Case 2:22-cv-04425-MEMF-MAR Document 25 Filed 06/07/23 Page 1 of 16 Page ID #:129
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`O
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`UNITED STATES DISTRICT COURT
`CENTRAL DISTRICT OF CALIFORNIA
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`KLAUBER BROTHERS, INC. a New York
`corporation,
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`Plaintiff,
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`v.
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`ROMA COSTUMES, INC., a California
`corporation; and DOES 1-10, inclusive,
`Defendants.
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` Case No.: 2:22-cv-04425-MEMF (MARx)
`
`ORDER GRANTING IN PART
`DEFENDANT ROMA COSTUMES, INC.’S
`MOTION TO DISMISS THE COMPLAINT,
`OR, ALTERNATIVELY, FOR A MORE
`DEFINITE STATEMENT
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`Before the Court is Defendant Roma Costumes, Inc.’s Motion to Dismiss the Complaint, or,
`Alternatively, for a More Definite Statement. ECF No. 16. For the reasons stated herein, the Court
`hereby GRANTS Defendant Roma Costumes, Inc’s Motion to Dismiss and DENIES the Motion for
`a More Definite Statement.
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`Case 2:22-cv-04425-MEMF-MAR Document 25 Filed 06/07/23 Page 2 of 16 Page ID #:130
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`BACKGROUND
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`I.
`
`Factual Background1
`Plaintiff Klauber Brothers, Inc. (“Klauber”), a New York corporation (Compl. ¶ 1), brings
`the instant suit against Defendant Roma Costumes, Inc. (“Roma”). Klauber “composed an original
`two-dimensional artwork for the purposes of lace production.” (the “Subject Design”). Id. ¶ 9.
`Klauber registered the Subject Design with the United States Copyright Office under Registration
`Number VA 1-339-222. Id. ¶ 10.
`Klauber “sampled and sold lace bearing the Subject Design to numerous parties in the
`fashion and apparel industries.” Id. ¶ 11. “Following this distribution,” Klauber found “certain
`entities within the fashion and apparel industries had misappropriated the Subject Design and were
`selling fabric and garments bearing illegal reproductions and/or derivations of the Subject Design.”
`Id. ¶ 12. Specifically, “Roma and certain Doe Defendants[ ] created, sold, offered for sale,
`manufactured, caused to be manufactured, imported and/or distributed” products that infringed the
`Subject Design (the “Infringing Product”)2, including but not limited to “garments sold by Roma
`under Style ‘Deadly Romance Lace Lingerie Set’”.” Id. ¶ 13.
`Plaintiff’s Complaint provides an “exemplar” of the “Infringing Product”:3
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`1 The following facts, which the Court assumes are true and construes any inferences arising from those facts
`in the light most favorable to Klauber, are derived from the Complaint. ECF No. 1 (“Complaint” or
`“Compl.”); Caltex Plastics, Inc. v. Lockheed Martin Corp., 824 F.3d 1156, 1159 (9th Cir. 2016) (“We must
`accept all well-pleaded material facts as true and draw all reasonable inferences in favor of the plaintiff”).
`2 The Court adopts Klauber’s definition of “Infringing Product,” which although in the singular, is defined as
`covering multiple products.
`3 The Complaint does not specify whether the exemplar of the Infringing Product is the “Deadly Romance
`Lace Lingerie Set” or another, unnamed product.
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`Subject Design
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`Exemplar of Infringing Product
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`Id. at 4.
`Klauber alleges the side-by-side comparison “make[s] apparent that the elements,
`composition, arrangement, layout, and appearance of the designs on the garments are substantially
`similar to the design at issue.” Id. ¶ 15.
`The Complaint alleges two causes of action against Roma and ten Doe Defendants: (1)
`Copyright Infringement and (2) Vicarious and/or Contributory Copyright Infringement. Id. at 1.
`II.
`Procedural History
`Klauber filed its Complaint on June 28, 2022. ECF No. 1. On October 10, 2022, the parties
`filed a Joint Stipulation Extending Time to Answer the Complaint, extending Roma’s responsive
`deadline to November 11, 2022. ECF No. 12.
