Infringement cases brought by companies that purport to own copyrights in fabric designs have proliferated over the past ten years. In the Central District of California, more than 1,000 such cases have been filed over that time period, many by a handful of repeat plaintiffs, such as Star Fabrics, Inc.
Pietz & Shahriari often represents defendant retailers and wholesalers in fabric copyright infringement cases. The firm has been on the leading edge of making law that helps defendants in these cases.
One example is a case called Star Fabrics, Inc. v. Zulily, LLC, et al., 17-cv-8358. In this case, on behalf of a national online retailer, Pietz & Shahriari filed a motion early-on that was granted by district court, resulting in dismissal of one of the claims, which was a win for the defendants.
The firm argued that Star could not show substantial similarity between the original aspects of Star’s design and the defendants’ products, as a matter of law. The court agreed,
The Court finds the analogy to Ets-Hokin II persuasive. Here, Star similarly has only a thin copyright, because the zig-zag pattern constitutes a shared concept that must be subtracted for purposes of the extrinsic test.
“As far as Zulily can tell”—and the Court agrees—“nothing about Subject Design A is conceivably original, except, perhaps, the color selection,” which is vastly dissimilar to the color scheme of Subject Pattern A and hence not ‘virtually identical.’ Mot. 20:21–25. Therefore, Design A and Product A are not substantially similar: once the unprotectable zig-zag element is filtered out from Design A, it does not bear a substantial similarity to Product A.
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