1 O 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 CENTRAL DISTRICT OF CALIFORNIA 10 11 12 ROMEX TEXTILES, INC., a ) CV 18-06543-RSWL-AGR California Corporation, ) 13 ) Plaintiff, ) ORDER re: Defendants’ 14 ) Motion for Summary ) Judgment [63] 15 v. ) ) 16 ) HK WORLDWIDE, LLC, d/b/a ) 17 HOT KISS, a New York ) Limited Liability Company; ) 18 APOLLO APPAREL NY, LLC, a ) New York Limited Liability ) 19 Company; ROSS STORES, INC., ) a Delaware Corporation; R&R ) 20 GOLDMAN ASSOCIATES, INC., ) d/b/a DISCOVERY CLOTHING ) 21 COMPANY, an Illinois ) Corporation; SPECIALTY 22 RETAILERS, INC., a Texas Corporation; BEALL’S OUTLET 23 STORES, INC., a Florida Corporation; and DOES 1-10, 24 inclusive, 25 Defendants. 26 Plaintiff Romex Textiles, Inc. (“Plaintiff”) brings 27 this copyright infringement Action against Defendants 28 1 Apollo Apparel NY, LLC; Ross Stores, Inc.; R&R Goldman 2 Associates, Inc., d/b/a Discovery Clothing Company; 3 Specialty Retailers, Inc.; Beall’s Outlet Stores, Inc.; 4 and Does 1 through 10 (collectively, “Defendants”).1 5 Am. Compl., ECF No. 46. Currently before the Court is 6 Defendants’ Motion for Summary Judgment (“Motion”) 7 [63]. Having reviewed all papers submitted pertaining 8 to this Motion, the Court NOW FINDS AND RULES AS 9 FOLLOWS: the Court DENIES Defendants’ Motion. 10 11 I. BACKGROUND 12 A. Factual Background 13 Plaintiff is a California corporation. Am. Compl. 14 ¶ 4. Defendants are a series of corporations domiciled 15 in New York, Delaware, Illinois, Texas, and Florida. 16 Id. ¶¶ 6-10. Plaintiff is the owner and author of a 17 two-dimensional artwork (the “Subject Design”) called 18 “AE_T1697" under the title of work “AE Design Studio 3- 19 31-2014". Decl. of Shawn Binafard (“Binafard Decl.”) 20 ISO Pl.’s Opp’n ¶ 4, ECF No. 67-1. On March 31, 2014, 21 Plaintiff was granted a copyright for the Subject 22 Design, with Registration No. VA 1-903-180. Pl.’s 23 Opp’n, Ex. A (“Subject Design Registration”), ECF No. 24 67-3. The Subject Design is a floral design, which is 25 depicted below. Defs.’ Mot. for Summ. J. (“Mot.”), Ex. 26 27 1 Plaintiff initially included HK Worldwide, LLC as a Defendant in this Action. HK Worldwide, LLC was dismissed 28 without prejudice by stipulation on March 25, 2019. ECF No. 53. (the “Subject Design”), ECF No. 67-4. 2 (Cine RSESBR Donen 2 iPod □□□ oP Rape bb bt Pigripe mes te Sa 3 sme ABTI607-8F oat 4 □□ Se Sas 5 a: sy o>! br ee ty r □□ = a 6 aa ee iy on ri □ i 7 5 | Pm S-es 8 ae Sy cB ee 10 Oey. a! pat yt | a tS 12 aire 13 14 Plaintiff alleges that Defendants manufactured, 15 | purchased, sold, or marketed two garments (the “Accused 16 Designs”) which infringe the Subject Design. The two 17 }}allegedly infringing garments are depicted below, and 18 entitled Version 1 and Version 2, respectively. 19 Version 1 2 0 a TS ASR Eeceene sts Ae Mage Me Page tz 21 22

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11 /Mot., Ex. C (“Accused Designs”), ECF No. 63-5. 13 || Defendants deny that they infringed the Subject Design, 14 and bring this Motion alleging that they are entitled judgment as a matter of law because the Subject 16 || Design and Accused Designs are not substantially 17||/Similar. See generally Mot. Procedural Background 19 Plaintiff filed its Complaint [1] on July 30, 2018 20 then filed its Amended Complaint [46] on March 6, 21]/2019. Defendants timely filed their Answers to the 22 Amended Complaint [55-59], denying Plaintiff's 23 }allegations and asserting affirmative defenses, including lack of substantial similarity between the Subject Design and Accused Designs. 26 On May 28, 2019, Defendants filed the instant 27 ]}Motion for Summary Judgment [63], alleging that the 28 |} Subject Design and Accused Designs are not