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`On November 4, 2022, Roma filed the instant Motion to Dismiss the Complaint, or,
`Alternatively, for a More Definite Statement. ECF No. 16 (“Motion” or “Mot.”). The hearing for the
`Motion was set on January 1, 2023. On its own motion, the Court continued the hearing three times,
`resulting in an ultimate hearing date of June 8, 2023. See ECF Nos. 18, 19, 23. The Motion was fully
`briefed. See ECF Nos. 20 (“Opposition” or “Opp’n”), 21 (“Reply”). The Court heard oral argument
`on June 8, 2023.
`I.
`Legal Standard
`A. Motion to Dismiss
`Under Federal Rule of Civil Procedure 12(b)(6)4, a party may file a motion to dismiss for
`“failure to state a claim upon which relief can be granted.” Fed. R. Civ. P. 12(b)(6).
`“To survive a motion to dismiss, a complaint must contain sufficient factual matter . . . to
`‘state a claim for relief that is plausible on its face.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009)
`(quoting Twombly, 550 U.S. at 570).5 “The plausibility standard is not akin to a ‘probability
`requirement,’ but it asks for more than a sheer possibility that a defendant has acted unlawfully.” Id.
`While a complaint need not contain “detailed factual allegations,” a plaintiff’s obligations to provide
`the grounds of his entitlement to relief requires more than “[t]hreadbare recitals of the elements of a
`cause of action[.]” Id. at 678 (internal citations and quotations omitted). “Determining whether a
`complaint states a plausible claim for relief . . . [is] a context-specific task that requires the reviewing
`court to draw on its judicial experience and common sense.” Id. at 679.
`When evaluating a complaint under Rule 12(b)(6), a court “must accept all well-pleaded
`material facts as true and draw all reasonable inferences in favor of the plaintiff.” Caltex Plastics,
`Inc. v. Lockheed Martin Corp., 824 F.3d 1156, 1159 (9th Cir. 2016). However, a court is “not bound
`to accept as true a legal conclusion couched as a factual allegation.” Papasan v. Allain, 478 U.S.
`265, 286 (1986).
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`4 Hereinafter, “Rule” shall refer to the Federal Rules of Civil Procedure unless otherwise stated.
`5 Surprisingly, Klauber argues that the Court should apply the “no set of facts” standard under Conley v.
`Gibson, 355 U.S. 41 (1957). Opp’n at 1-2. The Supreme Court abrogated Conley’s “no set of facts language”
`over a decade ago in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007).
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`B. Motion for a More Definite Statement
`Under Rule 12(e), a “party may move for a more definite statement of a pleading to which a
`responsive pleading is allowed but which is so vague or ambiguous that the party cannot reasonably
`prepare a response.” Fed. R. Civ. P. 12(e). A Rule 12(e) motion “is proper only where the complaint
`is so vague or ambiguous that the opposing party cannot respond, even with a simple denial, in good
`faith or without prejudice to himself.” Comm. for Immigrant Rights of Sonoma Cty. v. County of
`Sonoma, 644 F. Supp. 2d 1177, 1191 (N.D. Cal. 2009). “If the detail sought by the motion for more
`definite statement is obtainable through discovery, the motion should be denied.” Beery v. Hitachi
`Home Elecs. (Am.), Inc., 157 F.R.D. 477, 480 (C.D. Cal. 1993).
`II.
`Discussion
`A.
`Copyright Infringement Claim
`To state a copyright infringement claim, a plaintiff must allege “(1) ownership of a valid
`copyright, and (2) copying of constituent elements of the work that are original.” Feist Publ’ns, Inc.
`v. Rural Tel. Serv. Co., Inc., 499 U.S. 340, 361 (1991). In the absence of direct copying, a plaintiff
`must “plead facts plausibly showing either (1) that the two works in question are strikingly similar,
`or (2) that [the works] are substantially similar and that [Defendants] had access to the [Subject
`Work].” Malibu Textiles, Inc. v. Label Lane Int’l, Inc., 922 F. 3d 946, 952 (9th Cir. 2019) (internal
`quotations and citation omitted; bracketed text in original).
`The parties do not contest ownership of a valid copyright,6 and instead dispute whether
`Klauber has adequately alleged copying by either striking similarity or access and substantial
`similarity.
