Fashion Nova has famously been on the receiving end of a long list of infringement lawsuits; the since-settled copyright and trademark infringement case that Versace filed against it for allegedly selling “deliberate copies and imitations of [its] most famous and recognizable designs, marks, symbols and other protected elements,” including the design of its famous “J.Lo dress,” for instance, comes to mind. But a new Fashion Nova lawsuit flips the script, with the fast fashion giant accusing a fellow Los Angeles-based fast fashion retailer of copyright infringement for taking product images from Fashion Nova’s website and using them on its own site in order to compete with its well-established competitor.
Setting the stage in the complaint that it filed with the U.S. District Court for the Central District of California on August 29, Fashion Nova claims that it has experienced “explosive growth since the launch of the e-commerce website in 2013,” with its website “now rank[ing] as one of the most viewed fashion sites in the United States.” By way of its “dynamic e-commerce site,” Fashion Nova says that it “markets and sells a diverse range of lifestyle clothing and accessories for men, women, and children, with as many as 200,000 different styles offered for sale, including over 1,000 new styles per week, and up to several hundred new styles per day, with price points generally within the $10-$50 range.”
At the heart of its e-commerce site and corresponding social media channels, Fashion Nova claims in its newly-filed lawsuit, are “visually appealing, striking photographic images and videos of [models] wearing or using [its] products – which serve to attract consumer interest and, ultimately, purchases of Fashion Nova products.”
In light of the success of its e-commerce-centric venture, Fashion Nova claims that budding young rival Blush Mark has “intentionally and wrongfully stolen [its] valuable product images and is using them on its website to market and sell products that directly compete with the very same Fashion Nova products depicted in those product images.” Specifically, Fashion Nova points to eleven images that it maintains copyright registrations for, which it alleges that the almost-two-year-old Blush Mark has “downloaded digital copies of from the Fashion Nova website,” removed the file names from (in furtherance of an attempt to “conceal [its] infringement of Fashion Nova’s copyright rights in and to product images owned and/or exclusively licensed by Fashion Nova”), and published to its own site without Fashion Nova’s authorization.
Blush Mark “engaged in its infringing uses of the images at issue for the purpose of marketing, advertising, promoting, offering, and selling products that directly compete with Fashion Nova’s products,” Fashion Nova contends, “with the intention of obtaining an unfair business advantage against Fashion Nova and avoiding the investment of time, money and resources that would otherwise be necessary to develop and create its own product imagery.”
With the foregoing in mind, Fashion Nova sets out a single claim of copyright infringement, as well as copyright management information violations due to Blush Mark’s alleged removal of Fashion Nova’s copyright management information for the product images at issue. The retailer is seeking monetary damages, namely, “all damages sustained by Fashion Nova as a result of Blush Mark’s infringements of Fashion Nova’s copyright rights in and to the images, as well as all gains, profits, and advantages realized by Blush Mark from said infringements,” along with injunctive relief barring Blush Mark from continuing to infringe its imagery and from removing or altering the copyright management information tied to such imagery.
A Case Over Copyright or Competition?
A read between the lines of the Fashion Nova lawsuit suggests that there is more going on here than just a straightforward copyright infringement battle; the case seems to center more significantly on competition between the two fast fashion companies, with Fashion Nova asserting that Blush Mark’s infringement comes as the newer market entrant has been busy “pursu[ing] a business model that replicates [the] successful business model that has led Fashion Nova to be the ‘fast fashion’ industry leader,” including offering up “products are the same as and highly similar to Fashion Nova’s products, targeted to the same customers, and sold at comparable price points.”
In short, Fashion Nova alleges that “Blush Mark and its products directly compete with Fashion Nova.”
Fashion Nova has been accused in the past of trying to monopolize the market and maintain its spot on the fast fashion totem pole in the U.S., and the company may be feeling threatened given that its competitive advantage rests largely on its ability to offer up substantial quantities of trendy garments and accessories for low, low prices. After all, Blush Mark is offering at least some of the exact same products for even lower prices (it boasts that its “styles start as low as $5”), and gaining rising media attention and a growing number of Instagram and TikTok tags in the process. It is worth noting that Fashion Nova’s wares come from a collection of “hundreds of manufacturers … which are hired by middlemen to produce garments for fashion brands.” Given the lack of exclusivity at play in at least some of its supplier arrangements, those garments can be purchased by other brands, such as Blush Mark, which seems to be what is going on here.
Since replicating the fast fashion business model (without going so far as to interfere with Fashion Nova’s existing contracts with vendors to boost its business, for instance, or misappropriating its trade secret-protected customer and/or supplier lists) does not give rise to an actionable offense, Fashion Nova appears to be left with the copyright infringement claims that it has lodged against Blush Mark as a means of chipping away at its burgeoning competitor.
Another striking takeaway: The overarching push towards ESG in fashion and the oft-reported penchant among Gen-Z and millennial consumers for sustainably-made wares has not put much of a dent in the global fast fashion market, which was worth an estimated $91.23 billion as of 2021, and enduring competition among established entities and rising new players.
A rep for Blush Mark was not immediately available for comment about the Fashion Nova lawsuit.
The case is FASHION NOVA, LLC, v. Blush Mark, Inc., 2:22-cv-06127 (C.D.Cal.)