of this action;

8. Awarding Plaintiff pre- and post-judgment interest on any monetary award,

including any award of attorneys' fees; and

9. Awarding Plaintiff such other, further or different relief as this Court may deem

just and proper.

DEMAND FOR JURY TRIAL

Pursuant to Rule 38(b), Plaintiff requests a trial by jury on all issues so triable . . /'

Dated: December), 2014

ORDON E. R. TROY, PC Gordon E. R. Troy 5203 Shelburne Road PO Box 1180 Shelburne, VT 05482 (802) 881-0640 Phone (646) 588-1962 Fax [email protected] E-mail

Attorney for Plaintiff, 10 Deep Clothing, Inc

10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et at. Complaint Page 9

Gordon E. R. Troy 5203 Shelburne Road PO Box 1180 Shelburne, VT 05482 (802) 881-0640 Phone (646) 588-1962 Fax [email protected] E-mail

Attorney for Plaintiff 10 Deep Clothing, Inc.



Plaintiff,

-against-


Defendants.

EXHIBITS TO

Index No. : ______ _

COMPLAINT FOR COPYRIGHT INFRINGEMENT

Exhibit No. 1 2 3 4

Description 10 Deep Clothing, Inc. Fall 2013 Catalog 10 Deep Clothing, Inc. Spring 2014 Catalog Screenshots of relevant portions from Defendant's website Screenshots from United States Copyright Office website

10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Complaint

GORDON E. R. TROY, PC Gordon E. R. Troy 5203 Shelburne Road PO Box 1180 Shelburne, VT 05482 (802) 881-0640 Phone (646) 58.8-1962 Fax [email protected] E-mail




Plaintiff,

-against-


Defendants.

Index No. : ______ _

10 Deep Clothing, Inc. Fall2013 Catalog

EXHIBIT 1


lO.Deep dot bing . Fall2013 . Delivery I STYLE 1133TD3001

Dashiki Workshirt This engineered dashiki pattern printed cotton poplin button down shirt, with contrast indigo chambray sleeves, sets the tone for this delivery.

It references the Celine patterns of a year or two ago, but this is lO.Deep", so these are made for dudes. We took that reference, and flipped it using a trim pattern usually found on a West African dashiki, and added a bit of classic American workwear reference, with the

indigo chambray sleeves. Like much of what we produce as a brand, the references are widely varied, and the result is something new. Colors: White

Available Sizes : Small - 3XLarge Wholesale: $49.00 I Suggest Retail: $108.00

lO.Oeep Oothing . Fall2013 . Delivery 1

White

Dashiki Jersey Hoody Our hooded tee body gets the Dashiki print treatment. Don't sleep. Engineered print, cotton jersey, hooded long sleeve tee.

Colors: W hite Available Sizes : Small - 3XLarge

Wholesale: $34.00 I Suggest Retail: $75.00

STYLE #33TD4009

lO.Deep Ootbing . Fall 2013 . Delivery 1 STYLE # 33TD4008

Navy White

Dashiki Rugby In the Dashiki Rugby we added classic dashiki styled print detail around the bottom of the garment, to the classic cotton jersey

rugby body. The right chest and back lO's are tackle twill applique, and the left chest graphic is embroidered felt. Not to be missed.

Colors: Navy, White Available Sizes: Small- 3XLarge


lO.Deep Oothing . Fall 2013 . Delivery 1

Dashiki Sweatpant Work out gear for fashion conscious tribal folk. Madison Ave, meets the African Savannah, by way of the weightroom.

Engineered printed sweat bottom features set back zipper closing side and back pockets, and elastic ribbed cuff and waist. Buy this and the hoody on the previous page seperately, or together for that head to toe appeal. 360gsm cotton fleece.

Colors: Navy Available Sizes : Small - 2XLarge


STYLE # 33TD1202

lO.Deep Oothing . Fall2013 . Delivery 1

Dashiki Hoody One part Dashiki, one part hoody. Link this with the bottoms on the next page, and you've got a definite head turner.

Colors: Navy Available Sizes : Small - 3XLarge


STYLE #33TD4003

lO.Deep Oothlng . Fall2013 . Delivery I

White

Black

Larger Living Tee Screen printed cotton tee.

Colors: White, Black, Heather Grey Available Sizes: Small- 3XLarge


sme 33TD431o

Heather Grey





Plaintiff,

-against-

HUDSON OUTERWEAR, INC., MAXIMA-COMMERCE HOLDINGS, LLC and JOHN DOES 1-4,

Defendants.

Index No. : ______ _

10 Deep Clothing, Inc. Spring 2014 Catalog

EXHIBIT 2

10 Clothing, Inc. v. Hudson Outerwear, Inc., et al. Complaint

. 'He.alh~~ Grey

DASHIKI HOODY AND SWEAT PANT 1be confluence of cultures that is the middle eut needed an expreuloo of HI African wtna.so we brotJaht back our Duhild Hoody and Sweat pant for m encon. Mid-welJht cotton fteece hoody and sweat pant with engineerecl fabrk printed graphla.

Splnl20l4 Deltft9y 2 -w c ==- (t!-JIIN

HOODY # 41104014 Colors: Heather Grey

Available Sizes: Small-- 3Xlarge Wholesale: $54.00

RetcU: $118.00

SWEAT PANT# 4lTD1210 Colors: Heather Grey

Available Sizes: Small- 2Xlarge Wholesale: $45.00

Retell: $99.00

DAISHIKI TEE 'Ibis delivery's inlpintlon beins the cOlifluence of cultures tha k the Mid cUe Bast. .needed m expression ofUs Atilcan wtns~ 50 we brought back. our Dashiki print, md tbre.w It on. our tee body. EIJ8ineered printed cotton jerJeytee.