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`6 To plead ownership, a plaintiff must plausibly allege it owns a valid copyright registration for its work.
`Malibu Textiles, Inc. v. Label Lane Int’l, Inc., 922 F.3d 946, 951 (9th Cir. 2019). Here, Klauber alleges that it
`owns an “original two-dimensional artwork,” which is registered with the United States Copyright Office
`under Registration No. VA 1-339-222. Compl. ¶¶ 9, 10. This suffices at the pleading stage. See Label Lane,
`922 F.3d at 951-52.
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`1. Klauber’s Election to Present Side-By-Side Photographs Rather Than a
`Verbal Description of the Substantial Similarity is Not Grounds to
`Dismiss Its Complaint
`Before reaching the question of substantial similarity, the Court addresses Roma’s arguments
`that Klauber’s allegations do not meet Twombly’s plausibility standard. Specifically, Roma argues
`that Klauber fails to adequately plead substantial similarity because the Complaint does not identify
`the concrete elements in the Infringing Product are similar or identical to corresponding elements in
`the Subject Design. Mot. at 9-11.
`In the Complaint, Klauber provides a side-by-side photo of the Subject Design and an
`exemplar of the Infringing Product and alleges the “above comparisons make apparent that the
`elements, composition, arrangement, layout, and appearance of the designs on the garments are
`substantially similar to the design at issue.” Compl. at 4, ¶ 15. This, Roma contends without citing
`any on-point case law, is insufficient. Mot. at 10. In its opposition, Klauber points to Malibu
`Textiles, Inc. v. H&M Hennes & Mauritz, L.P., 668 F. App’x 800, 801 (9th Cir. 2016) and
`McGucken v. Chive Media Group., LLC, 2:18-cv-01612-RSWL-KS, 2018 WL 3410095 (C.D. Cal.
`July 11, 2018), asserting that both cases state that a plaintiff may plead similarity with references to
`photos of the works at issue. Opp’n at 8-9. Neither case is on point. In Malibu Textiles, a case that is
`not precedential, the Ninth Circuit held that Malibu Textiles could have cured the deficiencies in its
`allegations concerning striking or substantial similarity by describing the pattern’s protectable
`elements, identifying those same elements in H&M’s garment “perhaps with reference to photos
`showing a side-by-side comparison of the works.” 668 F. App’x at 801. Nowhere does the court state
`that photos alone are sufficient to plead substantial or striking similarity. In McGucken, the
`defendant did not contest substantial similarity but argued that the plaintiff’s allegations, which were
`based on information and belief, were insufficient. 2018 WL 3410095, at *3. The court disagreed
`and found that the plaintiff’s allegation that the defendant copied the plaintiff’s work was supported
`by a side-by-side comparison of the works. Id.
`Here, the works at issue involve delicate and difficult-to-describe lacework. Klauber alleges
`that Roma’s Infringing products “bear[ ] artwork identical to or substantially similar to the Subject
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`Design,” and Roma’s products feature “segments of lace incorporating at least a portion” of the
`Subject Design. Compl. ¶¶ 13, 14. Klauber supports these assertions with a photo of an allegedly
`infringing product. Compl. at 4. The allegations including the photograph meet the pleading
`requirement, and the Court declines to adopt Roma’s argument that Klauber must describe, in words,
`the similar or same elements between the Subject Design and exemplar of the Infringing Product.
`Accordingly, the Court DECLINES to grant the Motion to Dismiss on this ground.
`2. Roma Has Failed to Establish a Lack of Substantial Similarity
`In assessing the similarity between works, the Ninth Circuit has adopted a two-part analysis
`consisting of the extrinsic and intrinsic tests. Label Lane, 922 F.3d at 952. At the pleading stage, a
`court applies the extrinsic test, which “is an objective comparison of specific expressive elements”
`that “focuses on the articulable similarities between the two works.” Id. (internal quotation marks
`and citation omitted). The extrinsic test consists of two steps. First, the court filters out unprotectable
`elements of the plaintiff’s work and determines whether the remaining protectable elements are
`entitled to “broad” or “thin” copyright protection. Id. Second, the court compares the protectable
`elements of the plaintiff’s work to the corresponding elements of the defendant’s work and assesses
`the similarities in the objective details of the works. Id. at 953. There is no “hard-and-fast rule . . . to
`guide [the court’s] determinations that will necessarily turn on the unique facts of each case.