1 substantially similar. Plaintiff filed its Opposition 2 on June 4, 2019 [67]. Defendants filed their Reply 3 [68] on June 10, 2019. Plaintiff then filed a Sur- 4 Reply [69] in support of its Opposition, in which 5 Plaintiff filed evidentiary objections to Defendants’ 6 Reply, responses to Defendants’ evidentiary objections, 7 and a Statement of Controverted Facts. Defendants 8 filed an Objection to Plaintiff’s Sur-Reply on June 17, 9 2019 [70]. 10 II. DISCUSSION 11 A. Legal Standard 12 Summary judgment should be granted “if the movant 13 shows that there is no genuine dispute as to any 14 material fact and the movant is entitled to judgment as 15 a matter of law.” Fed. R. Civ. P. 56(a). A fact is 16 “material” for purposes of summary judgment if it might 17 affect the outcome of the suit, and a “genuine” issue 18 exists if the evidence is such that a reasonable fact- 19 finder could return a verdict for the nonmovant. 20 Anderson v. Liberty Lobby, Inc., 477 U.S. 244, 248 21 (1986). The evidence, and any inferences based on 22 underlying facts, must be viewed in the light most 23 favorable to the nonmovant. Twentieth Century-Fox Film 24 Corp. v. MCA, Inc., 715 F.2d 1327, 1328-29 (9th Cir. 25 1983). In ruling on a motion for summary judgment, the 26 court’s function is not to weigh the evidence, but only 27 to determine if a genuine issue of material fact 28 exists. Anderson, 477 U.S. at 255. 1 Where the nonmovant bears the burden of proof at 2 trial, the movant need only prove that there is no 3 evidence to support the nonmovant’s case. In re Oracle 4 Corp. Secs. Litig., 627 F.3d 376, 387 (9th Cir. 2010). 5 If the movant satisfies this burden, the burden then 6 shifts to the nonmovant to produce admissible evidence 7 showing a triable issue of fact. Id.; Nissan Fire & 8 Marine Ins. Co. v. Fritz Cos., 210 F.3d 1099, 1102-03 9 (9th Cir. 2000); see also Cleveland v. Policy Mgmt. 10 Sys. Corp., 526 U.S. 795, 805–06 (1999)(quoting Celotex 11 Corp. v. Catrett, 477 U.S. 317, 322 (1986)). 12 B. Analysis 13 1. Objections 14 a. Plaintiff’s Objections 15 Plaintiff filed several evidentiary objections to 16 the Declarations of Edward Alfaks and Philip A. Byler. 17 See Pl.’s Evid. Objs., ECF Nos. 67:9-10. The Court 18 does not rely on the objected-to evidence, and thus the 19 Court DENIES as MOOT Plaintiff’s objections. 20 b. Defendants’ Objections 21 Defendants object to Exhibits D and E to the 22 Declaration of Chan Yong Jeong—which contain side-by- 23 side comparisons of specific flowers in the Subject 24 Design and Accused Designs—on the grounds that the 25 Exhibits are misleading since they are “black and white 26 unclear presentations of small aspects of the larger 27 designs at issue that do not show the larger designs.” 28 See Defs.’ Evid. Objs., ECF No. 68-7. First, 1 Defendants cite no authority for their position that 2 the Court is unable to analyze individual aspects of 3 the designs, and as will be discussed further, case law 4 suggests otherwise. In any event, contrary to 5 Defendants’ assertion, Exhibits D and E contain both 6 zoomed-in images of certain flowers in the designs and 7 larger images of the floral patterns as a whole. 8 Second, the images depicted in Exhibits D and E are not 9 black and white as Defendants contend. Nonetheless, 10 the Court acknowledges that the coloring of the images 11 in Exhibits D and E differ from the coloring of the 12 Subject Design as it is depicted in Plaintiff’s Swatch 13 Sheet.2 However, the Court only relies on Exhibits D 14 and E to evaluate the shape, shading, and structure of 15 the flowers, not their color. As such, the Court 16 DENIES Defendants’ Evidentiary Objections. 17 Defendants also object to Plaintiff’s Sur-Reply 18 papers, in which Plaintiff responded to Defendants’ 19 evidentiary objections, asserted new evidentiary 20 objections to evidence presented in Defendants’ Reply, 21 and filed a Statement of Disputed Facts. See ECF No. 22 70. The Court does not rely on Plaintiff’s Sur-Reply 23 papers, and thus the Court DENIES as MOOT Defendants’ 24 Objection to them. 25 2. Analysis 26 To establish copyright infringement, Plaintiff must 27 2 Plaintiff’s Swatch Sheet of the Subject Design is attached 28 to Defendants’ Motion as Exhibit B. See ECF No. 63-4. 1 prove “(1) ownership of a valid copyright, and (2) 2 copying of constituent elements of the work that are 3 original.” Feist Publ’ns, Inc. v. Rural Tel. Servs. 4 Co., 499 U.S. 340, 361 (1991). To satisfy the copying 5 element, Plaintiff must show either “(1) that the two 6 works in question are strikingly similar, or (2) that 7 the works are substantially similar and that Defendants 8 had access to the Subject [Design].” Malibu Textiles, 9 Inc. v. Label Lane Int’l, Inc., 922 F.3d 946, 952 (9th 10 Cir. 2019)(quotations omitted). Defendants move for 11 summary judgment on the basis that there is no 12 substantial similarity of the Subject Design and 13 Defendants’ designs. 14 a. Ownership of Valid Copyright 15 “A certificate from the U.S. Register of Copyrights 16 ‘constitutes prima facie evidence of the validity of 17 the copyright.’” Desire, LLC v. Manna Textiles, Inc., 18 No. CV 16-4295-DMG (JEMx), 2017 WL 5635009, at *6 (C.D. 19 Cal. Aug. 18, 2017)(quoting 17 U.S.C. § 410(c)). 20 Plaintiff’s design was registered with the United 21 States Copyright Office, and thus validity of the 22 copyright is presumed. See Subject Design 23 Registration. To overcome this presumption, the burden 24 shifts to Defendants to “rebut the facts set forth in 25 the copyright certificate.” Id. (quoting United 26 Fabrics Int’l, Inc. v. C&J Wear, Inc., 630 F.3d 1255, 27 28 1 1257 (9th Cir. 2011)). Defendants fail to do so,3 and 2 in any event, assert that their Motion for Summary 3 Judgment is “based solely on the lack of substantial 4 similarity between the allegedly copyrighted design and 5 the allegedly infringing design . . . .” Defs.’ Reply 6 5:15-17, ECF No. 68. Thus, the Court turns to the 7 copying element, and evaluates the similarity of the 8 designs. 9 b. Copying by Defendants 10 “Summary Judgment is not highly favored on 11 questions of substantial similarity in copyright 12 cases.” L.A. Printex Industries, Inc. v. Aeropostale, 13 Inc., 676 F.3d 841, 848 (9th Cir. 2012). “Where 14 reasonable minds could differ on the issue of 15 substantial similarity . . . summary judgment is 16 improper.” Shaw v. Lindheim, 919 F.2d 1353, 1355 (9th 17 Cir. 1990). 18 “In assessing whether particular works are 19 substantially similar, or strikingly similar, this 20 Circuit applies a two-part analysis: the extrinsic test 21 and the intrinsic test.” Unicolors, Inc. v. Urban 22 23 3 At most, Defendants argue that the idea of a flower design is not protectable and that standard aspects of a flower design 24 are not protectible. However, even if the idea of floral designs and certain elements of floral designs are not protectable, 25 Plaintiff’s “original selection, coordination, and arrangement of such elements is protectible.” L.A. Printex Industries, Inc., 26 676 F.3d at 850 (“Because there is a wide range of expression for selecting, coordinating, and arranging floral elements in 27 stylized fabric designs, copyright protection is broad and a work will infringe if it’s substantially similar to the copyrighted 28 work.”)(quotations omitted). 1 Outfitters, Inc., 853 F.3d 980, 985 (9th Cir. 2017). 2 “The extrinsic test requires plaintiffs to show overlap 3 of concrete elements based on objective criteria, while 4 the intrinsic test is subjective and asks whether the 5 ordinary, reasonable person would find the total 6 concept and feel of the works to be substantially 7 similar.” Id. (quotations omitted). While the Court 8 may determine whether Plaintiff has satisfied the 9 extrinsic test, “once th[at] objective threshold is 10 met, it is the role of the jury to make a nuanced 11 subjective determination under the intrinsic test.” 12 Id. at 987. Thus, the Court proceeds to apply the 13 extrinsic test. 14 i. Identifying Protectable Elements 15 The first step in applying the extrinsic test is to 16 “distinguish protectible from unprotectible elements 17 [of a work] and ask only whether the protectible 18 elements in two works are substantially similar.” L.A. 19 Printex Industries, Inc., 676 F.3d at 850. While the 20 idea of a floral design or the natural appearance of 21 the flowers themselves is not protectable, Plaintiff’s 22 “[o]riginal selection, coordination, and arrangement” 23 of the flowers in the Subject Design is protectable 24 expression. Id. “After all, there are gazillions of 25 ways to combine petals, buds, stems, leaves, and colors 26 in floral designs on fabric.” Malibu Textiles., Inc., 27 922 F.3d at 953. 28 /// 1 ili. Comparing Similarities 2 Next, the Court compares the protectable elements the Subject Design to the Accused Designs “to assess similarities in the objective details of the works.” (quotations omitted). “In comparing fabric 6 || designs, we examine the similarities in their objective 7| details in appearance, including, but not limited to, 8 || the subject matter, shapes, colors, materials, and arrangement of the representations.” Id. 10 1. Version 1 11 12 SUBJECT DESIGN ACCUSED DESIGN a 5 (Frontside) 13 | | 5 14 || page vi 2 ki 15 | ee me ee shar Na me reas 16 | AM FJ ae ve ea 17 | ECan 18 19 20 SUBJECT DESIGN ACCUSED DESIGN 3 (backside) 2 1 □□ Po Vine ; —. ~~ ate = 7 22 || (ae Ch tie a Re Yad aR □ i 23 | a A □□ es ee a . ea a ee A ee: 24 yf “yg x: 74 ed ‘al 25 | Mane wa = Pes, eee 26 27 28 | /// 11

