throbber
IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`
`
`
`
`
`
`
`
`Civil Action No. 17-cv-15
`
`DAZZLE UP, LLC,
`
`
`
`v.
`
`SUGARTOWN WORLDWIDE LLC,
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`
`DEFENDANT SUGARTOWN WORLDWIDE LLC’S ANSWER,
`AFFIRMATIVE DEFENSES, AND COUNTERCLAIM
`
`Defendant Sugartown Worldwide LLC (“Sugartown”) hereby submits this
`
`
`
`Answer, Affirmative Defenses, and Counterclaim to the Complaint filed by
`
`Plaintiff Dazzle Up, LLC (“Dazzle Up”), as follows:
`
`1.
`
`Sugartown admits that Dazzle Up purports to bring a civil action
`
`related to copyright infringement arising under the Copyright Act and that Dazzle
`
`Up purports to seek a declaratory judgment. Sugartown denies that Dazzle Up is
`
`entitled to any relief arising out of its claims.
`
`2.
`
`Sugartown admits that it has contacted Dazzle Up concerning Dazzle
`
`Up’s infringement of copyrighted designs owned by Sugartown. Sugartown also
`
`admits that Dazzle Up purports to seek a declaration of non-infringement of
`
`Sugartown’s asserted copyrights.
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`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 1 of 28
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`

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`3.
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`Sugartown is without sufficient information to form a belief as to the
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`truth or falsity of the allegations in Paragraph 3 and, therefore, denies those
`
`allegations.
`
`4.
`
`5.
`
`Sugartown admits the allegations in Paragraph 4.
`
`Sugartown admits that this Court has original jurisdiction over (1) all
`
`civil actions arising under the laws of the United States and (2) any civil action
`
`arising under the Copyright Act. Sugartown denies the remaining allegations in
`
`Paragraph 5.
`
`6.
`
`Sugartown admits that this Court has personal jurisdiction over
`
`Sugartown for purposes of this action only. Sugartown also admits that (a) it is the
`
`owner of the Lilly Pulitzer brand and the designs sold under that brand, (b) it
`
`markets and distributes Lilly Pulitzer apparel and accessories in retail stores in
`
`multiple states, including states in this District, (c) it distributes its products
`
`through stores which it refers to as “A Lilly Pulitzer Specialty Store” or “A Lilly
`
`Pulitzer Department Store,” (d) operates a website that is available to consumers in
`
`North Carolina, (e) has distributed and sold products in North Carolina, and (f)
`
`Sugartown has sent letters to Dazzle Up’s attorney concerning Dazzle Up’s
`
`infringement of copyrighted designs owned by Sugartown. Sugartown denies the
`
`remaining allegations in Paragraph 6.
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 2 of 28
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`