`Rentmeester v. Nike, Inc., 883 F.3d 1111, 1121 (9th Cir. 2018), overruled on other grounds by
`Skidmore as Tr. for Randy Craig Wolfe Tr. v. Led Zeppelin, 952 F.3d 1051 (9th Cir. 2020).
`Roma argues that the side-by-side comparison of the Subject Design and the exemplar of the
`Infringing Product demonstrates that substantial similarity does not exist. Mot. at 11-12.
`The Subject Design consists of two sides of semi-circles with a closed flower bud arranged in
`the center to form a heart-like shape and delicate lace background. There are a series of five petals
`atop each semi-circle. The petals have a transparent center consisting of delicate lacework with
`opaque bordering and light fringe at the very top. The sides are separated by a ladder design that
`runs down the middle.
`Under the first step of the extrinsic test, the Court filters out the Subject Design’s
`unprotectable elements. The idea of a floral pattern depicting petals and closed buds is not
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`protectable. L.A. Printex Indus., Inc. v. Aeropostale, Inc., 676 F. 3d 841, 850 (9th Cir. 2012).
`“However, [Klauber’s] original selection, coordination, and arrangement of such elements is
`protectable.” Id. “Because there is a wide range of expression for selecting, coordinating, and
`arranging floral elements in stylized fabric designs, copyright protection is broad, and a work will
`infringe if it’s substantially similar to the copyrighted work.” Id. (citation omitted).
`Next, the Court compares the protectable elements of Klauber’s Subject Design to the
`corresponding elements of the exemplar of the allegedly Infringing Product and assesses the
`similarities in the objective details of the works. The Court’s comparison of the exemplar of the
`Infringing Product and Subject Design reveals objective similarities in protectable elements. Both
`products feature a series of semi-circles with intricate lace backgrounds and a closed flower bud
`resembling a heart in the center. There are also thin lines connecting the closed bud to five petals
`bordering each semi-circle. The petals feature a transparent center with a heavy, opaque lace border
`and a fringe border. Essentially, the exemplar of the Infringing Product includes similar elements
`that are arranged in a near-identical fashion to one side of the Subject Design.
`Roma argues that the side-by-side comparison fails to demonstrate substantial similarity
`because of the many differences between the Subject Design and the exemplar of the Infringing
`Product. For example, Defendant argues that “the Subject Design contains two sides of semi-circle
`patterns separated by a ladder-like segment down the middle of the design, while the [exemplar of
`the Infringing Product] contains only one side of semi-circle patterns and does not have any such
`ladder-like design in the middle.” Mot. at 12. However, “no plagiarist can excuse the wrong by
`showing how much of his work he did not pirate.” Sheldon v. Metro-Goldwyn Pictures Corp., 81
`F.2d 49, 56 (2d. Cir. 1936). That Roma only took half of the design does not necessitate a finding
`that the works are not substantially similar. Defendant also argues that in the exemplar of the
`Infringing Product, the semi-circle mounds are shorter in height; the flower petals are smaller,
`compact, and less rounded; and the fringes are closer together. Mot. at 12. However, these minor
`differences do not negate a finding of substantial similarity. See Label Lane, 922 F.3d at 953-54 (To
`be sure, the pictures do show some minor differences between the Subject Work and Defendants’
`works . . . But a rational jury could find that these differences . . . are inconsequential . . . [or]
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`knowing modifications, which could be evidence of willful copying.” (internal quotations and
`citations omitted).
`Accordingly, the Court DECLINES to grant the Motion to Dismiss on this ground.
`The Court notes that the photograph of the exemplar of the Infringing Product is not as clear
`or sharp as the photograph of the Subject Design. As discussed below, the Court will order Klauber
`to amend the Complaint to provide a clearer photograph. Accordingly, the Court’s denial of the
`Motion to Dismiss on this ground will be without prejudice to Roma raising the issue again should
`Klauber produce a clearer photograph which alters the side-by-side analysis.