Sprlng2014 . DeBlelfl -f}:]iliij

STYLE # 4lTD4211 Colors: Heather Grey, Natural

Available Sizes: Small- 3Xlorg~ Wholesale: $21.00

Retan: $46.00

\ I





Plaintiff,

-against-


Defendants.

Index No. : ______ _

Screenshots Of Relevant Portions From Defendants' Website

EXHIBIT 3


Newest LTD Short Sleeve Shirts From Hudson Outerwear Clothing Brand

HUDS-N 0 u T E R w E A R

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II Horne Newest LTD Short Sleeve Shirts From Hudson Outerwear Clothing Brand

Short Sleeve Shirts

Menu

Global Currency Short Sleeve Shirt Black

http:/ /hudsonouterwear.com/collections/short-sleeve-shirts[11/26/20 14 8:12:46 PM]

Newest LTD Short Sleeve Shirts From Hudson Outerwear Clothing Brand $ 59.00

Cape Town Short Sleeve Shirt Heather Grey

$ 59.00

http://hudsonouterwear.com/collections/short-sleeve-shirts[ll/26/2014 8:12:46 PM]

Newest LTD Short Sleeve Shirts From Hudson Outerwear Clothing Brand

Cape Town Short Sleeve Shirt Burgundy

$ 59.00

http:/ /hudsonouterwear.com/collections/short-sleeve-shirts[ 11126/2014 8: 12:46 PM]

Cape Town Short Sleeve Shirt Heather Grey- Hudson Outerwear I

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Horne View All Cape Town Short Sleeve Shirt Heather Grey

http:/ /hudson outerwear .com/ co llections/view-alVproducts/cape-town-short -sleeve-shirt -heather-grey[ 11124/2014 5:52:08 PM]

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Cape Town Short Sleeve Shirt Burgundy -Hudson Outerwear

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Home Short Sleeve Shirts Cape Town Short Sleeve Shirt Burgundy

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Newest Limited Edition Sweatshirt From Hudson Outerwear Clothing Brand


II Home Newest Limited Edition Sweatshirt From Hudson Outerwear Clothing Brand

Sweatshirts

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http://hudsonouterwear.com/collections/sweatshirts[11/26/2014 8:41:58 PM]

I

Newest Li~ited 'Edition Sweatshirt From Hudson Outerwear Clothing Brand

Cape Town Pull Over Hooded Sweatshirt Heather Grey

$ 109.00

http://hudsonouterwear.com/collections/sweatshirts[ll/26/2014 8:41:58 PM]

Newest Li~ited,Edition Sweatshirt From Hudson Outerwear Clothing Brand

Cape Town Pull Over Hooded Sweatshirt Burgundy

$ 109.00

http://hudsonouterwear.com/collections/sweatshirts[ll/26/2014 8:41:58 PM]

Newest Li~ited 'Edition Sweatshirt From Hudson Outerwear Clothing Brand

Cape Town Pull Over Hooded Sweatshirt Black

$ 109.00

http://hudsonouterwear.com/collections/sweatshirts[11126/2014 8:41:58 PM]

I

Cape Town Pull Over Hooded Sweatshirt Heather Grey- Hudson Outerwear


Home View All Cape Town Pull Over Hooded Sweatshirt Heather Grey

http:/ /hudsonouterwear.com/collections/view-all/products/cape-town-pull-over-hooded-sweatshirt-heather-grey[ll/24/20 14 5:4 7:22 PM]

.

Cape Town Pull Over Hooded Sweatshirt Black- Hudson Outerwear

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II Home View All Cape Town Pull Over Hooded Sweatshirt Black

http:/ /hudson outerwear .com/collections/view-all/products/ cape-town-pull-over-hooded-sweatshirt-black[ 11124/2014 5:52:48 PM]

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Cape Town Pull Over Hooded Sweatshirt Burgundy- Hudson Outerwear ;

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http:/ /hudsonouterwear.com/collections/sweatshirts/products/cape-town-pull-over-hooded~sweatshirt-burgundy[11127/20 14 3: 13:56 PM]

.

Joggers Pants From Hudson Outerwear

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II Home Joggers Pants From Hudson Outerwear

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Joggers/Pants

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QUICK VIEW

http:/lhudsonouterwear.com/collections/joggers[ll/26/2014 8:57:49 PM]

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Cape Town Jogger Pants Black

$ 99.00

http://hudsonouterwear.com/collections/joggers[ll/26/2014 8:57:49 PM]

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Cape Town Jogger Pants Heather Grey

$ 99.00

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Cape Town Jogger Pants Heather Grey- Hudson Outerwear


II Home View All Cape Town Jogger Pants Heather Grey

http:/ lhudsonouterwear.com/collections/view-alllproducts/cape-town-jogger-pants-heather-grey[11124/20 14 5:53:41 PM]

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Cape Town Jogger Pants Black- Hudson Outerwear


El Home View Al l Cape Town Jogger Pants Black

http:/ lhudsonouterwear.com/ co llections/view-alVproducts/ cape-town-jogger-pants-black[11 /24/2014 5:54: 17 PM]





Plaintiff,

-against-

HUDSON OUTERWEAR, INC., MAXIMA-COMMERCE HOLDINGS, LLC and JOHN DOES 1-4,

Defendants.

Index No. : ______ _

Screenshots From United States Copyright Office Website

EXHIBIT4


1 ~ , 1 -: ; r

WebVoyage Record View 1

Help Search History Titles Start Over

Public Catalog Copyright Catalog (1978 to present)

Search Request: Simple Search = 10 Deep Clothing Search Results: Displaying 4 of 11 entries

,..........,.1:!1-.. ~- 1 , .... ~ ~~ Full Cycle Fa/12013 10 Deep.

Type of Work: Entry not found. Registration Number I Date: TX0007708912 1 2013-03-15

Application Title: 10 Deep Clothing Inc. Fall 2013 Catalog. Title: Full Cycle Fall 2013 10 Deep.