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`7.
`
`Sugartown admits that venue is proper in this District, that it is subject
`
`to personal jurisdiction in this District for purposes of this action only, and that a
`
`substantial part of the events giving rise to the claims at issue occurred in this
`
`District. Sugartown denies the remaining allegations in Paragraph 7.
`
`8.
`
`Sugartown is without sufficient information to form a belief as to the
`
`truth or falsity of the allegations in Paragraph 8 and, therefore, denies those
`
`allegations.
`
`9.
`
`Sugartown is without sufficient information to form a belief as to the
`
`truth or falsity of the allegations in Paragraph 9 and, therefore, denies those
`
`allegations.
`
`10. Sugartown is without sufficient information to form a belief as to the
`
`truth or falsity of the allegations in Paragraph 10 and, therefore, denies those
`
`allegations.
`
`11. Sugartown is without sufficient information to form a belief as to the
`
`truth or falsity of the allegations in Paragraph 11 and, therefore, denies those
`
`allegations.
`
`12. Sugartown admits that a trademark registration for the trademark
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`SIMPLY SOUTHERN identifies Dazzle Up as the owner of the mark.
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 3 of 28
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`13. Sugartown is without sufficient information to form a belief as to the
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`truth or falsity of the allegations in Paragraph 13 and, therefore, denies those
`
`allegations.
`
`14. Sugartown is without sufficient information to form a belief as to the
`
`truth or falsity of the allegations in Paragraph 14 and, therefore, denies those
`
`allegations.
`
`15. Sugartown is without sufficient information to form a belief as to the
`
`truth or falsity of the allegations in Paragraph 15 and, therefore, denies those
`
`allegations.
`
`16. Sugartown admits the basic legal principle that registration of a
`
`copyright is not a condition of copyright protection.
`
`17. Sugartown admits that Dazzle Up has attached to its complaint
`
`copyright registration certificates, which list Dazzle Up as the owner. Sugartown is
`
`without sufficient information to form a belief as to the truth or falsity of the
`
`remaining allegations in Paragraph 17 and, therefore, denies those allegations.
`
`18. Sugartown admits that it sent a letter to Dazzle Up’s attorney on
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`November 18, 2016 regarding Dazzle Up’s infringement of Sugartown’s
`
`copyrights, requesting that Dazzle Up cease and desist use of the infringing marks
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`and provide an accounting of gross revenues and profits from products bearing the
`
`infringing designs, and stating that absent a response from Dazzle Up, Sugartown
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 4 of 28
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`

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`would have no choice but to consider its legal options. Sugartown also admits that
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`it sent Dazzle Up a letter on December 21, 2016, disagreeing with Dazzle Up’s
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`position in its response to Sugartown’s November 18 letter and noting that if
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`Dazzle Up did not provide the requested information by January 5, 2017,
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`Sugartown would begin considering other available mechanisms to pursue its
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`rights. Sugartown denies the remaining allegations in Paragraph 18.
`
`19. Sugartown admits that Exhibit 2 to the Complaint compiles images
`
`that Sugartown attached to its November 18, 2016 letter.
`
`20. Sugartown admits that Exhibit 3 to the Complaint compiles images
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`that Sugartown attached to its November 18, 2016 letter.
`
`21. Sugartown denies the allegations in Paragraph 21.
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`22. Sugartown admits the basic legal premise of copyright law that no
`
`party has exclusive rights in ideas, common themes, or common descriptions of
`
`items, although the expression of those ideas, common themes, or common
`
`descriptions may be protectable. Sugartown denies any remaining allegations in
`
`Paragraph 22 and denies that this basic legal premise is applicable to Sugartown’s
`
`claims in this dispute.
`
`23. Sugartown denies the allegations in Paragraph 23.
`
`24. Sugartown denies the allegations in Paragraph 24.
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 5 of 28
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`25. Sugartown is without sufficient information to form a belief as to the
`
`truth or falsity of the allegations in Paragraph 25 and, therefore, denies those
`
`allegations.
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`26. Sugartown is without sufficient information to form a belief as to the
`
`truth or falsity of the allegations in Paragraph 26 and, therefore, denies those
`
`allegations.
`
`27. Sugartown denies the allegations in Paragraph 27.
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`28. Sugartown admits that some of Dazzle Up’s designs include design
`
`elements in addition to Sugartown’s copyrighted designs, but denies that those
`
`elements are relevant to an analysis as to whether Dazzle Up’s designs infringe
`
`Sugartown’s copyrighted designs.
`
`29. Sugartown denies the allegations in Paragraph 29.
`
`30. Sugartown denies the allegations in Paragraph 30.
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`31. Sugartown denies the allegations in Paragraph 31.
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`32. Sugartown reasserts and incorporates by reference its responses in
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`Paragraphs 1-31, above, in response to Paragraph 32.
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`33. Sugartown admits the allegations in Paragraph 33 as they apply to the
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`Dazzle Up designs set forth in Sugartown’s Counterclaim, but denies the
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`remaining allegations in Paragraph 33.
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 6 of 28
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`

