IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`Case No. 17-CV-15
`
`DAZZLE UP, LLC,
`
`Plaintiff,
`
`v.
`
`SUGARTOWN WORLDWIDE LLC,
`
`Defendant.
`
`COMPLAINT
`
`Plaintiff Dazzle Up, LLC (“Dazzle Up”), through counsel, for its Complaint
`
`against Sugartown Worldwide LLC (“Sugartown”) hereby alleges and says the following:
`
`NATURE OF THE ACTION
`
`1.
`
`This action arises under the Declaratory Judgment Act, 28 U.S.C. § 2201,
`
`et, seq. and the copyright laws of the United States, Title 17, United States Code, among
`
`other laws.
`
`2.
`
`Sugartown has threatened copyright claims against Dazzle Up. Dazzle Up
`
`files this action seeking a declaration(s) of non-infringement of Sugartown’s asserted
`
`copyrights.
`
`THE PARTIES
`
`3.
`
`Dazzle Up is a limited liability company organized under the laws of the
`
`State of North Carolina with its principal place of business in Guilford County, North
`
`Carolina. Dazzle Up is also known as Simply Southern.
`
`Case 1:17-cv-00015-TDS-JEP Document 1 Filed 01/06/17 Page 1 of 13
`
`
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`Case No. 17-CV-15
`
`DAZZLE UP, LLC,
`
`Plaintiff,
`
`v.
`
`SUGARTOWN WORLDWIDE LLC,
`
`Defendant.
`
`COMPLAINT
`
`Plaintiff Dazzle Up, LLC (“Dazzle Up”), through counsel, for its Complaint
`
`against Sugartown Worldwide LLC (“Sugartown”) hereby alleges and says the following:
`
`NATURE OF THE ACTION
`
`1.
`
`This action arises under the Declaratory Judgment Act, 28 U.S.C. § 2201,
`
`et, seq. and the copyright laws of the United States, Title 17, United States Code, among
`
`other laws.
`
`2.
`
`Sugartown has threatened copyright claims against Dazzle Up. Dazzle Up
`
`files this action seeking a declaration(s) of non-infringement of Sugartown’s asserted
`
`copyrights.
`
`THE PARTIES
`
`3.
`
`Dazzle Up is a limited liability company organized under the laws of the
`
`State of North Carolina with its principal place of business in Guilford County, North
`
`Carolina. Dazzle Up is also known as Simply Southern.
`
`Case 1:17-cv-00015-TDS-JEP Document 1 Filed 01/06/17 Page 1 of 13
`
`
`
`4.
`
`Upon information and belief, Sugartown is a Delaware limited liability
`
`company with an office and principal place of business located at 800 3rd Avenue, King
`
`of Prussia, Pennsylvania 19406.
`
`JURISDICTION AND VENUE
`
`5.
`
`This Court has subject matter jurisdiction over this matter as it arises under
`
`the Federal Declaratory Judgment Act and the copyright laws of the United States. Thus,
`
`jurisdiction is proper under, at a minimum, 28 U.S.C. §§ 1331 & 1338, 17 U.S.C. § 101
`
`et seq. and 28 U.S.C. § 2201 et seq.
`
`6.
`
`Personal jurisdiction in this Court over Sugartown is proper under N.C.
`
`Gen. Stat. § 1-75.4, among other laws and constitutional principles, due to the following
`
`among other actions:
`
`(a) Sugartown holds itself out as the owner of the Lilly Pulitzer
`
`brand and owner of certain designs, (b) Sugartown holds itself out as, and actually
`
`conducts, marketing and distribution of Lilly Pulitzer apparel and accessories in retail
`
`stores throughout the United States, including within this District, (c) upon information
`
`and belief, Sugartown distributes its products to and through stores in this District which
`
`its website calls “A Lilly Pulitzer Specialty Store” and “A Lilly Pulitzer Department
`
`Store,” (d) upon information and belief, Sugartown operates a highly interactive website
`
`through which products may be purchased by consumers in North Carolina; (e)
`
`Sugartown has introduced into the stream of commerce for sale or distribution in and to
`
`North Carolina products and advertising; and (f) Sugartown has sent letters to Dazzle Up
`
`in North Carolina alleging infringement and threatening legal action.
`
`2
`
`Case 1:17-cv-00015-TDS-JEP Document 1 Filed 01/06/17 Page 2 of 13
`
`
`
`7.