Description: Print material. Copyright Claimant: 10 Deep Clothing Inc. Address: 68 Jay St, Suite 511, Brooklyn, NY,

11201, United States. Date of Creation: 2013

Date of Publication: 2013-02-22 Nation of First Publication: United States Authorship on Application: 10 Deep Clothing Inc., employer for hire; Domicile: United States;

Citizenship: United States. Authorship: text, artwork. Rights and Permissions: Debbie Bresler, 10 Deep Clothing, Inc., 68 Jay St, Suite 511, Brooklyn,

NY, 11201, United States, (917) 680-1994, [email protected] Names: 10 Deep Clothing Inc.

Hclp_ Search Hi story Iitk Start Oyer

Contact Us I Request Copies I Get a Search Estimate I Frequently Asked Questions (FAQs) about Copyright I Copyright Office Home Page I Library of Congress Home Page

http:/ /cocatalog.loc.gov/ ... Search%5FCode=NALL&CNT= 1 O&PID=4PcJeDt-44NJxWOjbx9kah WY q6K4l&SEQ=20 141128151711&SID=1 [11128/20 14 5:21:17 PM]

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Search Request: Simple Search = 10 Deep Clothing Search Results: Displaying 5 of 11 entries

~~i~~~- 1 r ;.t '~ l

10 Deep Clothing Inc. Spring 2014 Catalog.

Type of Work: Entry not found. Registration Number I Date: TX0007775048 I 2013-09-05

Application Title: 10 Deep Clothing Inc. Spring 2014 Catalog. Title: 10 Deep Clothing Inc. Spring 2014 Catalog.

Description: Book. Copyright Claimant: 10 Deep Clothing Inc. Address: 68 Jay Street, Suite 511, Brooklyn, NY,

11201, United States. Date of Creation: 2013

Date of Publication: 2013-08-16 Nation of First Publication: United States Authorship on Application: 10 Deep Clothing Inc., employer for hire; Domicile: United States;

Citizenship: United States. Authorship: text, photograph(s), artwork. Names: 10 Deep Clothing Inc.

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Contact Us 1 Request Copies 1 Get a Search Estimate 1 Frequently Asked Questions (FAQs) . about Copyright I Copyright Office Home Page 1 Library of Congress Home Page

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http://copyright.gov/help/faq/faq-what.html#certificate[ 12/l/20 14 3: II :43 PM]

I ,, I I 1\1' I've Submitted My Application, Fee, and Copy of My Work to the Copyright Office. Now What? (FAQ) I U.S. Copyright Office

How long does the registration process take, and when will I receive my certificate? The time the Copyright Office requires to process an application varies, depending on the number of applications the Office is receiving and clearing at the time of submission and the extent of questions associated with the application. Current processing times are:

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Plaintiff,

-against-

4 , .. ' . . ...

r '-= ,. ~

HUDSON OUTERWEAR, INC., MAXIMA E-COMMERCE HOLDINGS, LLC and JOHN DOES 1-4, Index No.: ______ _

Defendants.

PLAINTIFF'S MEMORANDUM OF LAW IN SUPPORT OF A TEMPORARY RESTRAINING ORDER AND/OR PRELIMINARY INJUNCTIVE RELIEF

Plaintiff 10 Deep Clothing, Inc. ("1 0 Deep") respectfully submits this Memorandum of

Law pursuant to Rule 65 of the Federal Rules of Civil Procedure to restrain Defendants from

advertising, offering for sale and selling various articles of clothing that infringe on Plaintiffs

original designs.

PRELIMINARY STATEMENT

10 Deep seeks a temporary restraining order and preliminary injunctive relief restraining

Defendants pendent lite from advertising, offering for sale and selling various articles of clothing

that infringe Plaintiffs original design and derivatives.

10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Plaintiff's Memorandum of Law In Support ofTRO and Preliminary Injunction Page 1

STATEMENT OF GENERAL FACTS

Pursuant to a work for hire arrangement, 1 0 Deep created the "Day light" design in 20 13.

(Declaration of Debbie Bresler, hereinafter the "Bresler Decl.," ~ 5.) The design was shown in I 0

Deep's "Full Cycle Fall 2013" catalog (the "Fall 2013 Catalog") both as a rectangular graphic

and on six articles of clothing, namely, the "Dashiki Workshirt," "Dashiki Jersey Hoody,"

"Dashiki Rugby," "Dashiki Sweatpants," "Dashiki Hoody," and the "Larger Living Tee."

(Bresler Decl., ~ 6.) The 2013 Catalog was published on February 22, 2013, and registered for

copyright with the United States Copyright Office on March 15, 2013, under Reg. No.

TX0007708912. (Bresler Decl., ~~ 5, 7; and p. 1 of Exhibit 4 to the Complaint, a screenshot from

the United States Copyright Office website showing registration.)

Based on positive market response, 1 0 Deep used the design again in its Spring 2014

Catalog, including in a "colorway" variation on the "Dashiki Hoody," "Dashiki Sweat Pant" and

"Dashiki Tee." (Bresler Decl., ~ 8.} The Spring 2014 Catalog was published on August 16,2013,

and registered for copyright with the United States Copyright Office on September 5, 2013,

under Reg. No. TX0007775048. (Bresler Decl., ~ 8; and p. 2 of Exhibit 4 to the Complaint.)

10 Deep also used the Daylight design in a monochrome colorway in its Summer 2014

Catalog published on or about December 6, 2013. 1 (Bresler Decl., ~ 10.) The Summer 2014 Catalog was published on or about December 6, 2013, and 10 Deep's application for copyright

registration was completed on December 24, 2013. Due to a backlog at the Copyright Office, the

registration has not yet been issued, but when processing is complete, the registration date will

be December 24, 2013, the date of completion of the application. (Bresler Decl., ~ 10 and Exhibit

4, pp. 3, 5 (highlighted policy from the United States Copyright Office as to date of registration).