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`34. Sugartown admits that in its November 18, 2016 letter it provided
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`examples of numerous Dazzle Up designs that infringe Sugartown’s copyrighted
`
`designs.
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`35. Sugartown denies the allegations in Paragraph 35.
`
`36. Sugartown denies the allegations in Paragraph 36.
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`37. Sugartown denies the allegations in Paragraph 37.
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`38. Sugartown denies the allegations in Paragraph 38.
`
`39. Sugartown denies the allegations in Paragraph 39.
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`40. Sugartown denies the allegations in Paragraph 40.
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`41. Sugartown denies the allegations in Paragraph 41.
`
`Sugartown denies that Dazzle Up is entitled to any relief sought in its Complaint,
`
`including its Prayer for Relief.
`
`AFFIRMATIVE DEFENSES
`
`1.
`
`2.
`
`3.
`
`Dazzle Up’s claims are barred under the doctrine of unclean hands.
`
`The Complaint fails to state a claim upon which relief may be granted.
`
`Sugartown reserves the right to assert additional affirmative defenses,
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`should discovery reveal facts supporting such defenses.
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`PRAYER FOR RELIEF
`
`Sugartown therefore prays that the Court:
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 7 of 28
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`1.
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`Deny Dazzle Up’s request for a declaration that Dazzle Up’s 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, do
`
`not infringe Sugartown’s copyrighted designs;
`
`2.
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`Deny Dazzle Up’s request for a declaration that Dazzle Up has not
`
`infringed Sugartown’s copyrighted designs;
`
`3.
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`Award Sugartown its attorneys’ fees, interest, and costs as permitted
`
`by law; and
`
`4.
`
`Enter such other and further relief as the Court deems just, proper, and
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`equitable under the circumstances.
`
`COUNTERCLAIM
`
`Defendant/Counterclaim-Plaintiff Sugartown Worldwide LLC
`
`(“Sugartown”) states the following for its Complaint against
`
`Plaintiff/Counterclaim-Defendant Dazzle Up, LLC (“Dazzle Up”):
`
`SUBSTANCE OF THE ACTION
`
`1.
`
`This is an action at law and in equity for copyright infringement
`
`arising under the Copyright Act of 1976, 17 U.S.C. §§ 101 et seq.
`
`2.
`
`Dazzle Up has created and sold apparel and other merchandise
`
`incorporating designs that are substantially similar to Sugartown’s copyrighted
`
`designs, without Sugartown’s authorization. Dazzle Up’s actions infringe
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 8 of 28
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`Sugartown’s exclusive copyright rights and have damaged and will continue to
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`damage Sugartown, and have caused and will continue to cause irreparable harm to
`
`Sugartown, absent relief from this Court.
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`JURISDICTION AND VENUE
`
`3.
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`This Court has subject matter jurisdiction under 28 U.S.C. §§ 1331
`
`and 1338.
`
`4.
`
`This Court has personal jurisdiction over Dazzle Up because, on
`
`information and belief, Dazzle Up is a domestic corporation and is engaged in
`
`substantial activity in this District.
`
`5.
`
`Venue is proper in this District pursuant to 28 U.S.C. § 1400(a).
`
`THE PARTIES
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`Sugartown is a Delaware limited liability company with an office and
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`6.
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`principal place of business located at 800 3rd Avenue, King of Prussia,
`
`Pennsylvania 19406. Sugartown is the owner of the well-known LILLY
`
`PULITZER trademarks, and it markets and distributes Lilly Pulitzer apparel and
`
`accessories in retail stores throughout the United States, including within this
`
`District.
`
`7.
`
`On information and belief, Defendant Dazzle Up is a North Carolina
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`limited liability company with its principal place of business in North Carolina. On
`
`information and belief, Dazzle Up owns the Simply Southern brand.
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 9 of 28
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`A.
`
`FACTS
`
`Plaintiff Sugartown and Its Designs
`
`In the 1950’s, Lilly Pulitzer began designing, manufacturing, and
`
`8.
`
`selling distinctive fashion apparel featuring bright, colorful prints. Her apparel and
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`fabric designs quickly grew in popularity, in large part because they were unique
`
`and distinctive. Ms. Pulitzer founded Lilly Pulitzer, Inc. in 1959, and within a few
`
`years, she was selling products bearing her original and distinctive designs
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`nationwide.
`
`9.
`
`Sugartown purchased the rights to the LILLY PULITZER brand in
`
`1993 and established a design team to continue creating original art, in keeping
`
`with Ms. Pulitzer’s original vision, on which the distinctive and popular Lilly
`
`Pulitzer designs are based.
`
`10.
`
`The LILLY PULITZER brand has enjoyed enormous success.
`
`Sugartown currently operates forty (40) Lilly Pulitzer retail stores in the United
`
`States selling fashion apparel and accessories featuring the distinctive Lilly
`
`Pulitzer designs, with one store in this District. In addition, Sugartown has entered
`
`into license agreements with third parties pursuant to which over seventy (70) Lilly
`
`Pulitzer “signature store” boutiques are operated throughout the United States
`
`selling Lilly Pulitzer fashion apparel and accessories. Sugartown also sells Lilly
