fortnite-copyright-orange-shirt-kid-trademark-lawsuit-300x229The Orange Shirt Kid sued Fortnite’s creator for copyright and trademark infringement for using his signature “Random” dance moves and catchphrase “It’s also a great exercise move!” in the wildly popular videogame.  The Kid shot to YouTube stardom in 2018 after posting his Random dance video and catchphrase.  Fortnite is a free-to-play video game that generates income from in-game purchases, including avatars performing dances.  The complaint alleges:

Like selling a cheap knockoff, Defendants sold the Random dance in-game and simply renamed it to “Orange Justice.”  However, the Orange Justice and the Random are one and the same.  Indeed, this is made plain by the caption text that accompanies the Orange Justice that is the same as the Orange Shirt Kid’s Catchphrase “It’s also a great exercise move” as well as the name of the emote—“Orange Justice” is an obvious reference to “Orange Shirt Kid.”  Defendants did not credit Orange Shirt Kid nor seek his consent to use, display, reproduce, sell, or create a derivative work based upon Orange Shirt Kid’s Random dance or likeness in Fortnite. Defendants also did not seek his consent to use the Catchphrase in Fortnite.

The Orange Shirt Kid’s lawsuit is the latest in a string of similar suits alleging Fortnite creators copied other people’s dance moves for sale in the videogame.  The complaint references Epic Games, Inc.’s alleged copying of “the Backpack Kid’s ‘Floss’ dance (which is known by the same name in-game)…Alfonso Ribeiro’s performance of his famous dance on The Fresh Prince of Bel-Air television show (named the “Fresh” emote)…and 2 Milly’s ‘Milly Rock’ dance (named the ‘Swipe It’ emote).”

chair-design-patent-copyright-furnitureAmini designs and sells unique furniture at various tradeshows and through distributors and its furniture designs are featured in magazines and on popular websites.  Amini obtains intellectual property protection for its furniture designs, including three copyright registrations (Reg. Nos. VA 1-627-918; VA 1-627-828; VA 1-627-832) and three design patents (Design Patent Nos. D592,893 for a table; D644,852 for a China cabinet-buffet; and D576,409 for a chair).  These registrations are for various items such as china cabinets, arm chairs, and tables.

Amini is suing Cosmos Furniture, both its U.S. and Canadian companies, for copyright infringement, design patent infringement, and breach of settlement agreements.  In a prior litigation, Amini sued Cosmos Canada for copyright infringement and design patent infringement.  Before trial, Cosmos Canada settled by agreeing to cease sales of the accused furniture and removing the products from their website.  This 2009 agreement extended to all companies, affiliates, and employees related to Cosmos Canada, which includes Cosmos U.S.

In 2011, Amini allegedly learned that many of the items in the settlement agreement were reintroduced to the website and still sold.  Amini notified Cosmos and another settlement agreement was reached.  This second settlement agreement required Cosmos to exercise due diligence to avoid infringing Amini’s designs, and specifically itemized Amini’s intellectual property rights that could not be violated.

Sugarfina sells premium gourmet candy, including alcohol flavored gummy bears, including luxurious gift packages sold in stores, hotels, and food retailers.  Sugarfina started in 2012 and because of early popularity, federally registered many intellectual property rights, including design patents, copyrights, and trade dress protection for its products and packaging.  Sugarfina’s trade dress protection includes its products’ designs, appearance, and packaging, including features like the square and rectangular shapes, the color combinations, the clear top cubes with a patterned band and shapes, and the bottom container holding a series of cube wells or trays.  Its copyrights cover the box for its clear candy cubes, spaced arrangements, spaced cube receiving wells, and the distinctive boxes use for the clear cubes (Reg. Nos. VA00019663482 and VA0001963483).  Lastly, Design Patent No. D763,684 protects Sugarfina’s “Candy Bento Box” packaging design.  Trade-Dress-Packaging-Candy-1024x363

Bouquet Bar and its owners are sued for federal trade dress infringement, federal false designation of origin and unfair competition, federal patent infringement, federal copyright infringement, and state unfair competition.  Defendants began in 2017 selling gummy bears and other candy products in square and rectangular shaped packaging.  Bouquet Bar appeared on an ABC show called Shark Tank, where they presented their products to a group of wealthy investors.  During the course of the TV show, one investor specifically mentioned that “[t]his looks just like Sugarfina” and advised the owners that they need to pursue something different or more unique.  Additionally, defendants had worked events as a flower vendor where Sugarfina products were present, making them aware of the Sugarfina’s brand and intellectual property rights.

