Tangle is bulking up the copyright infringement complaint that it filed against Aritzia this spring by adding a new trade dress infringement cause of action. According to the complaint that it filed in a federal court in Northern California this month, Tangle, Inc. claims that it “owns all exclusive rights” in a set of sculptural works created by its founder Richard Zawitz, including “the rights to reproduce the copyrighted [sculptural] works in copies [and] to prepare derivative works based upon the copyrighted works,” and to exclusively offer up the source-identifying trade dress, which Tangle says that Aritzia is “willfully and deliberately” infringing.
Some Background: Tangle first filed suit against Aritzia in March, alleging that the buzzy Gen Z retailer “has been displaying and continues to display” more than 100 sculptures that are “identical to the TANGLE sculptures” in the windows of its retail stores in the U.S. and Canada, as well as in digital media and its Spring 2023 ad campaign. According to Tangle, Artizia’s “copycat” sculptures are made of the same “interlocking, 90-degree curved pieces” as its own works. Moreover, like the genuine TANGLE sculptures, “most of the infringing sculptures consist of 18 such interlocking constituent pieces, [and] additionally, the bright pink color and chrome finish [of Aritzia’s sculptures] is identical to the chrome pink color utilized by [Tangle] for [its] Palm Metallic Pink [sculpture].”
Tangle on TikTok – Delving into the digital media aspect of its use of the lookalike sculptures, Tangle claims that “copies of the infringing sculptures were disseminated to millions of consumers,” namely via social media. “One TikTok showing the infringing sculptures has been viewed over 9 million times at the time of this filing,” the plaintiff claims in its amended complaint, while “another had over 7 million views.”
In addition to setting out a copyright infringement claim, as it first did this spring, Boies Schiller-represented Tangle has added a trade dress claim to the mix, asserting that Aritzia has “traded upon [its] reputation and goodwill by creating, displaying, and selling at auction sculptures that infringe … its protected distinctive trade dress, and have caused actual consumer confusion.” (Tangle contends that after Aritzia removed “hundreds (perhaps more than 300) [of] infringing sculptures from their store fronts,” the sculptures were auctioned off and unsold sculptures were “destroyed.”)
Not mincing words, Tangle claims that Aritzia’s “infringing sculptures are slavish copies of the original chrome Tangle sculpture, which [it has] offered [up] since 1981 and is currently available from authorized outlets including the Museum of Modern Art’s Design Store.”
As for what San Francisco-based company’s trade dress consists of, that is the “distinctive pink chrome” hue of the sculptures, which it maintains is “famous and recognized by consumers. Specifically, Tangle asserts that it has made use of a “bright pink color and chrome finish” on its sculptures for four decades and that over that time, it has not only “marketed a variety of sculptural works and toys in pink chrome, [but] has made significant investments in marketing and creating public associations between the Tangle brand and the pink chrome that [Aritzia] unlawfully appropriate in [its own] infringing sculptures.”
TLDR: “By using the TANGLE trade dress in connection with the promotion of its goods, as well as the sale at auction of counterfeit TANGLE products,” Aritzia “creates a false designation of origin and a misleading representation of fact as to the origin and sponsorship of the infringing products.” (Note: I am not sure where the counterfeiting comes in given that while the Tangle name – which Tangle is not claiming infringement of – is registered with the U.S. Patent and Trademark Office, the alleged trade dress is not.)
With the foregoing in mind, Tangle sets out two causes of action: copyright infringement and trade dress infringement under 15 U.S.C. § 1125(a), and is seeking monetary damages.
An Aritzia spokesperson told TFL this spring in response to the initial filing that the allegedly infringing sculptures “were created by Aritzia’s in-house designers who strive to create an Everyday Luxury, aspirational shopping environment for our clients. Boutique visual displays are seasonal in nature and have been taken down in the normal course.”
The case is Tangle, Inc. v. Aritzia, Inc., 3:23-cv-01196 (N.D. Cal.)
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