`
`Pulitzer products through major department stores and individually-owned stores,
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 10 of 28
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`as well as through the Lilly Pulitzer website at http://www.lillypulitzer.com.
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`11.
`
`The unique, vibrant designs that appear on Lilly Pulitzer products are
`
`the original creations of Sugartown’s design team, and many are created as original
`
`works of art painted on canvas by Sugartown’s design team.
`
`12.
`
`In or around the summer of 2012, the Lilly Pulitzer design team
`
`created as a work made for hire the original artwork “Let’s Cha Cha” (the “Let’s
`
`Cha Cha Design”), shown below. A complete copy of the deposit material filed
`
`with the Copyright Office is attached as Exhibit A.
`
`
`
`13.
`
`The Let’s Cha Cha Design is an original work of authorship
`
`embodying copyrightable subject matter, subject to the full protection of the
`
`United States Copyright Act.
`
`14.
`
`Sugartown is the sole and exclusive owner to all right, title, and
`
`interest in and to the copyrights in the Let’s Cha Cha Design.
`
`15.
`
`Sugartown duly registered the copyright in the Let’s Cha Cha Design
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 11 of 28
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`with the United States Copyright Office. A copy of registration certificate VAu 1-
`
`118-082, issued November 21, 2012 and reflecting Sugartown’s ownership of the
`
`U.S. copyright in the Let’s Cha Cha Design, is attached hereto as Exhibit B.
`
`16.
`
`Sugartown designed, manufactured, advertised, and widely distributed
`
`fashion apparel and accessory products bearing the Let’s Cha Cha Design,
`
`commencing in 2013.
`
`17.
`
`Sugartown’s advertising included depictions of the Let’s Cha Cha
`
`Design on the Lilly Pulitzer website and in catalogs. The Let’s Cha Cha Design
`
`was sold in Lilly Pulitzer stores throughout the country.
`
`18.
`
`In or around the spring of 2010, the Lilly Pulitzer design team created
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`as a work made for hire the original artwork “First Impression” (the “First
`
`Impression Design”), shown below. A complete copy of the deposit material filed
`
`with the Copyright Office is attached as Exhibit C.
`
`19.
`
`The First Impression Design is an original work of authorship
`
`
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 12 of 28
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`embodying copyrightable subject matter, subject to the full protection of the
`
`United States Copyright Act.
`
`20.
`
`Sugartown is the sole and exclusive owner to all right, title, and
`
`interest in and to the copyrights in the First Impression Design.
`
`21.
`
`Sugartown duly registered the copyright in the First Impression
`
`Design with the United States Copyright Office. A copy of registration certificate
`
`VAu 1-033-885, issued August 2, 2010 and reflecting Sugartown’s ownership of
`
`the U.S. copyright in the First Impression Design, is attached hereto as Exhibit D.
`
`22.
`
`Sugartown designed, manufactured, advertised, and widely distributed
`
`fashion apparel and accessory products bearing the First Impression Design,
`
`commencing in 2011.
`
`23.
`
`Sugartown’s advertising included depictions of the First Impression
`
`Design on the Lilly Pulitzer website and in catalogs. The First Impression Design
`
`was sold in Lilly Pulitzer stores throughout the country.
`
`24.
`
`In or around the fall of 2011, the Lilly Pulitzer design team created as
`
`a work made for hire the original artwork “Wild Confetti” (the “Confetti Design”),
`
`shown on the following page. A complete copy of the deposit material filed with
`
`the Copyright Office is attached as Exhibit E.
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 13 of 28
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`
`
`25.
`
`The Confetti Design is an original work of authorship embodying
`
`copyrightable subject matter, subject to the full protection of the United States
`
`Copyright Act.
`
`26.
`
`Sugartown is the sole and exclusive owner to all right, title, and
`
`interest in and to the copyrights in the Confetti Design.
`
`27.
`
`Sugartown duly registered the copyright in the Confetti Design with
`
`the United States Copyright Office. A copy of registration certificate VAu 1-103-
`
`494, issued May 9, 2012 and reflecting Sugartown’s ownership of the U.S.
`
`copyright in the Confetti Design, is attached hereto as Exhibit F.
`
`28.
`
`Sugartown designed, manufactured, advertised, and widely distributed
`
`fashion apparel and accessory products bearing the Confetti Design, commencing
`
`in 2012.
`
`29.
`
`Sugartown’s advertising included depictions of the Confetti Design on
`
`the Lilly Pulitzer website and in catalogs. The Confetti Design was sold in Lilly
`
`Pulitzer stores throughout the country.
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 14 of 28
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`30.
`
`In or around the summer of 2013, the Lilly Pulitzer design team
`
`created as a work made for hire the original artwork “Lobstah Roll” (the “Lobstah
`
`Roll Design”), shown below. A complete copy of the deposit material filed with
`
`the Copyright Office is attached as Exhibit G.
`
`
`
`31.
`
`The Lobstah Roll Design is an original work of authorship embodying
`
`copyrightable subject matter, subject to the full protection of the United States
`
`Copyright Act.
`
`32.
`
`Sugartown is the sole and exclusive owner to all right, title, and
`
`interest in and to the copyrights in the Lobstah Roll Design.
`
`33.
`
`Sugartown duly registered the copyright in the Lobstah Roll Design
`
`with the United States Copyright Office. A copy of registration certificate VAu 1-
`
`153-371, issued November 27, 2013 and reflecting Sugartown’s ownership of the
`
`U.S. copyright in the Lobstah Roll Design, is attached hereto as Exhibit H.
`
`34.
`
`Sugartown designed, manufactured, advertised, and widely distributed
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 15 of 28
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`

