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