In late October 2014, 10 Deep became aware that Defendant Hudson released a "Holiday


10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Plaintiff's Memorandum of Law In Support of TRO and Preliminary Injunction Page2

1 2014 Delivery" sales catalog featuring clothing, the designs of which are substantially similar

to the Daylight Designs, namely, a "Cape Town Short Sleeve Shirt" in Gray, Black and

"Burgandy" [sic], "Cape Town Pull Over Hooded Sweatshirt" in Gray, Black and "Burgandy"

[sic], and Cape Town Jogger Pants" in Gray, Black and "Burgandy" [sic]. (Bresler Decl., ~ 11.)

When 1 0 Deep became aware of the infringements by Defendants, 1 0 Deep

instructed its counsel to serve cease-and-desist letters to Defendants Hudson Outerwear, Inc. and

Maxima E-Commerce Holdings, LLC. (Bresler Decl., ~ 12.) No one responded to the cease-and-

design letters. In mid- to late November, 10 Deep discovered that Defendants had put the

following articles of infringing clothing for sale on their website: the "Cape Town Short Sleeve

Shirt Heather Grey," "Cape Town Short Sleeve Shirt Burgundy," "Cape Town Pull Over Hooded

Sweatshirt Heather Grey," "Cape Town Pull Over Hooded Sweatshirt Black," "Cape Town Pull

Over Hooded Sweatshirt Burgundy," "Cape Town Jogger Pants Heather Grey," and "Cape Town

Jogger Pants Black" (the "Infringing Articles") (Bresler Decl., ~ 13.)

ARGUMENT

To obtain a preliminary injunction, Plaintiff must show "(a) irreparable harm and (b)

either (1) likelihood of success on the merits, or (2) sufficiently serious questions going to the

merits to make them a fair ground for litigation and a balance of hardships tipping decidedly

toward the party requesting the preliminary relief." Christian Louboutin S.A. v. Yves Saint

Laurant America Holding, Inc., 696 F. 3d 206, 215 (2d Cir. 2012), (quoting UBSFin. Servs., Inc.

v. W Va. Univ. Hosps., Inc., 660 F .3d 643, 648 (2d Cir.2011 ). Plaintiff satisfies this test.

I. PLAINTIFF IS LIKELY TO SUCCEED ON THE MERITS

Plaintiff is likely to succeed on the merits by proving copyright infringement on the part

of Defendants. To establish copyright infringement, Plaintiff must first prove ownership of a


valid copyright. Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113

L.Ed.2d 358 (1991). Plaintiff has met this burden. As shown by Exhibit 4 to the Complaint and

attested to by 10 Deep's Director of Production (Bresler Decl., ~~5-9), the catalogs containing

the Daylight Designs were registered for copyright less than a month after their initial

publication.

Second, Plaintiff must demonstrate that "( 1) the defendant has actually copied the

plaintiffs work; and (2) the copying is illegal because a substantial similarity exists between the

defendant's work and the protectible elements of plaintiffs." LaChapelle v. Fenty, 812 F. Supp.

2d 434,439-440 (S.D.N.Y 2011); see also, Muller v. Twentieth Century Fox Film Corp., 794

F.Supp.2d 429, 439 (S.D.N.Y.2011) ("The second element, copying, is comprised of two

requirements: actual copying and improper appropriation," citing Laureyssens v. Idea Group,

Inc., 964 F .2d 131, 139-40 (2d Cir. 1992)).

Actual copying may be established "circumstantially by demonstrating that the person

who [created] the defendant's work had access to the copyrighted material, and that there are

similarities between the two works that are probative of copying," LaChapelle v. Fenty, supra,

812 F. Supp. at 440, citing Jorgensen v. Epic/Sony Records, 351 F. 3d 46,51 (2d Cir. 2003). See

also, Castle Rock Entm't, Inc. v. Carol Pub. Group, Inc., 150 F.3d 132, 137 (2d Cir.1998)

(Copying may be established "by indirect evidence, including access to the copyrighted work,

similarities that are probative of copying between the works, and expert testimony.")

That Defendants had access to the Daylight Designs is irrefutable. Defendant Hudson is a

competitor of 10 Deep, sells into the same market, and markets to the same demographic as 10

Deep, at both wholesale and retail levels. (Bresler Decl., ~ 3.) Long before Defendants created

their Infringing Articles, Plaintiff displayed clothing bearing the Daylight Designs in its catalogs


and web store, and distributed that clothing to street-wear retailers throughout the New York

City area and elsewhere. (Bresler Decl., ~ 14.) Defendants cannot claim ignorance of their

competition or of the very market into which they are selling. Nor can Defendants claim

ignorance of the contents of Plaintiff's website, given that Defendants substantially copied text

from 10 Deep's "About" web page at http://1 Odeep.com/about/about.html and placed it on their

own competing "About Us" web page at http://hudsonouterwear.com/pages/about-us:

10 Deep: "Driven by the same personal strength and energy that bore hip hop, skate, punk and graffiti subcultures, 10.Deep, a cornerstone street wear brand for over fifteen years, communicates the bold power of individuality."


(Bresler Decl., ~ 15.)

Furthermore, the similarities of Defendants' design to the Daylight Designs are probative

of copying, as shown by the images below comparing Plaintiff's and Defendants' respective

short sleeve t-shirts.