`
`Venue is proper
`
`in this District as, among other potential
`
`reasons,
`
`Sugartown is subject to personal jurisdiction in this District and statutorily deemed a
`
`resident of the jurisdiction, and a substantial part of the events giving rise to the claims
`
`occurred in this District.
`
`FACTS
`
`8.
`
`Since its start by its owner in 2003, the Dazzle Up business has grown from
`
`a cart-based t-shirt seller in a shopping mall
`
`to its current status as a leading
`
`manufacturer, wholesaler and retailer of shirts, t-shirts, clothing and other innovative gift
`
`products.
`
`9.
`
`Dazzle Up currently operates ten (10) physical store locations in North
`
`Carolina and South Carolina.
`
`10.
`
`11.
`
`Dazzle Up employs over 70 persons in North and South Carolina.
`
`In addition to its online and retail sales, Dazzle Up wholesales or distributes
`
`its products to approximately 3,225 stores. Dazzle Up’s products are sold in at least 32
`
`states, including in North and South Carolina and as far west as California, as north as
`
`Michigan and as south as Florida.
`
`12.
`
`13.
`
`One of Dazzle Up’s brands is SIMPLY SOUTHERN®.
`
`The most recent publication of the national Gift Beat trade publication, as
`
`well as prior issues in 2015 and 2016, reported that Dazzle Up’s SIMPLY SOUTHERN®
`
`mark is the #2 brand for apparel in America.
`
`3
`
`Case 1:17-cv-00015-TDS-JEP Document 1 Filed 01/06/17 Page 3 of 13
`
`
`
`14.
`
`Dazzle Up creates original artwork in the form of designs that are applied to
`
`its t-shirts and other products, such as dresses, bags, and beverage can insulating sleeves.
`
`15.
`
`16.
`
`Dazzle Up owns the copyrights to its designs.
`
`According to a provision of
`
`the Copyright Act, 17 U.S.C. § 408,
`
`registration of a copyright in a work created after January 1, 1978 is not a condition of
`
`copyright protection.
`
`17.
`
`Dazzle Up has registered some, but not all, of its copyrights. Copies of
`
`copyright registration certificates and images of the following designs are attached hereto
`
`as Exhibit 1:
`
`Image
`
`Registration No.
`VA 2-007-978
`
`Title
`PRPDaisy
`
`4
`
`Case 1:17-cv-00015-TDS-JEP Document 1 Filed 01/06/17 Page 4 of 13
`
`
`
`VA 2-007-926
`
`PRPElephant-Amethyst
`
`VA 2-008-343
`
`RoseLogo
`
`VA 2-008-057
`
`MS
`
`5
`
`Case 1:17-cv-00015-TDS-JEP Document 1 Filed 01/06/17 Page 5 of 13
`
`
`
`VA 2-008-060
`
`PRPArrow
`
`VA 2-008-062
`
`PRPGiraffe
`
`2-008-223
`
`PRPCrab-Sunrise
`
`18.
`
`On November 18, 2016, Sugartown sent a letter to Dazzle Up asserting that
`
`seven designs on Dazzle Up products infringed eight copyrights allegedly held by
`
`Sugartown. Sugartown demanded both a “cease and desist” and an accounting of Dazzle
`
`6
`
`Case 1:17-cv-00015-TDS-JEP Document 1 Filed 01/06/17 Page 6 of 13
`
`
`
`Up’s “gross revenues and profits” from products bearing the designs. Sugartown sent a
`
`subsequent letter dated December 21, 2016 rejecting Dazzle Up’s response. Sugartown
`
`indicated in both letters that if Dazzle Up did not comply with its demands, it would
`
`“have no choice but to consider its further legal options” and “begin considering other
`
`available mechanisms to pursue its rights,” clearly threatening legal action.
`
`19.
`
`A compilation of
`
`the Dazzle Up designs,
`
`along with product
`
`images/identifications, identified and provided by Sugartown in its letter is attached as
`
`Exhibit 2.
`
`20.
`
`A compilation of the designs, names and copyright numbers identified and
`
`provided by Sugartown as designs and copyrights it allegedly owns and asserts is
`
`attached as Exhibit 3.
`
`21.
`
`The Dazzle Up designs identified by Sugartown are not copies of any
`
`Sugartown designs or copyrights. The Dazzle Up designs identified by Sugartown are
`
`not infringements of any Sugartown copyrights.
