By Ariel Givner
(The Fashion Law)
Kiini and Victoria’s Secret have recently settled a lawsuit that Kiini filed in U.S. District Court for the Central District of California back in October 2015. New York-based Kiini, which has gained a “cult-like following and is known for the original, distinct, copyright-protected swimwear designs,” initiated the action against the lingerie giant for copyright infringement, trade dress infringement, and unfair competition.
According to Kiini’s complaint, Victoria’s Secret produced a bathing suit that looked “virtually indistinguishable” to its original bikini design. Though the terms of the settlement are confidential, the suit is worth reflecting on.
As Kiini set forth in its complaint, Victoria’s Secret allegedly marketed and sold an infringing copy of Kiini’s well-known bikini design “in the pursuit of its own self promotion and profit, and to Kiini’s unfair harm and detriment.” The Kiini swimsuit in question – which is stocked by high end retailers, such as Barneys, Bergdorf Goodman, and Net-A-Porter and retails for $165 for a top and $120 for a bottom – has “become a much sought after bikini.” In addition to being featured in an array of editorials, it has been worn by numerous celebrities, “including Heidi Klum, Ellie Goulding, Cara [Delevingne] and Dree Hemmingway,” among others.
Ipek Irgit, the founder and creative director of Kiini, obtained federal copyright protection for the bikini design in December 2014, making Kiini the “sole and exclusive owner to all right, title, and interest in and to the copyright to the design.” The brand alleges that in addition to enjoying federal copyright protection, it has developed trade dress rights, as “the purchasing public has come to associate the distinct Kiini trade dress with Kiini, and Kiini trade dress has achieved secondary meaning.”
The trade dress at issue consists of: “1) a triangle profile bikini; 2) a distinctive, rectangular crochet pattern that borders the edges of the bikini; 3) the rectangular geometric pattern is doubled at the bottom edge of the bikini top, and the top edge of the bikini bottom; 4) bright color blocking resulting from a woven interlaced pattern of contrasting colored and textured material, specifically elastic and crochet yarn; and, 5) the bikini top’s upright triangle profile and the bikini bottom’s upside down triangle profile.”
For the uninitiated, trade dress extends to the total image of a product and can be based on shape, size, color, texture, and graphics. In order to be eligible for trade dress protection, a design must serve as a non-functional identifier of source. Per Kiini, the triangle designs featured on the bathing suit at issue are in no way functional and that “the only reason to copy the Kiini trade dress is to attempt to trade off its goodwill and draw sales away from Kiini. This is exactly what [Victoria’s Secret] has unfairly and unlawfully done here.”
Kiini goes on to bolster its claim by stating that it is not the only one who noticed the similarities between its designs and the Victoria’s Secret copies. According to Kiini’s complaint, “several discerning customers have generated electronic content posted on popular social media, referring to the Victoria’s secret copy infringing design, and stating: ‘totally kinii [sic] knock off,’ ‘kiini copiers,’ and ‘Victoria’s secret knock off kiini.’”
The complaint continues on to note that the similarities between its design and the Victoria’s Secret copy gave rise to actual confusion amongst consumers and offered evidence that consumers “queried on photos” of the Victoria’s Secret copy, asking: “Is this a Kiini swimsuit or a Victoria’s Secret?” Victoria’s Secret allegedly ignored the customer comments “chiding it for stealing the Kiini design, and they continue to intentionally market and sell their imitations.”
Kiini originally sought preliminary and permanent injunctive relief “against the ongoing infringement of its legal rights, and damages, both actual and statutory, for the violations of Kiini’s rights to date.” Interestingly, in the time since the brand filed suit, Victoria’s Secret has folded its swimwear division entirely to focus exclusively on lingerie and loungewear.