'

10 Deep Hudson

In creating the design for the Infringing Articles, Defendants took all the basic elements

of the Daylight Designs and slightly re-configured some of them. The trident motifs have the

same basic constituent parts. Both the Infringing Articles and the Daylight Designs feature five

stripes, the center one of which is dotted. Both use bands of rectangular boxes, alternating

between arrows, large X's (the interiors of which form a diamond shape) and a Spanish tile-like

motif (although the Infringing Articles display a more angular motif). One has to look very

closely and study the designs in order to discern their differences. As such, Plaintiff has satisfied

the standard test for substantial similarity, which queries

"whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same.' [Citation omitted.] In applying the so-called 'ordinary observer test,' we ask whether 'an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work."' LaChapelle v. Fenty, supra, 812 F. Supp. at 441, citing Knitwaves, Inc. v. Lollytogs Ltd.(Inc.), 71 F. 3d 996, 1002 (2d Cir. 1995);

see also, Yurman Design Inc. v. PAJ, Inc., 262 F .3d 101, 108-09 (2d Cir. 1999) ("Generally, an

allegedly infringing work is considered substantially similar to a copyrighted work if the


ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them,

and regard their aesthetic appeal as the same.").

In determining whether there has been an infringement, the finder of fact does not dissect

and compare each individual element of the designs in question, but compares the "total concept

and overall feel" of the original design with the allegedly infringing work. LaChapelle v. Fenty,

supra, 812 F. Supp. at 441, citing Peter F Gaito Architecture v. Simone Development, 602 F. 3d

57, 66 (2d Cir. 2010). As the court noted in LaChapelle,

[A ]defendant may infringe on the plaintiffs work not only through literal copying of a portion of it, but also by parroting properties that are apparent only when numerous aesthetic decisions embodied in the plaintiffs work ... are considered in relation to one another." Canal+ Image UK Ltd. v. Lutvak, 773 F.Supp.2d 419,436 (S.D.N.Y.2011) . ... Ultimately, the inquiry focuses on whether the alleged infringer has misappropriated "the original way in which the author has 'selected, coordinated, and arranged' the elements of his or her work." Knitwaves, 71 F.3d at 1004 (quoting Feist, 499 U.S. at 358, Ill S.Ct. 1282)

LaChapelle v. Fenty, supra, 812 F. Supp. at 442.

Not only are the individual elements of the design used by Defendants either identical or

substantially similar to those of the Daylight Designs, but the total concept and overall feel is the

same. An ordinary observer looking at the two designs would view their aesthetic appeal as

exactly the same and would recognize that the Defendants' design was copied from the Daylight

Designs. Plaintiff has thus met its burden of demonstrating both valid copyrights and

infringement by Defendants.

II. PLAINTIFF WILL BE IRREPARABLY HARMED UNLESS DEFENDANTS ARE ENJOINED FROM ADVERTISING, OFFERING FOR SALE AND SELLING THE INFRINGING ARTICLES.

Defendants are using the Daylight Designs on the same articles of clothing, i.e., t-shirts,

short sleeve shirts, hoodies and sweat pants, sold by Plaintiff. (Bresler Declaration, ,-r 11.)

Plaintiff will suffer irreparable harm in at least three respects if Defendants are allowed to


continue advertising, offering for sale and selling the Infringing Articles. First, 10 Deep is losing

and will continue to lose marketing opportunities for its clothing currently in the marketplace

bearing the Daylight Designs. (Bresler Decl., ~ 16.) Second, Hudson's theft has diminished and

will continue to diminish the commercial value of the Daylight Designs, as there are limited

opportunities in the marketplace for any particular design. (Bresler Decl., ~ 16.) Third, Hudson's

theft of 1 0 Deep's original designs brings disrepute to 10 Deep by falsely associating Hudson

with 10 Deep. (Bresler Decl., ~ 16.) See, Abbott Laboratories v. Sandoz, Inc., 544 F.3d 1341,

1362 (Fed. Cir. 2008) (loss of market share to a competitor while litigation proceeds constitutes

irreparable harm), citing Purdue Pharma L.P. v. Boehringer Ingelheim GmbH, 237 F.3d 1359,

1368 (Fed. Cir. 2001) (likelihood of price erosion and loss of market position are evidence of

irreparable harm); and Polymer Techs., Inc. v. Bridwell, 103 F.3d 970,975-76 (Fed. Cir. 1996)

(loss of market opportunities cannot be quantified or adequately compensated and is evidence of

irreparable harm); see also, WPIX, Inc. v. IVL Inc., 691 F. 3d 275, 285 (2d Cir. 2012) ("live

retransmissions of plaintiffs' copyrighted programming over the Internet would substantially

diminish the value of the programming").

III. THE BALANCE OF HARDSHIPS AND EQUITIES FAVORS PLAINTIFF The balance of hardships clearly tips in favor of Plaintiff, which has established a

likelihood of success on the merits and irreparable harm. If an injunction is not granted,

Defendants will continue to infringe on Plaintiffs copyrights and cause Plaintiff irreparable

harm. As for Defendants, the Infringing Articles constitute a small percentage of their catalog

and, more importantly, "[i]t is axiomatic that an infringer of copyright cannot complain about the

loss of ability to offer its infringing product." WPIX, Inc. v. IVL Inc., 765 F. Supp. 2d 594, 621;

aff'd WPIX, Inc. v. IVL Inc., 691 F. 3d 275 (2d Cir. 2012).


IV. THE PUBLIC INTEREST WOULD NOT BE DISSERVED BY ISSUANCE OF AN INJUNCTION

Finally, the Court must consider the public interest to ensure that it "would not be

disserved" by the issuance of a preliminary injunction. Salinger v. Colting, 607 F. 3d 68, 77 (2d

Cir. 201 0). As the Second Circuit observed in Salinger,

the object of copyright law is to promote the store of knowledge available to the public. But to the extent it accomplishes this end by providing individuals a financial incentive to contribute to the store of knowledge, the public's interest may well be already accounted for by the plaintiff's interest.

Salinger v. Colting, 607 F. 3d at 82.

In this case, the interest and Plaintiff are synonymous - to restrain copyright infringement and

permit the copyright owner to reap the monetary benefit of its creativity.

CONCLUSION.