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`fashion apparel and accessory products bearing the Lobstah Roll Design,
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`commencing in 2014.
`
`35.
`
`Sugartown’s advertising included depictions of the Lobstah Roll
`
`Design on the Lilly Pulitzer website and in catalogs. The Lobstah Roll Design was
`
`sold in Lilly Pulitzer stores throughout the country.
`
`36.
`
`In or around the spring of 2012, the Lilly Pulitzer design team created
`
`as a work made for hire the original artwork “Lucky Charms” (the “Lucky Charms
`
`Design”), shown below. A complete copy of the deposit material filed with the
`
`Copyright Office is attached as Exhibit I.
`
`
`
`37.
`
`The Lucky Charms Design is an original work of authorship
`
`embodying copyrightable subject matter, subject to the full protection of the
`
`United States Copyright Act.
`
`38.
`
`Sugartown is the sole and exclusive owner to all right, title, and
`
`interest in and to the copyrights in the Lucky Charms Design.
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 16 of 28
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`39.
`
`Sugartown duly registered the copyright in the Lucky Charms Design
`
`with the United States Copyright Office. A copy of registration certificate VAu 1-
`
`111-221, issued August 16, 2012 and reflecting Sugartown’s ownership of the U.S.
`
`copyright in the Lucky Charms Design, is attached hereto as Exhibit J.
`
`40.
`
`Sugartown designed, manufactured, advertised, and widely distributed
`
`fashion apparel and accessory products bearing the Lucky Charms Design,
`
`commencing in 2013.
`
`41.
`
`Sugartown’s advertising included depictions of the Lucky Charms
`
`Design on the Lilly Pulitzer website and in catalogs. The Lucky Charms Design
`
`was sold in Lilly Pulitzer stores throughout the country.
`
`42.
`
`Sugartown’s products made from its copyrighted Let’s Cha Cha
`
`Design, First Impression Design, Confetti Design, Lobstah Roll Design, and Lucky
`
`Charms Design are popular and commercially successful; they have acquired
`
`substantial market value in the trade.
`
`B. Dazzle Up’s Unlawful Activities
`
`
`43. On information and belief, Dazzle Up sells products under its Simply
`
`Southern trademark in stores that carry apparel, accessories, and gifts, and many of
`
`the stores that carry the Simply Southern products also sell Lilly Pulitzer products.
`
`44. On information and belief, Dazzle Up had access to the Let’s Cha Cha
`
`Design, First Impression Design, Confetti Design, Lobstah Roll Design, and Lucky
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 17 of 28
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`