In October 2017 and January 2018, Sugarfina sent Bouquet Bar cease and desist letters and attempted face-to-face meetings to settle the issue to no avail.  Thus, Sugarfina alleges that Bouquet Bar is intentionally copying its trade dress with the intent to cause consumer confusion, despite advice from entrepreneur experts and cease and desist letters.  The Supreme Court held that product design trade dress could not be inherently distinctive and required secondary meaning.  Wal-Mart Sores v. Samara Bros., 529 U.S. 205, 211 (2000).  However, product packaging can be inherently distinctive if it is arbitrary, fanciful, or suggestive.  Id.  Because Sugarfina does not have a federally registered trade dress in its product packaging, it would have to prove that its product packaging is inherently.

On August 10, 2018, I have the pleasure of speaking at CLE-picture-300x105Bridgeport Continuing Education’s “What Makes Jurors Tick?” seminar at Hotel Indigo LA Downtown.  I will discuss how to successfully communicate complex and technical information to jurors.  Click here for more information and to register for the seminar.

House of Lashes is a Southern California beauty company that sells eyelashes, beauty products, and accessories, and is well known in the beauty and eyelash industry.  House of Lashes owns the federally registered ICONIC trademark (Reg. No. 4.839,324) for false eyelashes, adhesives for affixing eyelashes, and artificial eyelashes.  Additionally, House of Lashes has a federal copyright registration for a photograph of its “Iconic” lashes (Copyright Reg. No. VA 1-996-524).  House of Lashes’ ICONIC brand of lashes is one of its most popular products and designs on the market and is sold online as well as in many stores nationwide.  Additionally, House of Lashes alleges that its product’s packaging is inherently distinctive because it is unique in the eyelash industry, and combines elements making it recognizable to consumers without accompanying words.Final-image-273x300

Kiss Nail Products is a competitor in the beauty industry that began selling “Iconic” brand eyelashes on websites and in stores.  On April 24, 2018, House of Lashes sent Kiss Nail Products a cease and desist letter, and the latter responded that it would not be complying with the cease and desist letter and would continue to make and sell “Iconic” branded eyelashes.  Thus, House of Lashes is suing Kiss Nail Products for (1) infringement of registered trademarks (15 U.S.C. § 1114), (2) unfair competition (15 U.S.C. § 1114), (3) false designation of origin (15 U.S.C. § 1125(a)), (4) trade dress infringement (15 U.S.C. § 1125(a)), (5) copyright infringement (17 U.S.C. § 501), (6) registered trademark infringement (Cal. Bus. & Prof. Code § 14335), (7) unfair competition and false designation of origin (Cal. Bus. & Prof. Code § 17200 et seq. and § 17500), and (8) declaratory judgment.

House of Lashes alleges money and time investment in building a loyal fan base and protecting its ICONIC trademark, including a strong social media presence with millions of followers, videos with 18 million views, and estimates over a billion impressions related to their ICONIC brand eyelashes.  House of Lashes argues that the defendant’s purpose in using the Iconic trademark and packaging trade dress is to cause confusion or to deceive customers.  Defendant is also accused of intentionally copying the design, layout, visual presentation, and arrangement in photographs displaying the eyelashes, thereby infringing House of Lashes’ copyrighted photographs.

Morphe, a well-known makeup company, is suing Becca in response to threats Morphe’s new eyeshadow palette’s packaging constitutes trade dress infringement, false designation of origin, and palming off under the Lanham Act.  15 U.S.C. § 1051.  Becca also alleges that Morphe has tortiously interfered with Becca’s contract with Jaclyn Hill, a makeup artist that Morphe now works with.  The palette in question is also a project with Jaclyn Hill, in which she teamed up with Morphe to create a line of eyeshadow palettes.  The first palette was very popular and called “the Jaclyn Hill Palette.”  Morphe and Jaclyn Hill created a second set of palettes called the “Vault” collection.  The announcement generated lots of publicity for Morphe and on Jaclyn Hill’s Instagram, YouTube, and Twitter pages.


Pictures taken from complaint.