`
`22.
`
`Sugartown has no exclusivity under copyright
`
`law to ideas, common
`
`themes, or common depictions of items, especially when the items come from nature.
`
`23.
`
`Sugartown’s assertion of its alleged copyrights against Dazzle Up attempts,
`
`wrongly, to block Dazzle Up from representing common, unprotectable themes, ideas and
`
`natural items as well as stock items and scenes a faire.
`
`24.
`
`The Dazzle Up designs identified by Sugartown are different from, and not
`
`substantially similar to, the Sugartown designs identified by Sugartown.
`
`7
`
`Case 1:17-cv-00015-TDS-JEP Document 1 Filed 01/06/17 Page 7 of 13
`
`
`
`25.
`
`Indeed, two of the Dazzle Up designs identified by Sugartown – items 2.A.i
`
`and 2.D.i
`
`in Exhibit 2 – are the subject of two of Dazzle Up’s own copyright
`
`registrations, granted by the U.S. Copyright Office to Dazzle Up, registration numbers
`
`VA 2-007-978 and VA 2-007-926.
`
`26.
`
`Other of Dazzle Up’s designs identified by Sugartown include design
`
`elements within or similar to other of Dazzle Up’s copyright registrations, including
`
`those identified in the chart above in paragraph 17.
`
`27.
`
`The Dazzle Up designs identified by Sugartown are different from the
`
`Sugartown designs identified by Sugartown in multiple respects, including both their
`
`overall, subjective impressions and the objective details of the designs. A few, but not
`
`all, of the design differences include:
`
`a. With respect to the designs in 2.E and 3.E, differences in the clam
`
`shells’ vertical ridge lines, horizontal band coloring, shape, choice of
`
`colors between shells, and gaps between shells;
`
`b. With respect to the designs in 2.G and 3.G and 3.H, differences in boat
`
`shapes, groupings, differences in quantities of and spacing of boats,
`
`differences in sail designs and colors, differences in the presence or lack
`
`of sea animals, and in the suggestions of water in the form of wavy lines
`
`verses largely flat lines;
`
`8
`
`Case 1:17-cv-00015-TDS-JEP Document 1 Filed 01/06/17 Page 8 of 13
`
`
`
`c. With respect to the designs in 2.A, 2.B and 2.D. and 3.A., 3.B. and 3.D,
`
`differences in shaping and coloring of
`
`flowers and other design
`
`elements;
`
`d. With respect to the designs in 2.A and 3.A, the lack or presence of
`
`segments of connected or nearly connected green portions;
`
`e. With respect to the designs in 2.F and 3.F, differences in the rigid verses
`
`fluid shapes and also the presence of lack of white or lighter images
`
`distinct from the pink images;
`
`f. With respect to all of the designs in question, differences in stroke
`
`lengths, stroke widths, stroke shapes, artistic style, placement of
`
`features, the use of lighter and darker colors;
`
`g. With respect to the designs in 2.B, 2.C, 2.D and 2.G and 3.B, 3.C, 3.D
`
`and 3.G, differences concerning the inclusion of other elements such as
`
`pearl strands, the Simply Southern logo, crabs and whales, and the non-
`
`inclusion of other elements such as insects and lobsters;
`
`h. With respect to the designs in 2.C and 3.C, differences between utilizing
`
`crabs and branched sea vegetation in contrast to depicting lobsters with
`
`unbranched blue and green squiggle marks; and
`
`i. With respect to all of the designs in question, the different overall
`
`designs and the look and feel of the respective designs.
`
`9
`
`Case 1:17-cv-00015-TDS-JEP Document 1 Filed 01/06/17 Page 9 of 13
`
`
`
`28.
`
`Some of Dazzle Up’s designs targeted by Sugartown, including without
`
`limitation the designs in 2.A.i, 2.B, and 2.D, also appear within the context of an overall
`
`design having other design features, such as, without limitation, an elephant, a Bible
`
`verse, and the Simply Southern name and/or logo.
`
`29.
`
`Not only are Dazzle Up’s designs different from Sugartown’s asserted
`
`works, but Dazzle Up’s use of the designs targeted by Sugartown within even more
`
`different overall designs additionally transforms and fairly uses the designs targeted by
`
`Sugartown.
`
`30.
`
`31.
`
`Sugartown’s assertions of its alleged copyrights are overbroad and unfair.
