In a move that is getting lots of press, New York influencer and fashion blogger Danielle Bernstein’s company WeWoreWhat (WWW) filed a lawsuit on Oct. 16 for a declaratory judgment in the U.S. District Court for the Southern District of New York against Brooklyn lingerie startup The Great Eros. Reportedly, The Great Eros had requested in August that WWW cease and desist from using a design involving human silhouettes on its products that is similar to one The Great Eros uses on its tissue paper used to wrap customer purchases.

Two companies using similar designs

According to WWW’s complaint, in its letter, The Great Eros had asserted copyright infringement, unfair competition and unauthorized use of its trade dress. WWW says that its own team created the design independently inspired by Henri Matisse’s artistic style as well as by the “generally ubiquitous concept of silhouette drawings of the human form.”

A few days after its August cease-and-desist letter, The Great Eros sent a draft complaint to WWW that it was considering filing against WWW. WWW responded by filing its own Oct. 15 lawsuit, this one for declaratory judgment. WWW alleges that the defendant never alleged in its correspondence that the two silhouette designs are “substantially similar.”

Copyright infringement definition

Under federal copyright law, to infringe on a copyright, a party must copy the protected work of another in a way that is identical or substantially similar. WWW disputes that its design is substantially similar to that of The Great Eros. For example, WWW describes ways that its design differs slightly from that of The Great Eros, says that no one can copyright the “concept of silhouettes of the human form” and that WWW’s staff did not have access to the defendant’s tissue paper, a point that The Great Eros disputes.

We know this because Fashionista in an article writes that it has seen a copy of The Great Eros’ draft complaint, which stated that Bernstein has visited its showroom. The Fashionista article has images of both designs side by side and they do appear quite similar.

Interesting strategy

WWW’s legal strategy is a noteworthy approach to facing an accusation of copyright infringement. Instead of negotiating toward a settlement or license, or agreeing to stop using its design, WWW responded with its own lawsuit to ask the court to make legal determinations of the parties’ respective rights and legal claims.

This dispute will likely continue to receive public attention and we will keep readers up to date on any important developments.

(The declaratory judgment complaint in WeWoreWhat, LLC, and Onia, LLC, v. CV Collection, LLC, d/b/a The Great Eros is available on Westlaw at 2020 WL 6110806.)