No Prizes for Gap in Copyright Claim

Sugartown Worldwide LLC ("Sugartown"), the owner of the famous Lilly Pulitzer (of the Pulitzer Prize family genus) trade mark, claims copyright infringement of several clothes and accessory items sold by Old Navy, a subsidiary of Gap, which bear prints similar its designs.

Dresses designed by Lilly Pulitzer are well known for featuring animal, beach themes and sunshine, such themes becoming significant to its recognition. The brand has went on to enjoy much strong success since establishing strong credentials in the 60's and 70's.

Sugartown's complaint encompasses two fabric designs, the "High Tide Design" created and incorporated in designs in 2012 and the "Sparks Fly Design" created in 2013. Both designs were registered with the US Copyright Office. It should be noted that the US Copyright Office does not protect clothes or accessories which are deemed not copyrightable its sphere of copyright protection does expand to original fabric designs.

Access

It is asserted in the complaint that in 2015 Old Navy manufactured and sold clothes and accessories copied from the "High Tide Design" and "Sparks Fly Design". To be successful Sugartown must convince the Court that the defendant had access to the protected designs. The Lilly Pulitizer designs were sold to the public in 2012 and 2013 and therefore Sugartown will be able to prove this.

Similarity

Sugartown must also show that the original and allegedly infringing work is 'substantially similar'. It seeks to do so by the placement of the designs side by side to that of the defendants', so the court can consider whether the infringing work is so.

The suit was filed in the Northern District of Georgia, where the courts consider that there is a substantial similarity works if "an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work".   As can be seen this is not determined by the use of experts, only the opinion of lay observers.

Who is a Lay Observer?

"An individual who, without any vested interest in the governing issue, is sufficiently informed and alert to identify precisely the differences in the competing designs, yet sufficiently informed and independent to fairly identify and assess the similarities; that is, at a minimum, neither an engaged expert nor an oblivious passerby" (see John Alden Homes, Inc. v. Kangas at 1344),

Sugartown has sought to rely on evidence found online, with consumers referring to the striking resemblance of the Lilly Pulitzer fabric designs and Old Navy Models, which may play a significant role in the outcome of the infringement claim.