1 Plaintiff identifies five “elements” of 2 similarities between the flowers in the Subject Design 3 and the Accused Design Version 1. Defendants dispute 4 that the Court should consider these elements, arguing 5 that only the Subject Design as a whole is entitled to 6 copyright protection. While the protectable aspect of 7 the Subject Design is the selection, coordination, and 8 arrangement of the floral pattern, as opposed to the 9 individual flowers themselves, the unique expressions 10 in each flower are nonetheless relevant since they 11 contribute to the Subject Design as a whole. For this 12 reason, courts within the Ninth Circuit have compared 13 both individual flowers and the works as a whole in 14 determining substantial similarity. See, e.g., Desire, 15 LLC v. Manna Textiles, Inc., No. CV 16-4295-DMG (JEMx), 16 2017 WL 5635009, at *10 (C.D. Cal. Aug. 18, 17 2017)(“Before analyzing the Subject and Accused Designs 18 as a whole—i.e., considering the floral design and 19 pattern as a textile print, as opposed to the 20 individual flowers alone—the Court evaluates the 21 flowers individually under the extrinsic test.”). 22 Thus, the Court first compares the similarities amongst 23 the five elements identified by Plaintiff, and then 24 analyzes the works as a whole. 25 Element 1 highlights the largest red flower in each 26 design. As depicted below, both the Subject Design and 27 Accused Design contain the same three layers of petals, 28 with each petal layer blooming outward at the same 1]|}degree. Moreover, the shape and shading is nearly 2{|/identical in each of the flower’s petal layers. While colors of shading are darker in the Accused Design, rational jury could find that these difference 5 | result from the fabric-printing process generally and 6 || are inconsequential.” L.A. Printex Industries, Inc., F.3d at 851 (quotations omitted). 8 9 SUBJECT DESIGN ACCUSED DESIGN 10 ~~ ¥P re ‘ coy