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`Charms Design, all of which were widely advertised and sold in Lilly Pulitzer
`
`stores across the country and on the Lilly Pulitzer website.
`
`45. On information and belief, Dazzle Up has manufactured, imported,
`
`sold, offered for sale, advertised, promoted and/or distributed products, namely
`
`fashion apparel and accessories, bearing a design copied from and substantially
`
`similar to the Let’s Cha Cha Design. An example of such a product is shown
`
`below:
`
`
`A side-by-side comparison of the Let’s Cha Cha Design on Sugartown’s products
`
`
`
`and Dazzle Up’s product is shown on the following page:
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 18 of 28
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`

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`Lilly Pulitzer
`
`Lilly Pulitzer
`
`Dazzle Up
`
`
`
`
`
`46. On information and belief, Dazzle Up has manufactured, imported,
`
`sold, offered for sale, advertised, promoted and/or distributed products, namely
`
`fashion apparel and accessories, bearing a design copied from and substantially
`
`similar to the First Impression Design. An example of such a product is shown
`
`below:
`
`
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 19 of 28
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`

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`A side-by-side comparison of the First Impression Design on Sugartown’s product
`
`and Dazzle Up’s product is shown below:
`
`Lilly Pulitzer
`
`Dazzle Up
`
`
`
`
`
`47. On information and belief, Dazzle Up has manufactured, imported,
`
`sold, offered for sale, advertised, promoted and/or distributed products, namely
`
`fashion apparel and accessories, bearing a design copied from and substantially
`
`similar to the Confetti Design. An example of such a product is shown below:
`
`
`Comparisons of the Confetti Design on Sugartown’s products and Dazzle Up’s
`
`products are shown on the following page:
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 20 of 28
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`Lilly Pulitzer
`
`Lilly Pulitzer
`
`Lilly Pulitzer
`
`
`
`Dazzle Up
`
`Dazzle Up
`
`Dazzle Up
`
`
`
`
`
`
`
`48. On information and belief, Dazzle Up has manufactured, imported,
`
`sold, offered for sale, advertised, promoted and/or distributed products, namely
`
`fashion apparel and accessories, bearing a design copied from and substantially
`
`similar to the Lobstah Roll Design. An example of such a product is shown below:
`
`
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 21 of 28
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`