For the foregoing reasons, a temporary restraining order and preliminary injunction

should issue forthwith.

Dated: DecemberG014 Respectfully subm' ed: GORDON E. . ROY, PC


Attorney for Plaintiff, 10 Deep Clothing, Inc

10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Plaintiff's Memorandum of Law In SupportofTRO and Preliminary Injunction Page9

(] COPY GORDON E. R. TROY, PC Gordon E. R. Troy 5203 Shelburne Road PO Box 1180 Shelburne, VT 05482 (802) 881-0640 Phone (646) 588-1962 Fax [email protected] E-mail




Plaintiff,

-against-


Defendants. Index No. : ______ _


Plaintiff 10 Deep Clothing, Inc. ("10 Deep") respectfully submits this Memorandum of


advertising, offering for sale and selling various articles of clothing that infringe on Plaintiff's

original designs.


1 0 Deep seeks a temporary restraining order and preliminary injunctive relief restraining


that infringe Plaintiff's original design and derivatives.

10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Plaintiff's Memorandum of Law In Support ofTRO and Preliminary Irljunction Page 1


Pursuant to a work for hire arrangement, 10 Deep created the "Daylight" design in 2013.

(Declaration of Debbie Bresler, hereinafter the "Bresler Decl.," ,-r 5.) The design was shown in 10

Deep's "Full Cycle Fall 2013" catalog (the "Fall 2013 Catalog") both as a rectangular graphic

and on six articles of clothing, namely, the "Dashiki Workshirt," "Dashiki Jersey Boody,"


(Bresler Decl., ,-r 6.) The 2013 Catalog was published on February 22, 2013, and registered for


TX0007708912. (Bresler Decl., ,-r,-r 5, 7; and p. I of Exhibit 4 to the Complaint, a screenshot from


Based on positive market response, 10 Deep used the design again in its Spring 2014


"Dashiki Tee." (Bresler Decl., ,-r 8.) The Spring 2014 Catalog was published on August 16,2013,


under Reg. No. TX0007775048. (Bresler Decl., ,-r 8; and p. 2 of Exhibit 4 to the Complaint.)


Catalog published on or about December 6, 2013. 1 (Bresler Decl., ,-r 10.) The Summer 2014

Catalog was published on or about December 6, 2013, and 10 Deep's application for copyright



be December 24,2013, the date of completion ofthe application. (Bresler Decl., ,-r 10 and Exhibit




10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Plaintiff's Memorandum of Law In Support ofTRO and Preliminary lrljunction Page2




[sic], and Cape Town JoggerPants" in Gray, Black and "Burgandy" [sic]. (Bresler Decl., ~ 11.)

When 10 Deep became aware of the infringements by Defendants, 10 Deep









ARGUMENT





Laurant America Holding, Inc., 696 F. 3d 206,215 (2d Cir. 2012), (quoting UBS Fin. Servs., Inc.

v. W Va. Univ. Hasps., Inc., 660 F.3d 643,648 (2d Cir.2011). Plaintiff satisfies this test.




10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Plaintiff's Memorandum of Law In Support ofTRO and Preliminary Injunction Page3

valid copyright. Feist Pubs., Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113


attested to by 10 Deep's Director ofProduction (Bresler Decl., ~~5-9), the catalogs containing


publication.

Second, Plaintiff must demonstrate that "(1) the defendant has actually copied the

plaintiffs work; and (2) the copying is illegal because a substantial similarity exists between the


2d 434, 439-440 (S.D.N.Y 2011); see also, Muller v. Twentieth Century Fox Film Corp., 794


requirements: actual copying and improper appropriation," citing Laureyssens v. Idea Group,

Inc., 964 F .2d 131, 139-40 (2d Cir. 1992)).




812 F. Supp. at 440, citing Jorgensen v. Epic/Sony Records, 351 F. 3d 46, 51 (2d Cir. 2003). See

also, Castle Rock Entm't, Inc. v. Carol Pub. Group, Inc., 150 F.3d 132, 137 (2d Cir.1998)









City area and elsewhere. (Bresler Decl., ~ 14.) Defendants cannot claim ignorance of their


ignorance of the contents ofPlaintifrs website, given that Defendants substantially copied text



10 Deep: "Driven by the same personal strength and energy that bore hip hop, skate, punk and graffiti subcultures, 1 O.Deep, a cornerstone street wear brand for over fifteen years, communicates the bold power of individuality."


(Bresler Decl., ~ 15.)


of copying, as shown by the images below comparing Plaintifrs and Defendants' respective


10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Plaintiff's Memorandum of Law In Support ofTRO and Preliminary /rifunction Page5

10 Deep Hudson









"whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same.' [Citation omitted.] In applying the so-called 'ordinary observer test,' we ask whether 'an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work."' LaChapelle v. Fenty, supra, 812 F. Supp. at 441, citing Knitwaves, Inc. v. Lollytogs Ltd.(Inc.), 71 F. 3d 996, 1002 (2d Cir. 1995);

see also, Yurman Design Inc. v. PAJ, Inc., 262 F.3d 101, 108-09 (2d Cir. 1999) ("Generally, an


10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Plaintiffs Memorandum of Law In Support ofTRO and Preliminary Injunction Page6






supra, 812 F. Supp. at 441, citing Peter F. Gaito Architecture v. Simone Development, 602 F. 3d


[A]defendant may infringe on the plaintiff's work not only through literal copying of a portion of it, but also by parroting properties that are apparent only when numerous aesthetic decisions embodied in the plaintiff's work ... are considered in relation to one another." Canal+ Image UK Ltd. v. Lutvak, 773 F.Supp.2d 419,436 (S.D.N.Y.2011) . ... Ultimately, the inquiry focuses on whether the alleged infringer has misappropriated "the original way in which the author has 'selected, coordinated, and arranged' the elements of his or her work." Knitwaves, 71 F.3d at 1004 (quoting Feist, 499 U.S. at 358, 111 S.Ct. 1282)










short sleeve shirts, hoodies and sweat pants, sold by Plaintiff. (Bresler Declaration, 1f 11.)