`3. Klauber Has Failed to Properly Plead Representative Infringement
`Roma also argues Klauber’s failure to allege any detail concerning the “exemplar” of the
`purported infringing products is fatal to Klauber’s claims because, without these details, Klauber has
`failed to plead that there is substantial similarity between the Subject Design and Roma’s allegedly
`infringing products. Mot. at 11-12. Klauber argues that its allegations provide Roma fair notice of
`the basis of Klauber’s copyright infringement claim and Klauber need not “specify each and every
`instance of infringement. Opp’n at 2 (quoting Blizzard Ent., Inc. v. Lilith Games (Shanghai) Co.
`Ltd., 149 F. Supp. 3d 1167, 1175 (N.D. Cal. 2015).
`Due to the “ever-shifting nature of the Internet,” courts have recognized that, for violations
`unfolding in cyberspace, the “complaint might have to catalog dozens, or thousands, of instantiations
`to capture the full range of alleged infringements. To avoid unwieldiness, courts have approved a
`complaint that simply alleges representative acts of infringement, rather than a comprehensive
`listing.” 3 Melville B. Nimmer & David Nimmer, Nimmer on Copyright § 12.09[A][2] (Matthew
`Bender, Rev. Ed. 2022); see also Perfect 10, Inc. v. Cybernet Ventures, Inc., 167 F. Supp. 3d 1114,
`1120 (C.D. Cal. 2001). District courts in the Ninth Circuit have extended this tenet to contexts
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`outside of cyberspace.7 In such situations, “[t]he question thus boils down to whether or not [the
`defendant] has fair notice of the allegations against it.” Cybernet Ventures, 167 F. Supp. 2d at 1121.8
`Here, Klauber failed to properly plead representative infringement because it only makes
`general, conclusory allegations that Roma “created, sold, offered for sale, manufactured, caused to
`be manufactured, imported and/or distributed fabrics and/or garments incorporating fabric that bears
`artwork identical to or substantially similar to the Subject Design.” Compl. ¶ 13. This broad
`allegation and the side-by-side comparison, in the absence of any allegation that the infringing
`products all incorporate the same or similar portion of the Subject Design as the exemplar, fail to
`apprise Roma or the Court of which of Roma’s products, except for the Deadly Romance Lace
`Lingerie Set, are at issue. As Klauber’s own cited case recognizes, assuming dozens of products are
`at issue, “a plausible claim would require that Plaintiff[ ] submit a representative sampling of
`infringed content, pleading infringement with the level of detail required by the Ninth Circuit[.]”
`Blizzard Ent., 149 F. Supp. 3d at 1175 (emphasis added). Klauber has failed to do so.
`Klauber points to Friedman v. Live Nation Merchandise, Inc. in support of its argument that
`it cannot identify all of Roma’s products that infringe the Subject Design because those facts are
`solely within Roma’s possession. Opp’n at 6 n.3. However, Friedman is inapposite as it concerns
`direct state of mind evidence—which, by definition, is solely in the possession of the defendant.
`Friedman v. Live Nation Merch., Inc., 833 F.3d 1180, 1189 (9th Cir. 2016). Which of Roma’s
`products infringe the Subject Design is not information that is solely within the possession of
`defendant. By definition, identifying the infringing products is the basis of the claims and must be
`pleaded with specificity.
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`7 See, e.g., Warner Bros. Ent. Inc. v. Random Tuesday, Inc., 2020 WL 12762735, at *12-*13 (C.D. Cal. Nov.
`9, 2020) (application of representative acts of infringement in a copyright infringement case concerning the
`Harry Potter films).
`8 Although Perfect 10 was decided before Twombly, the logic holds – a plaintiff must only plausibly plead a
`case for copyright infringement. Plausibility does not require that a plaintiff plead every act of infringement.
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`4. Access
`Proof of access requires an opportunity to view or to copy the plaintiff’s work.” Three Boys
`Music Corp. v. Bolton, 212 F. 3d 477, 482 (9th Cir. 2000) (internal quotations and citation omitted).
`“This is often described as providing a ‘reasonable opportunity’ or ‘reasonable possibility’ of
`viewing the plaintiff’s work,” that is, “more than a ‘bare possibility.’” Id. (citation omitted). “Access
`may not be inferred through mere speculation or conjecture.” Id. Circumstantial evidence of access
`includes “(1) a particular chain of events is established between the plaintiff’s work and the
`defendant’s access to that work (such as through dealings with a publisher or record company), [and]
`(2) the plaintiff’s work has been widely disseminated.” Id.