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`Comparisons of the Lobstah Roll Design on Sugartown’s product and Dazzle Up’s
`
`products are shown below:
`
`Lilly Pulitzer
`
`Lilly Pulitzer
`
`Lilly Pulitzer
`
`Dazzle Up
`
`Dazzle Up
`
`
`
`
`
`Dazzle Up
`
`
`
`
`
`49. On information and belief, Dazzle Up has manufactured, imported,
`
`
`
`sold, offered for sale, advertised, promoted and/or distributed products, namely
`
`fashion apparel and accessories, bearing a design copied from and substantially
`
`similar to the Lucky Charms Design. An example of such products is shown on the
`
`following page:
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 22 of 28
`
`

`

`
`
`Comparisons of the Lucky Charms Design on Sugartown’s products and Dazzle
`
`Up’s products are shown below:
`
`Lilly Pulitzer
`
`Dazzle Up
`
`
`
`
`
`50. On information and belief, Dazzle Up began to market and sell its
`
`products depicted in Paragraphs 45-49 above after Sugartown had publicly
`
`advertised, sold, and distributed its fashion apparel and accessories featuring the
`
`Let’s Cha Cha Design, First Impression Design, Confetti Design, Lobstah Roll
`
`Design, and Lucky Charms Design.
`
`51. On information and belief, Dazzle Up’s infringement of Sugartown’s
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 23 of 28
`
`

`

`copyrights in the Let’s Cha Cha Design, First Impression Design, Confetti Design,
`
`Lobstah Roll Design, and Lucky Charms Design is willful, intentional, and
`
`deliberate, and was accomplished with the intent to reap the benefits of
`
`Sugartown’s original artworks.
`
`52. As noted at item 2.Eiii in Exhibit 2 to Dazzle Up’s Declaratory
`
`Judgment Complaint, Dazzle Up even sells a product called “ChaCha,” further
`
`evidencing Dazzle Up’s familiarity with Sugartown’s designs.
`
`53. Consumers have remarked upon the similarities between Dazzle Up’s
`
`and Sugartown’s designs, as shown in the below Facebook post:
`
`
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 24 of 28
`
`

`

`54.
`
`The natural, probable, and foreseeable result of Defendants’ wrongful
`
`conduct has been and continues to be to deprive Sugartown of the benefits of its
`
`exclusive right to reproduce, distribute, and display products incorporating its
`
`copyrighted designs, or modifications thereof.
`
`CLAIM FOR RELIEF: COPYRIGHT INFRINGEMENT
`
`Sugartown repeats and incorporates by reference the allegations
`
`55.
`
`contained in the preceding paragraphs.
`
`56.
`
`Through the conduct described above, Dazzle Up has infringed
`
`Sugartown’s exclusive copyright rights in the five separate Sugartown registered
`
`designs, namely, the Let’s Cha Cha Design, First Impression Design, Confetti
`
`Design, Lobstah Roll Design, and Lucky Charms Design.
`
`57.
`
`Through its infringing acts, Dazzle Up has made profits and gains to
`
`which it is not entitled in law or equity.
`
`58. Dazzle Up’s infringements of Sugartown’s copyright rights in the
`
`Let’s Cha Cha Design, First Impression Design, Confetti Design, Lobstah Roll
`
`Design, and Lucky Charms Design have damaged and will continue to damage
`
`Sugartown.
`
`59. Dazzle Up’s infringements of Sugartown’s copyright rights in the
`
`Let’s Cha Cha Design, First Impression Design, Confetti Design, Lobstah Roll
`
`Design, and Lucky Charms Design have caused and will continue to cause
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 25 of 28
`
`