bearing the Daylight Designs. (Bresler Decl., ,-r 16.) Second, Hudson's theft has diminished and


opportunities in the marketplace for any particular design. (Bresler Decl., ,-r 16.) Third, Hudson's

theft of 10 Deep's original designs brings disrepute to 10 Deep by falsely associating Hudson

with 10 Deep. (Bresler Decl., ,-r 16.) See, Abbott Laboratories v. Sandoz, Inc., 544 F.3d 1341,




irreparable harm); and Polymer Techs., Inc. v. Bridwell, 103 F.3d 970, 975-76 (Fed. Cir. 1996)


irreparable harm); see also, WPIX, Inc. v. IVL Inc., 691 F. 3d 275, 285 (2d Cir. 2012) ("live



III. THE BALANCE OF HARDSHIPS AND EQUITIES FAVORS PLAINTIFF

The balance of hardships clearly tips in favor of Plaintiff, which has established a





loss of ability to offer its infringing product." WP IX, Inc. v. IVL Inc., 765 F. Supp. 2d 594, 621;

affd WPIX, Inc. v. IVL Inc., 691 F. 3d 275 (2d Cir. 2012).



Finally~ the Court must consider the public interest to ensure that it "would not be

disserved" by the issuance of a preliminary injunction. Salinger v. Colling, 607 F. 3d 68, 77 (2d

Cir. 20 l 0). As the Second Circuit observed in Salinger,

the object of copyright law is to promote the store of knowledge available to the public. But to the extent it accomplishes this end by providing individuals a financial incentive to contribute to the store of knowledge, the pub! ic's interest may well be already accounted for by the plaintiffs interest.

Salinger v. Colling, 607 F. 3d at 82.

In this case, the interest and Plaintiff are synonymous- to restrain copyright infringement and


CONCLUSION.


should issue forthwith.

Dated: December.Got4 Respectfully subm ted: GORDON E. . ROY, PC

Gordon E. R. Troy 5203 Shelburne Road PO Box 1180 Shelburne, VT 05482 (802) 881-0640 Phone (646) 588-1962 Fax gtro,:(a)webtm.com E-mail

Attorney.for Plaint([/,' 10 Deep Clothing, Inc

I 0 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. P/aintfff's Memorandum ofl,cnv In ,)'upport ofTRO and Preliminm~v Injunction Page 9

...

.. (] COPY





Plaintiff,

-against-


Defendants. Index No. : ______ _


Plaintiff 10 Deep Clothing, Inc. (" 10 Deep") respectfully submits this Memorandum of


advertising, offering for sale and selling various articles of clothing that infringe on Plaintiff's

original designs.


10 Deep seeks a temporary restraining order and preliminary injunctive relief restraining


that infringe Plaintiffs original design and derivatives.

10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Plaintiff's Memorandum of Law In Support ofTRO and Preliminary lrljunction Page 1


Pursuant to a work for hire arrangement, 10 Deep created the "Daylight" design in 2013.

(Declaration of Debbie Bresler, hereinafter the "Bresler Decl.," ~ 5.) The design was shown in 10

Deep's "Full Cycle Fall2013" catalog (the "Fall2013 Catalog") both as a rectangular graphic

and on six articles of clothing, namely, the "Dashiki Workshirt," "Dashiki Jersey Hoody,"


(Bresler Decl., ~ 6.) The 2013 Catalog was published on February 22,2013, and registered for


TX0007708912. (Bresler Decl., ~~ 5, 7; and p. 1 of Exhibit 4 to the Complaint, a screenshot from


Based on positive market response, 10 Deep used the design again in its Spring 2014


"Dashiki Tee." (Bresler Decl., ~ 8.) The Spring 2014 Catalog was published on August 16, 2013,


under Reg. No. TX0007775048. (Bresler Decl., ~ 8; and p. 2 of Exhibit 4 to the Complaint.)


Catalog published on or about December 6, 2013. 1 (Bresler Decl., ~ 10.) The Summer 2014

Catalog was published on or about December 6, 2013, and 10 Deep's application for copyright



be December 24, 2013, the date of completion of the application. (Bresler Dec I.,~ 10 and Exhibit





..




[sic], and Cape Town Jogger Pants" in Gray, Black and "Burgandy" [sic]. (Bresler Decl., ~ 11.)

When 1 0 Deep became aware of the infringements by Defendants, 1 0 Deep









ARGUMENT





Laurant America Holding, Inc., 696 F. 3d 206, 215 (2d Cir. 2012), (quoting UBS Fin. Servs., Inc.

v. W. Va. Univ. Hosps., Inc., 660 F.3d 643, 648 (2d Cir.2011). Plaintiff satisfies this test.





valid copyright. Feist Pubs.J Inc. v. Rural Tel. Serv. Co., 499 U.S. 340, 361, 111 S.Ct. 1282, 113


attested to by 10 Deep's Director of Production (Bresler Decl., ~~5-9), the catalogs containing


publication.

Second, Plaintiff must demonstrate that "(1) the defendant has actually copied the

plaintiff's work; and (2) the copying is illegal because a substantial similarity exists between the


2d 434,439-440 (S.D.N.Y 2011); see also, Muller v. Twentieth Century Fox Film Corp., 794


requirements: actual copying and improper appropriation," citing Laureyssens v. Idea GroupJ

Inc., 964 F.2d 131, 139-40 (2d Cir. 1992)).