`Roma argues, and the Court agrees, that Klauber has failed to adequately allege that Roma
`had access to the Subject Design. Mot. at 6-9. Specifically, Klauber alleges that Roma had access to
`the Subject Design in the following ways:
`(a) access to Plaintiff’s showroom and/or design library; (b) access to illegally
`distributed copies of the Subject Design by third-party vendors and/or Defendants,
`including without limitation international and/or overseas converters and printing
`mills; (c) access to Plaintiff’s strike-offs and samples; and (d) garments manufactured
`and sold to the public bearing fabric lawfully printed with the Subject Design by
`Plaintiff for its customers.
`Compl. ¶ 17.
`At this stage, Klauber is not required to provide detailed factual allegations. . Iqbal, 556 U.S. at 678.
`These allegations, therefore are sufficient.
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`With respect to its allegation of widespread dissemination, Klauber alleges that “[p]rior to the
`acts complained of herein, Plaintiff sampled and sold lace bearing the Subject Design to numerous
`parties in the fashion and apparel industries.” Compl. ¶ 11. Roma asserts that notably absent are
`details concerning when, to whom, and in what quantities Klauber sampled and sold lace bearing the
`Subject Design, but at the motion to dismiss stage, those details are not required.
`Thus, Klauber’s allegations are sufficient to support a reasonable possibility that Roma had
`access to the Subject Design due to “widespread” dissemination. Accordingly, the Court
`DECLINES to grant the Motion to Dismiss on this ground.
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`5. Striking Similarity
`Because Klauber has adequately alleged access and substantial similarity with respect to the
`exemplar of the Infringing Product, it need not plead striking similarity. But given the Court’s
`determination regarding representative infringement, out of an abundance of caution, the Court will
`address the parties’ arguments regarding striking similarity. In lieu of pleading access, a plaintiff
`may plead striking similarity. See Label Lane, 922 F.3d at 953. “Two works are strikingly similar
`when the similarities between them are so great that they are highly unlikely to have been the
`product of independent creation.” Id. (internal quotations and citation omitted). “Striking similarity
`is a high bar.” Briggs v. Blomkamp, 70 F. Supp. 3d 1155,1167 (N.D. Cal. 2014). “The similarities
`should be sufficiently unique or complex as to make it unlikely that both pieces were copied from a
`prior common source, . . . or that the defendant was able to compose the accused work as a matter of
`independent creation.” Stewart v. Wachowski, 574 F. Supp. 2d 1074, 1103 (C.D. Cal. 2005).
`At this stage, the Court finds that the Subject Design and exemplar of the Infringing Product
`are not strikingly similar. Although the works contain common elements, they are not virtually
`identical, and their similarities are not “sufficiently unique or complex as to make it unlikely that
`both pieces were copied from a prior common source[.]” Id.
`B.
`Secondary Liability Claims
`Klauber also alleges two theories of secondary liability: contributory infringement and
`vicarious infringement.9
`“Secondary liability for copyright infringement does not exist in the absence of direct
`infringement by a third party.” A&M Records, Inc. v. Napster, Inc., 239 F. 3d 1004, 1013 n. 2 (9th
`Cir. 2001). Roma first argues that Klauber’s failure to name direct, third-party infringers is a ground
`for dismissal of both theories of secondary liability. Mot. at 14-15. Klauber does not address this
`argument. Opp’n at 14. Even setting aside Klauber’s failure to name direct, third-party infringers, the
`Complaint is deficient as to the secondary liability claims because Klauber fails to adequately plead
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`9 Plaintiff’s Complaint lumps contributory and vicarious copyright infringement into one cause of action.
`Compl. at 6. However, these are two distinct theories of secondary liability. Louis Vuitton Malletier, S.A. v.
`Akanoc Sols., Inc., 591 F. Supp. 2d 1098, 1103 n. 6 (N.D. Cal. 2008).
