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Thompson v. V.E.W. Ltd

June 15, 2007

MARY BUCK THOMPSON, PLAINTIFF,
v.
V.E.W. LTD, COTY, INC. AND LAIRD PARTNERS, LLC, DEFENDANTS.



The opinion of the court was delivered by: Honorable Paul A. Crotty, United States District Judge

OPINION AND ORDER

Plaintiff Mary Buck Thompson ("Thompson") brings this action against Defendants V.E.W. LTD ("VEW"), Coty Inc. ("Coty"), and Laird Partners ("Laird") for copyright infringement under the Copyright Act, 17 U.S.C. §§ 501 et seq., violations of the Lanham Act, 15 U.S.C. § 1125(a), deceptive business practices under N.Y. Gen. Bus. Law § 349, false advertising under N.Y. Gen. Bus. Law § 350 and common law unfair competition and unjust enrichment. Thompson alleges that Defendants used the crowns she created in photographs which are part of a national advertising campaign for Vera Wang Princess perfume (the "Campaign") without compensation or consent, and misidentified her crowns as Vera Wang Fine Jewelry. Defendants move, pursuant to Fed. R. Civ. P. 12(b)(6), to dismiss Thompson's claims for statutory damages and attorney's fees under the Copyright Act, for trade dress infringement, and for unjust enrichment. The Court now denies the motion as to statutory damages and attorney's fees under the Copyright Act, grants the motion to dismiss as to trade dress infringement and unjust enrichment, and grants Thompson leave to replead the dismissed claims.

RELEVANT FACTS*fn1

I. Thompson's Crowns

Since 1998, Thompson has created crowns by "weaving and molding gold and silver wire into forms that she adorns with jewels.." Complaint ¶ 16. Thompson believes that no other designer creates crowns with a similar appearance, and she asserts that the trade dress of her crowns has "become distinctive of [her] goods and works in commerce." Id. ¶ 18.

II. Defendants' Acquisition of Thompson's Crowns

VEW is a corporation authorized by fashion designer Vera Wang Becker to license her name in connection with various products. Coty, a major producer of perfumes, holds the license to produce Vera Wang Princess granted by VEW. Laird was retained by Coty to manage the Campaign, and in turn retained Lori Goldstein Ltd. ("LGL") as fashion stylist for the photography session which produced the photographs used in the Campaign (the "Photo Shoot").

In January 2006, LGL contacted Thompson and asked to rent her crowns "for a photography session in connection with a potential advertising campaign." Id. ¶ 23. Thompson informed LGL that she would provide the crowns on a "rental fee basis." Id. ¶ 24. Thompson subsequently shipped 32 crowns to LGL in February 2006, and, after the Photo Shoot was rescheduled and the crowns returned to her, shipped 34 crowns to LGL in late March 2006. Defendant VEW reimbursed Thompson for the cost of insuring the crowns during the second shipment, but Thompson received no other compensation from LGL or the Defendants.

III. Defendants' Use of Thompson's Crowns

Thompson believes that the Princess ad campaign, using pictures including her crowns, began on August 10, 2006. Thompson discovered a picture of model Camilla Belle wearing one of her crowns in a fashion magazine in September 2006, and later found that the campaign's website, www.verawangprincess.com, contained pictures including three more crowns, and a video featuring "more of her crown jewelry." Id. ¶ 35. One or more of the campaign's advertisements using Thompson's crowns bore a credit line that read "Featuring.Vera Wang Fine Jewelry." Id. ¶ 37.

On October 3, 2006, Thompson applied to register "all the jewelry used in" the Princess ad campaign with the United States Copyright Office. Id. ¶ 41. Her application covered five crowns as individual works, and 42 crowns as a collection of works including the five also registered individually. On October 9, counsel for Thompson wrote a letter to Defendants Coty and VEW, informing them that the crowns were copyrighted and their use in the Princess ad campaign was unauthorized. Notwithstanding this notification, Defendants "continued utilizing [Thompson's] works.." Id. ¶ 43.

DISCUSSION

I. Rule 12(b)(6) Standard

The district court may dismiss a claim under Federal Rule of Civil Procedure 12(b)(6) only if the plaintiff's factual allegations are not sufficient "to state a claim to relief that is plausible on its face." Bell Atlantic Corp. v. Twombly, 127 S.Ct. 1955, 1609 (2007). The court accepts as true all factual allegations in the complaint, and views them in the light most favorable to the plaintiff. See De Jesus v. Sears, Roebuck & Co., 87 F.3d 65, 70 (2d Cir. 1996). While detailed factual allegations are not required, however, a plaintiff must provide the grounds of her entitlement to relief beyond mere labels and conclusions; a formulaic recitation of the elements of a cause of action is insufficient. See Bell Atlantic Corp., 127 S.Ct. at 1964-65. In ruling on a motion under Rule 12(b)(6), the Court may consider only the allegations made in the complaint and any facts of which judicial notice may be taken. See Brass v. Amer. Film Techn., Inc., 987 F.2d 142, 150 (2d Cir. 1993). The ...


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