Photo: Cindy Ord / Getty Images for NYFW: The Shows
Earlier this year, WeWoreWhat accused Danielle Bernstein of copying (again) an independent brand. But this time around, the story unfolds differently – and she's the one filing a copyright lawsuit. Let's try to explain.
As part of an ongoing swimwear partnership with Onia, WeWoreWhat introduced line-drawing printing of bodies on white backgrounds. After being successful in this category, it launched more products, including peel-and-stick wallpapers, scarves, and active wear.
However, some noticed what this piece of art looked like, how it has been used by Brooklyn-based Intimates brand The Great Eros on the tissue paper it wraps its pieces in since its inception. The brand and its founder Christina Viviani received a lot of messages from fans pointing out the similarities.
Photo via filing WEWOREWHAT, LLC and ONIA, LLC, v. CV COLLECTION, LLC, d / b / a THE GREAT EROS
According to a lawsuit filed in New York on Thursday, The Great Eros called WeWoreWhat privately and went so far as to send an injunction to Bernstein's brand on August 10, accusing them of "and committed copyright infringement" (ing) in unfair competition "through the use of pressure on products.
However, the lawsuit in question was not brought by The Great Eros: it was brought against The Great Eros by WeWoreWhat, LLC and Onia, LLC.
Basically, WeWoreWhat and Onia want the court to officially declare that they have not copied anyone. Officially, they are seeking "a declaratory judgment that Plaintiffs' use of their WWW Silhouettes Design does not infringe or otherwise infringe the alleged copyright or other rights of the Defendant under the Lanham Act or Common Law".
In the filing, WeWoreWhat argued that its design was independently created and "inspired by the generally ubiquitous concept of silhouette drawings of the human form along with a number of line drawings by Henri Matisse".
"No one, including the defendant, has the concept of the silhouettes of the human form," the file said. Plaintiffs also said they had investigated the design process of the print and found that no one associated with WeWore had ever bought or received a product from The Great Eros that was wrapped in the aforementioned tissue paper. Additionally, the filing indicates minor differences in the two designs such as: For example, that WeWoreWhat's print includes heads while The Great Eros does not, and that there are differences in the way the bodies are set up.
In its coverage of the case, Fashion Law provides some insight into how these claims could be legally viewed:
In accordance with copyright law, the level of copyright protection is granted when the level of creativity or originality in a work is low, also because there are only so many ways to represent a certain thing such as a silhouette of the human body, the owner of the copyright is considered to be "thin". While protection exists, claims for infringement are generally limited to verbatim copying or to cases where the infringing work is "virtually identical" to the work of the copyright owner
The filing also alleges that The Great Eros submitted a draft legal complaint to WeWoreWhat on October 13th, alleging "Copyright infringement and unfair competition claims under the Lanham Act and legal claims relating to unfair business practices ", which the former threatened to report in court – which means: WeWoreWhat and Onia filed their lawsuit two days later, apparently to defeat the Great Eros.
Fashionista has received a copy of this complaint that contains information not included in the WeWoreWhat filing. For example, Bernstein actually visited The Great Eros' showroom before manufacturing the allegedly infringing product and even "asked about receiving the plaintiff's products in exchange for promoting The Great Eros" through their social media channels. "(The Great Eros declined.) On October 13, the same day the draft complaint was sent to WeWoreWhat, The Great Eros registered its design with the Copyright Office.
The complaint also highlights the importance of design to The Great Eros' business, describing the printing as part of its "brand identity" and a "source identifier" so that WeWoreWhat's use of similar printing may result in consumers mistaking its products associate with these The Great Eros.
The complaint alleges that, by continuing to sell the allegedly infringing products, WeWoreWhat will cause "The Great Eros" to continue to suffer significant damage to the plaintiff's business in the form of trade diversion, loss of profit and depreciation of the plaintiff's goods. "
"Low quality goods or" fast fashion "appeal, if associated with the plaintiff, could damage his reputation," he also notes. The complaint alleges that WeWoreWhat should be responsible for such damage as well as "Defendant's profits resulting directly or indirectly from such violation". Attempts have also been made to withdraw all infringing products from the market. It cites the Lanham Act, the federal law that governs trademarks, service marks, and unfair competition. as well as California Common Law, which prohibits false advertising and illegal business practices, as existing legislation to support its claims.
Although this exact complaint has never been filed, The Great Eros will still be fighting a battle.
"Ms. Bernstein's inadmissible suit is dismissed and The Great Eros will continue to protect and enforce her rights in full," the brand's attorney Jeff Gluck told Fashionista in a statement.
Gluck also shared a long list of narrow, if not exact, similarities between the two designs, including color scheme (black drawing on bare or white background), stroke weight, stroke of each drawing, rotation of each drawing, amount of negative space, and identical length and width seen from almost every part of the body.
The Great Eros responded to the lawsuit in its Instagram stories on Friday.
"For the past 4 years, as a small brand, we've gone to great lengths to make sure you are all comfortable and create things with integrity. We use sustainable practices that we know will make people feel comfortable in themselves and." to feel safe with their objects for years to come, "it wrote. "At that moment everything is being taken away because Danielle is taking us for everything we own over a design she allegedly stole from us and is now suing us for bullying us into submission."
"We'll love to be the brand that sets the precedent and stands up to you and your oppression until you try to close our doors, even if we have to spend every penny we have in court in the years to come. We will be relentless. " in our pursuit of justice against you, "it went on." You know, you not only sued us with this lawsuit, you sued every little independent designer, business owner and artist, and thanks to you we are finally united against you . "
In a "P.S." The brand also called Onia and Macy's as "accomplices" and concluded that "@onia will be blocking your future orders. @Weworewhat stop asking us for free products."
This is certainly not the first time Amber has come under fire for its products (although it is the first time things have gone up to a lawsuit). There was her 2018 jewelry collaboration with Lulu DK, which resembled pieces from Foundrae, Retrouvai and Bondeye and was eventually pulled by Nordstrom. She was back in the Diet Prada spotlight this summer on charges of copying a mask design from By Second Wind – after asking the brand to give her the mask in question. (Bernstein later claimed she started making her masks before meeting By Second Wind, adding, "A chain on a mask is not an original concept, and I never said this was my own.") There was also this weird drama between Bernstein and a Poshmark salesman who somehow got his hands on the exact silhouette print swimsuit WeWoreWhat X Onia before it was released.
Suffice it to say that amber is no stranger to controversy.
A WeWoreWhat x Onia representative did not immediately respond to our request for comment. We will keep updating this story as more information becomes available.
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