Not too long ago we told you that Triangl Swimwear’s bikinis are some of the most heavily copied on the market. Every brand from Victoria’s Secret and PILYQ to Forever 21 and Target have been churning out copies based on the swimwear of this Australia-based swimwear brand, which is known for its color-blocked neoprene bikinis.
But as you know, along with immense success (think: immensely famous fans, such as Kendall and Kylie Jenner, Hailey Baldwin, Kate Hudson, Shay Mitchell, Miley Cyrus and Beyonce; roughly $60 million in annual sales; and adoption by the fashion industry as seen on many magazine covers and corresponding editorials) comes the inevitable battle against copies. And this is where Triangl currently finds itself.
Writing about the widespread availability of copies in the marketplace, BoF noted in a relatively recent article: “Triangl is battling a flood of knockoffs, with many emerging from such marketplaces as Alibaba. The duplicates keep [Triangl co-founder, Craig] Ellis awake some nights. Recently, while on a trip to Saint-Tropez, in France, he spotted a small store selling nearly exact copies of Triangl designs. There was nothing he could do about it.”
And yet, as we told you, there is something Ellis (and his co-founder, Erin Deering) could do. They could sue based on their intellectual property rights, namely, for trade dress infringement. And that is exactly what they have done.
TRIANGL VS. JIANGMEN CITY XINHUI DISTRICT
Late last week, Triangl filed suit against Jiangmen City Xinhui District, Lingzhi Garment Co., and MG Industrial Co., amongst other “intellectual property pirate” defendants, citing federal and common law trade dress infringement, trademark infringement, unfair competition and false designation of origin, copyright infringement, and injury to business reputation. The lawsuit, which was filed in the Southern District of New York, stems from the defendants’ manufacture and sale of swimwear that is identical to a number of Triangl bikinis.
According to Triangl’s lawsuit, it had originally hired the defendants “to make swimwear products for Triangl before the launch— and the explosion in popularity—of the Triangl brand. Shortly after the Triangl business began to take off and Triangl’s orders for production with Lingzhi began to increase, Triangl discovered that Lingzhi was surreptitiously manufacturing, offering to sell and selling knock-off Triangl-branded products and other products infringing Triangl’s trade dress and copyrighted designs to third-party customers.”
The trade dress description that Triangl asserts is as follows: “The decorative black trim on the bikini tops and bottoms, forming a “T” shape on the front of each bikini cup.”
Upon learning of the defendants’ infringing activities, Triangl alleges that it demanded that they cease all manufacturing and sales of the infringing swimwear, and that the defendants agreed to do so. However, Triangl claims: “Lingzhi has increased its efforts to reap profits from Triangl’s hard work, creativity and investment in the Triangl brand and designs, entirely co-opting Triangl’s business model and intellectual property. Under at least two different brand names, ‘Brakinis’ and ‘Vossue,’ and on numerous websites and online marketplaces, Lingzhi has sold bikinis that infringe Triangl’s trade dress and designs.”
But that is not all. Triangl claims that the defendants are not merely selling infringing swimwear, they are aiming to confuse consumers into believing the fake Triangl swimwear they are offering is authentic. For instance, Triangl claims that “Lingzhi promotes the bikinis using copyrighted images taken straight from Triangl’s website,” an allegation Triangl backs up by citing specific source code that the defendants use that is identical to the code that Triangl uses in connection with the images on its own website. Moreover, “Lingzhi is even more brazen [on certain online sites], sometimes holding out the [fake Triangl] bikinis to be authentic Triangl products, and even selling certain bikinis with the Triangl Mark on the bikini tags and zippers, as well as on packaging.”
In addition to asking for monetary damages, including lost profits, Triangl is seeking injunctive relief, which would consist of a court order that immediately and permanently prohibits the defendants from manufacturing, marketing, and selling the swimwear at issue. Triangl argues that such relief is necessary, as “Consumer confusion is already substantial and causing Triangl significant harm to its reputation and goodwill, as well as unlawfully diverting sales of Triangl bikinis.”
Moreover, “Lingzhi is unlawfully deriving sales and profits from the Knockoff Bikinis, and Triangl is suffering immediate and ongoing irreparable harm to its goodwill and reputation, as well as substantial financial damages. Although Defendants’ scheme is global in nature, it particularly harms Triangl in the U.S., Triangl’s primary marketplace, and in New York, the leading state for Triangl’s U.S. sales.”