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`third-party direct infringement.10 To allege third-party direct liability, Klauber must adequately
`plead (1) ownership of the alleged material and (2) that the third-party “violate[d] at least one
`exclusive right granted to copyright holders under 17 U.S.C. § 106.” A&M Records, 239 F.3d at
`1013. Here, the Complaint fails to adequately plead the second prong, as Klauber does not
`adequately allege how any third-party violated any exclusive right Klauber had as a copyright
`holder. For example, Klauber points to the “Deadly Romance Lace Lingerie Set,” which it alleges
`was “made by or on behalf of Roma.” Compl. ¶ 13. Nowhere does Klauber allege that any third-
`party manufactured or designed the “Deadly Romance Lace Lingerie Set.” See generally id. Simply
`put, the ambiguity is the result of an absence of allegations plausibly suggesting that direct-third
`party infringement occurred, rendering the Complaint insufficient under Twombly. 11
`Although the Court grants Roma’s Motion as to secondary liability, the Court will evaluate
`the sufficiency of Klauber’s allegations for both contributory and vicarious infringement so that
`Klauber may remedy any identified deficiencies.
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`Klauber also fails to adequately plead the requirements elements for both contributory and
`vicarious infringement. To state a claim for contributory infringement, a plaintiff must allege facts
`showing that a defendant: “(1) has knowledge of another’s infringement and (2) either (a) materially
`contributes to or (b) induces that infringement.” VHT, Inc. v. Zillow Grp., Inc., 918 F.3d 723, 745
`(9th Cir. 2019) (internal quotations and citation omitted); Perfect 10, Inc. v. Visa Intern. Service
`Ass’n, 494 F.3d 788, 796 (9th Cir. 2007). Here, Klauber alleges that:
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`10 Klauber names Doe Defendants as the alleged third-party direct infringers. Although Doe pleading is
`generally improper, the Court recognizes that situations may arise “where the identity of the alleged
`defendants will not be known prior to the filing of a complaint. In such circumstances, the plaintiff should be
`given an opportunity through discovery to identify the unknown defendants[.]” Gillespie v. Civiletti, 629 F.
`3d 637, 642 (9th Cir. 1980); see also Ticketmaster L.L.C. v. Prestige Ent. W., Inc., 315 F. Supp. 3d
`1147,1157-58 (C.D. Cal. 2018). However, Klauber does not provide sufficient factual detail for the court to
`ascertain if its situation is like that in Ticketmaster. The Court need not decide whether Klauber’s use of Doe
`pleading adequately identifies third-party direct infringers because it finds that Klauber does not adequately
`plead third-party direct infringement.
`11 Plaintiff again repeats its argument that the facts concerning this issue are in Roma’s exclusive control,
`citing Friedman. The Court is not persuaded by this argument considering Plaintiff’s drafting of the
`Complaint, which does not delineate Roma’s role in the alleged network of infringement but lumps all
`Defendants together.
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`Plaintiff is informed and believes and thereon alleges that Defendants had direct
`oversight or involvement in the sourcing of materials for and manufacture of the
`Infringing Product and thus knew, induced, caused, or materially contributed to the
`infringement of Plaintiff’s rights as alleged herein.
`Compl. ¶ 25.
`Klauber’s allegations fall short of plausibly alleging that Roma or any of the unnamed
`Defendants knew of each other’s infringement and either materially contributed to or induced that
`infringement. For example, a Defendant that simply sold lace to another Defendant does not
`necessarily know that the purchaser will use that lace to make artwork infringing the Subject Design.
`Similarly, Klauber also fails to adequately plead vicarious infringement. To state a claim for
`vicarious infringement, a plaintiff must allege that the defendant “has (1) the right and ability to
`supervise the infringing conduct and (2) a direct financial interest in the infringing activity.” VHT,
`918 F.3d at 746 (9th Cir. 2019). As with its contributory infringement claim, the Complaint offers no
`more than terse legal conclusions. For example, concerning oversight, Klauber alleges that:
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`Plaintiff is informed and believes and thereon alleges that Defendants had direct
`oversight or involvement in the sourcing of materials for and manufacture of the
`Infringing Product and thus knew, induced, caused, or materially contributed to the
`infringement of Plaintiff’s rights as alleged herein . . . Plaintiff is i