`

`irreparable harm to Sugartown, for which Sugartown has no adequate remedy at
`
`law.
`
`PRAYER FOR RELIEF
`
`
`
`Sugartown therefore prays that:
`
`1.
`
`Dazzle Up and its agents, officers, employees, representatives,
`
`successors, assigns, attorneys, parents, subsidiaries, affiliates, and all other persons
`
`acting for, with, by, through, or under authority from Dazzle Up, or in concert or
`
`participation with Dazzle Up, and each of them, be permanently enjoined, from
`
`reproducing, making, reprinting, modifying, publishing, displaying, manufacturing,
`
`selling, offering for sale, promoting, advertising, distributing and/or commercially
`
`exploiting in any manner, either directly or indirectly, any products or other
`
`materials on which are imprinted or which display unauthorized copies of the Let’s
`
`Cha Cha Design, First Impression Design, Confetti Design, Lobstah Roll Design,
`
`and Lucky Charms Design or any design substantially similar thereto;
`
`2.
`
`Dazzle Up be ordered to destroy all products, signs, labels, brochures,
`
`advertising, web sites, promotional materials, and/or other materials in Dazzle
`
`Up’s possession or control, which, if sold, distributed, or used in any way would
`
`violate paragraph 1 immediately above;
`
`3.
`
`Sugartown recover its actual damages caused by Dazzle Up’s conduct
`
`and all profits derived from Dazzle Up’s infringing acts in an amount to be
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 26 of 28
`
`

`

`determined at trial of this action; or in lieu of such damages and profits, should
`
`Sugartown so elect, Sugartown be awarded statutory damages, as provided by 17
`
`U.S.C. § 504(c);
`
`4.
`
`Dazzle Up be required to pay to Sugartown the costs of this action and
`
`Sugartown’s reasonable attorneys’ fees; and
`
`5.
`
`Sugartown be provided such other relief as this Court may deem just
`
`and proper.
`
`JURY TRIAL DEMAND
`
`Sugartown respectfully demands a trial by jury on all claims and issues so
`
`triable.
`
`Respectfully submitted, this 7th day of February, 2017.
`
`/s/ Jason Wenker
`Jason Wenker
`N.C. Bar No. 36076
`Kilpatrick Townsend & Stockton LLP
`1001 West Fourth Street
`Winston-Salem, NC 27101-2400
`336.607.7300 (Phone)
`330.734.2652 (Fax)
`
`
`
`James A. Trigg, Bar No. 716285
`Crystal C. Genteman, Bar. No. 294382
`Kilpatrick Townsend & Stockton LLP
`1100 Peachtree Street, Suite 2800
`Atlanta, Georgia 30309-4530
`404.815.6500 (Phone)
`404.815.6555 (Fax)
`
`Attorneys for Sugartown Worldwide LLC
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 27 of 28
`
`

`

`IN THE UNITED STATES DISTRICT COURT
`FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
`
`
`
`
`
`
`
`
`
`Civil Action No. 17-cv-15
`
`DAZZLE UP, LLC,
`
`
`
`v.
`
`SUGARTOWN WORLDWIDE LLC,
`
`
`
`
`Plaintiff,
`
`Defendant.
`
`CERTIFICATE OF SERVICE
`
`This is to certify that the foregoing was served on counsel for Plaintiff via the
`
`Court’s CM/ECF system and regular mail upon the following pursuant to the
`
`Federal Rules of Civil Procedure:
`
`David Sar
`Brooks, Pierce, McLendon, Humprey & Leonard, L.L.P.
`Post Office Box 2600
`Greensboro, North Carolina 27420
`
`
`Dated: February 7, 2017.
`
`/s/ Jason Wenker
`Jason Wenker
`Kilpatrick Townsend & Stockton LLP
`1001 West Fourth Street
`Winston-Salem, NC 27101-2400
`
`
`
`Case 1:17-cv-00015-TDS-JEP Document 7 Filed 02/07/17 Page 28 of 28
`
`

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