Moda Operandi is suing a rival retailer for allegedly co-opting product images for its own e-commerce website. In the complaint that it lodged with the U.S. District Court for the Northern District of California on August 7, Moda Operandi alleges that The McMullen Brand – the independent luxury retailer that “owns, operates, and controls the commercial website shopmcmullen.com” and the corresponding “mobile site, social media pages, and applications,” as well as retail outposts in Northern California – made use of nineteen of its original copyright-protected photographs to market and sell the products depicted in the photos.
In the newly-filed lawsuit, Moda Operandi asserts that by way of the “publication and display” of nineteen images, Oakland, California-based McMullen “used the subject photographs for commercial purposes without Moda’s authorization.” This includes displaying the photos on the McMullen website “in connection with promoting, offering for sale, and/or selling the products depicted in the photographs,” which include garments from the likes of Ulla Johnson, Diotima, Khaite, and By Malene Birger, indie brands that are carried by both retailers.
> Moda Operandi revealed in a March letter to brand partners that emerging designers, like Diotima and co., represent about 60 percent of business at the company, potentially raising the stakes when it comes to the products displayed in the images at issue.
At the same time, Moda Operandi – which sets out a single claim for copyright infringement – contends in the lawsuit that McMullen’s infringement was carried out with “actual or constructive knowledge of, or with reckless disregard or willful blindness for, [its] rights in the photographs, such that said acts of copyright infringement were willful.”
Due to the alleged infringement at play, McMullen – which was founded in 2007 and has since been named the “top boutique in the country” and “one of the world’s most innovative retailers” by Vogue – obtained profits that it “would not have realized but for [such] infringement,” Moda Operandi alleges. The Lauren Santo Domingo co-founded retailer, which got its start in 2010 in New York, argues that it is entitled to disgorgement of the profits that McMullen made as a result of the infringement “in an amount to be established at trial.” At the same time, Moda maintains that the alleged infringement has caused it to suffer damages in an amount that will also be established at trial – assuming, of course, that the parties do not settle this long before the trial phase.
In addition to seeking monetary damages, including profits, Moda Operandi also wants the court to enjoin McMullen and anyone acting in concert with it from “further exploiting the photographs [at issue] for commercial purposes in any manner without [its] authorization absent some independent legal right.”
A representative for McMullen did not respond to a request for comment.
The case is Moda Operandi, Inc v. the McMullen Brand, Inc., 3:24-cv-04818 (N.D. Cal.).
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