812 F. Supp. at 440, citing Jorgensen v. Epic/Sony Records, 351 F. 3d 46, 51 (2d Cir. 2003). See

also, Castle RockEntm'tJ Inc. v. Carol Pub. GroupJ Inc., 150 F.3d 132, 137 (2d Cir.l998)







10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Plaintiff's Memorandum of Law In Support ofTRO and Preliminary Irljunction Page4


City area and elsewhere. (Bresler Decl.,, 14.)Defendants cannot claim ignorance of their


ignorance of the contents of Plaintiffs website, given that Defendants substantially copied text



10 Deep: "Driven by the same personal strength and energy that bore hip hop, skate, punk and graffiti subcultures, 1 O.Deep, a cornerstone street wear brand for over fifteen years, communicates the bold power of individuality."

Defendants' Website: "Driven by the same strength and energy that bore hip hop, sports, and the urban streetwear lifestyle, Hudson Outerwear - a cornerstone streetwear brand -communicates the bold power of individuality."

(Bresler Decl.,, 15.)


of copying, as shown by the images below comparing Plaintiffs and Defendants' respective


10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Plaintiff's Memorandum of Law In Support ofTRO and Preliminary Irljunction Page 5

10 Deep Hudson









"whether an ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard the aesthetic appeal as the same.' [Citation omitted.] In applying the so-called 'ordinary observer test,' we ask whether 'an average lay observer would recognize the alleged copy as having be.en appropriated from the copyrighted work."' LaChapelle v. Fenty, supra, 812 F. Supp. at 441, citing Knitwaves, Inc. v. Lollytogs Ltd.(Inc.), 71 F. 3d 996, 1002 (2d Cir. 1995);

see also, Yurman Design Inc. v. PAJ, Inc., 262 F.3d 101, 108-09 (2d Cir. 1999) ("Generally, an



..






supra, 812 F. Supp. at 441, citing Peter F. Gaito Architecture v. Simone Development, 602 F. 3d


[A ]defendant may infringe on the plaintiffs work not only through literal copying of a portion of it, but also by parroting properties that are apparent only when numerous aesthetic decisions embodied in the plaintiffs work ... are considered in relation to one another." Canal+ Image UK Ltd. v. Lutvak, 773 F.Supp.2d 419, 436 (S.D.N.Y.2011) . ... Ultimately, the inquiry focuses on whether the alleged infringer has misappropriated "the original way in which the author has 'selected, coordinated, and arranged' the elements of his or her work." Knitwaves, 71 F.3d at 1004 (quoting Feist, 499 U.S. at 358, 111 S.Ct. 1282)










short sleeve shirts, hoodies and sweat pants, sold by Plaintiff. (Bresler Declaration, ,-r 11.)


10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Plaintiff's Memorandum of Law Tn Support ofTRO and Preliminary Injunction Page7



bearing the Daylight Designs. (Bresler Decl., ,-r 16.) Second, Hudson's theft has diminished and


opportunities in the marketplace for any particular design. (Bresler Decl., ,-r 16.) Third, Hudson's

theft of 10 Deep's original designs brings disrepute to 10 Deep by falsely associating Hudson

with 10 Deep. (Bresler Decl., ,-r 16.) See, Abbott Laboratories v. Sandoz, Inc., 544 F.3d 1341,




irreparable harm); and Polymer Techs., Inc. v. Bridwell, 103 F.3d 970,975-76 (Fed. Cir. 1996)


irreparable harm); see also, WPIX, Inc. v. IV!, Inc., 691 F. 3d 275, 285 (2d Cir. 2012) ("live



III. THE BALANCE OF HARDSHIPS AND EQUITIES FAVORS PLAINTIFF The balance of hardships clearly tips in favor of Plaintiff, which has established a





loss of ability to offer its infringing product." WPIX, Inc. v. IV!, Inc., 765 F. Supp. 2d 594, 621;

affd WPIX, Inc. v. IV!, Inc., 691 F. 3d 275 (2d Cir. 2012).


..


Finally, the Court must consider the public interest to ensure that it "would not be

disserved'' by the issuance of a preliminary injunction. Salinger v. Colling, 607 F. 3d 68, 77 (2d

Cir. 201 0). As the Second Circuit observed in Salinger,

the object of copyright law is to promote the store of knowledge available to the public. But to the extent it accomplishes this end by providing individuals a financial incentive to contribute to the store of knowledge, the public's interest may well be already accounted for by the plaintiff's interest.

Salinger v. Colling, 607 F. 3d at 82.

In this case, the interest and Plaintiff are synonymous- to restrain copyright infringement and


CONCLUSION.


should issue forthwith. ~

Dated: December), 2014 Respectfully subm ted: GORDON E. . ROY, PC


Attorney for Plaint[[(, 10 Deep Clothing, Inc

10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Plaint[ffs A4emorandum of /,aw In Support qf'TRO and Preliminmy il?izmction Page 9





Plaintiff,

-against-

1'4 cv ,.

HUDSON OUTERWEAR, INC., MAXIMA COMMERCE HOLDINGS, LLC and JOHN DOES 1-4, Index No. : ______ _

Defendants.

DECLARATION OF DEBBIE BRESLER

I, Debbie Bresler, hereby declare as follows:

1. I am Director of Production for Plaintiff 10 Deep Clothing, Inc. ("10 Deep") and

make this declaration in support of 10 Deep's request for a temporary restraining order and

preliminary injunction to restrain Defendants from advertising, offering for sale and selling

certain articles of clothing that infringe on 10 Deep's original designs.

2. 10 Deep is a cornerstone street-wear clothing brand operating for over fifteen

years. It sells originally designed clothing to retailers via its catalogs and to consumers via its

webstore at 1 Odeep.com.

10 Deep Clothing, Inc. v. Hudson Outerwear, Inc., et al. Declaration of Debbie Bresler Page 1

3. Defendant Hudson Outerwear, Inc. ("Hudson") has, fo

Documents

10 Deep Clothing v. Hudson Outerwear.pdf