Aritzia has won the latest round of a lawsuit accusing it of intentionally copying Tangle’s sculptural works by way of bright pink sculptures that appeared in its store windows and social media campaigns, thereby, engaging in trade dress and copyright infringement. In a newly-issued order, a judge for the U.S. District Court for the Northern District of California granted Aritzia’s motion to dismiss and dismissed Tangle’s copyright and trade dress infringement complaint. The court did so without prejudice, leaving the door open for Tangle – known for its toys, which consist of interlocking, 90-degree curved pieces (some of which come in a chrome pink hue) – to amend its complaint for a third time.
Some Background: Tangle first filed its lawsuit against Aritzia in April, and subsequently lodged two amended complaints, alleging that not only are Aritzia’s sculptures substantially similar to the toys that it makes, but there has been actual consumer confusion, including a social media comment in which a user described the Aritzia sculptures as “a giant Tangle toy!” Aritzia, a Vancouver-based fashion retailer, responded to Tangle’s claims by seeking dismissal, arguing on the copyright front that because its window displays “are not virtually identical, or even substantially similar, in specific shape, color, or size to [Tangle’s] registered works, they are not substantially similar as a matter of law.” Taking issue with Tangle’s trade dress infringement cause of action, Aritzia argued that Tangle failed to “specifically define the list of elements that comprise the trade dress.”
Delving into Aritzia’s bid for dismissal, N.D. Cal. Judge Jeffrey White found that Tangle falls short on its copyright infringement claim, as it has not adequately alleged that: (1) it has valid copyrights or (2) Aritzia copied protected aspects of its works.
Copyright Infringement – Ultimately finding that Tangle has not adequately alleged valid copyrights, the court held, among other things, that …
– “Tangle attached copyright registrations for nine works to its [second amended complaint] and alleged that all of Aritzia’s displays infringed all nine works … Tangle conceded two of the nine alleged copyrighted works were not infringed and argued the ‘core expression’ was the original 3-D sculpture and that the other registered sculptures were derivative works. Tangle also contended that any works with chrome finish are derivative works protected by the registration with the silver chrome finish.”
– “In claiming that all of the different Aritzia displays, which varied in number of segments and positioning, infringe all of Tangle’s copyrighted sculptures, Tangle seeks to copyright a particular style. Style, no matter how creative, is an idea, and is not protectable by copyright.”
– The court also rejected “Tangle’s sweeping argument that any configuration of 17 or 18 interlocking segments of the same size and manipulable along the same axes would infringe Tangle’s copyrights. Only works that are ‘fixed’ are subject to copyright protection. Tangle cannot claim ownership of every conceivable iteration of tubular sculptures made of interlocking 90-degree segments merely because its own such sculptures can be manipulated into any configuration. Instead, Tangle must allege that a specific accused work infringes upon a specific, fixed, protected work.”
As for alleging substantial similarity between the two companies’ sculptures (gauged in the Ninth Circuit by way of the extrinsic-intrinsic test), Tangle falls short here, the court found. In terms of the first prong of the extrinsic test, which involves identifying the protectable elements of the underlying work, Judge White held that “copyright law would not protect 90-degree curved tubular pieces or sculptures made of interlocking pieces,” just as it would not protect the color pink, or pink chrome. On the other hand, what the law would protect is the “‘selection, coordination, and arrangement’ of 90-degree curved tubular sculptures made of eighteen interlocking pieces.”
Reflecting on the second prong, which compares the similarity of the protectable elements of the works, the court sided with Aritzia, particularly in light of the thin protection afforded to Tangle given that “the range of expression is narrow because there are only so many ways to create tubular sculptures made of interlocking 90-degree segments.” According to the court, there are “more than de minimus differences are apparent between the two [companies’] sculptures,” from the color to the scale, and thus, Tangle’s copyright claim fails.
Trade Dress Infringement – In yet another win for Aritzia, the court determined that Tangle “has not plausibly alleged distinctive trade dress infringement.” Primarily, Judge White held that Tangle has not met the “notice pleading” standard required by Rule 8 for its trade dress. The second amended complaint “does not define Tangle’s alleged trade dress with sufficient precision to give the defendants adequate notice of the basis of [the] trade dress claim,” according to the court.
Echoing one of Aritzia’s arguments, Judge White says that he “cannot determine from the face of the [complaint] whether Tangle seeks trade dress protection over ‘chrome pink’; segmented tubular sculptures; chrome pink segmented tubular sculptures; or some other combination of elements.” Not finished there, the Judge held that, although Aritzia does not move on this basis, Tangle’s complaint, nonetheless, “lacks well-pleaded allegations that the elements of its trade dress are non-functional, or that the trade dress is inherently distinctive or has acquired secondary meaning.” Should Tangle choose to replead its trade dress claim, it “should address those deficiencies.”
Having dismissed Tangle’s copyright and trade dress claims without prejudice, the court held that the toy-maker has until November 8 to file an amended complaint.
The case is Tangle, Inc. v. Aritzia, Inc., 3:23-cv-01196 (N.D. Cal.)
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