Morphe’s Vault collection’s packaging design features a white box with a silver background behind the logo and a confetti look with colors and shapes expanding from the center.  The logo features Morphe’s name and Hill’s signature.  More than six weeks after the announcement, Becca sent Morphe a cease and desist letter claiming common law trademark rights to the design.  Becca mentioned their previous contract with Jaclyn Hill and stated that their palette with Hill had extensive use giving them common law trademark rights.  However, Becca provided no federal registration for the packaging and allegedly had not sold, marketed or used the packaging in the U.S. for the last two years.  Becca allegedly is also unable to resume use of this mark due to contractual obligations.

Star Fabrics, Inc. is suing Cost Plus, a well-known retailer, for copyright infringement of artwork on fabric.  Los Angeles based Star Fabrics owns a two-dimensional artwork print registered with the U.S. Copyright Office (Reg. No. VA 1-764-261).  Star Fabrics alleges that Cost Plus had access to their two-dimensional fabric design due to Star Fabrics’ widespread dissemination of the fabric to numerous parties in the fashion and apparel industries.  Star Fabrics alleges that Cost Plus and other defendants created garments with the same copyrighted design and sold them with a World Market label.


Taken from the complaint.

To prove copyright infringement, proof of ownership of the allegedly copied work as well as copying of the protected elements of the copyrighted design are required.  Narell v. Freeman, 872 F.2d 907, 910 (9th Cir. 1989).  Star Fabrics’ certificate of copyright registration is prima facie evidence of validity and ownership.  Next, because there is likely no direct evidence of copying, Star Fabrics must prove that the defendants had access to its design and that the two designs are substantially similar.  Star Fabrics lists many ways in which the defendants may have had access to their design, including their showroom, illegally distributed copies of the design by vendors, or access to materials in the marketplace lawfully using the pattern.

The Heroes Project is a charitable organization helping veterans with mental, physical, and emotional obstacles since 2009.  The Heroes Project is suing Operation Hero Project for federal trademark infringement (15 U.S.C. § 1114), federal unfair competition/false designation (15 U.S.C. § 1125(a)), common law trademark infringement, and common law unfair competition.  Because charitable organizations are geared to a certain cause, the names or trademarks will sound similar and it is important to distinguish and protect the marks to avoid confusion, especially among donors.

The Heroes Project provides veterans expedition opportunities, community support, and a voice to the world.  The Heroes Project doeslogo this through cycling events and mountain climbing expeditions to places such as, Mount Kilimanjaro, Mount Elbrus, Mount Aconcagua and more.  The Heroes Project’s efforts are featured on many news stations and are also supported by many well-known celebrities and musicians, increasing its popularity.  The Heroes Project has used its mark for charitable fundraising since at least May 2010, including through its website,  The Heroes Project filed a federal trademark application in 2013, which registered in 2017.

Defendant Operation Hero Project offers similar charitable activities and fundraisers aimed towards veterans.  Operation Hero Project operates a website,, as well as a Facebook page under the same trademark.  Operation Hero Project’s activities include climbing excursions, bike rides, golf tournaments and other fundraising events.  Before the lawsuit, Plaintiff alleges it sent a cease and desist letter to Defendant asserting its trademark rights, but Defendant refused to cease use of their mark in April 2018.



Brett Daniels, a professional magician, collaborated and contracted with defendants Simon Painter and Timothy Lawson on a variety of live magic shows and a potential magic show for television.  Daniels performed in many live magic shows as one of the group’s largest attractions, using his copyrighted method and choreography to make large vehicles appear out of thin air.  Daniels owns the proprietary rights to the concept, apparatus, and method of operation of his “Appearance Illusion,” for which he’s known throughout the magic community.  Daniels ceased performing in the live magic shows, but continued to contribute creatively to the business.  Daniels played a large part in scouting talent for the show, recruiting all but one of the initial performers in the show.  Additionally, Daniels used his TV connections to help further the prospects of a TV magic show.

The situation escalated when a Venezuela tour date was added by Painter and Lawson.  After arriving in Venezuela, the materials and equipment of the acts were seized. Daniels claims that this was a plan by Painter and Lawson and that they would not assist him in leaving the country.  While dealing with a serious illness for five days, Daniels had to threaten legal action before Painter and Lawson provided him with a ticket out of the country.  The relationship soured quickly after this trip.  Soon after, the defendants stopped paying Daniels the 10% of the act fee budget stated in their contract, and cut his contact off with talent he had recruited.