`
`As Sugartown cannot establish infringement by Dazzle Up, Sugartown is
`
`not entitled to an injunction, an accounting, or any monetary or other payment from
`
`Dazzle Up.
`
`CLAIM(S) FOR RELIEF
`(Declaration(s) of Non-infringement)
`
`32.
`
`Dazzle Up repeats and realleges the allegations set forth in Paragraphs 1
`
`through 31, as if fully set forth herein.
`
`33.
`
`A real and justiciable controversy exists between Sugartown and Dazzle Up
`
`regarding Sugartown’s allegations of copyright infringement.
`
`34.
`
`Sugartown has stated that Dazzle Up has infringed the copyrights identified
`
`in Exhibit 3 through its creation of the designs in Exhibit 2 and its activities concerning
`
`the products bearing designs in Exhibit 2.
`
`35.
`
`Dazzle Up’s designs are not copies of Sugartown’s claimed works.
`10
`
`Case 1:17-cv-00015-TDS-JEP Document 1 Filed 01/06/17 Page 10 of 13
`
`
`
`36.
`
`Dazzle Up’s designs, products and actions are not
`
`infringements of
`
`Sugartown’s claimed copyrights, including without limitation copyright numbers VAU
`
`001150899, VAu001033885, VAu001153371, VAu001111221, VAu001212013, VA u
`
`001153454, VAu001090664 and VAU001189807.
`
`37.
`
`Dazzle Up’s designs are not substantially similar to Sugartown’s claimed
`
`copyrighted designs. As identified above in paragraphs 19-30, Dazzle Up’s designs are
`
`different from Sugartown’s claimed works.
`
`38.
`
`Dazzle Up’s inclusion of its designs within overall designs not only
`
`evidence differences between its designs and Sugartown’s claimed works, but
`
`that
`
`inclusion also represents transformative use protected by the fair use and transformative
`
`use doctrines. Dazzle Up’s actions are not
`
`infringements under the fair use and
`
`transformative use doctrines.
`
`39.
`
`Dazzle Up has not committed and is not liable to Sugartown for the
`
`asserted claims, including claims of copyright infringement.
`
`40.
`
`Dazzle Up is therefore entitled to a declaration(s) that
`
`its creation,
`
`marketing, manufacture, sale, offering for sale, and distribution of the designs and
`
`products indicated on Exhibit 2, as well as other products bearing such designs, does not
`
`infringe any copyright of Sugartown, including those identified on Exhibit 3.
`
`41.
`
`Dazzle Up should be awarded its attorneys’ fees, interest and cost as
`
`permitted by law.
`
`11
`
`Case 1:17-cv-00015-TDS-JEP Document 1 Filed 01/06/17 Page 11 of 13
`
`
`
`PRAYER FOR RELIEF
`
`WHEREFORE, Plaintiff Dazzle Up, LLC, prays that the Court grant and order the
`
`following relief:
`
`1.
`
`Declare that Dazzle Up’s creation, marketing, manufacture, sale, offering
`
`for sale, and distribution of the designs and products indicated on Exhibit 2, as well as
`
`other products bearing such designs, does not
`
`infringe any asserted copyright of
`
`Sugartown, including those identified on Exhibit 3;
`
`2.
`
`Declare that Dazzle Up has not
`
`infringed any asserted copyright of
`
`Sugartown, including those identified on Exhibit 3;
`
`and
`
`3.
`
`4.
`
`Award Dazzle Up its attorneys’ fees, interest and cost as permitted by law;
`
`Enter such other and further relief as the Court deems just, proper and
`
`equitable under the circumstances.
`
`12
`
`Case 1:17-cv-00015-TDS-JEP Document 1 Filed 01/06/17 Page 12 of 13
`
`
`
`Respectfully submitted, this the 6th day of January, 2017.
`
`/s/ David W. Sar
`David W. Sar
`North Carolina State Bar No. 23533
`Email: dsar@brookspierce.com
`
`BROOKS, PIERCE, McLENDON,
`HUMPHREY & LEONARD, L.L.P.
`Post Office Box 26000
`Greensboro, North Carolina 27420
`Telephone: (336) 373-8850
`Fax: (336) 378-1001
`
`Attorney(s) for Plaintiff
`
`13
`
`Case 1:17-cv-00015-TDS-JEP Document 1 Filed 01/06/17 Page 13 of 13
`
`
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