13 = go 1a oe 14 15 16 Element 2, depicted below, refers to a mid-sized 17 || red flower in each design, which is shaped and shaded 18 nearly identically. Additionally, both designs depict small petal jutting toward the left at the bottom of 20 |) the rosebud. 21 22 SUBJECT nesioh nceuseo DESIGN 23

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1 Element 3, depicted below, reveals a mid-sized red flower with nearly identical shape and shading. 3 ||Moreover, each flower contains a more pronounced green 4ftovule. The ovule is shaded similarly in both designs, 5]}with the area closest to the rosebuds shaded in one 6 || color and the lower area of the ovule shaded in a contrasting color. Next to the ovule in both designs, leaf protrudes out to the right and curves down. 9 10 □ aalciecnd aeons

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1 Element 4, depicted below, reflects a three-petal flower with three curved slopes along the outer petals, steeper slopes along the central petal, blooming 4]/outward from an asymmetrical ovule jutting toward the 5] left. The shading in each flower, and in the ovule 6 | connected to the flower, is nearly the same. 7 3 iiss ONPRICRR UiualseE Coen RaQLST gitePate 9 SUBJECT DESIGN ACCUSED DESIGN 10 | ee }

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1 Element 5, depicted below, reflects a large, more 2| cylindrical red flower that is shaded almost identically in both designs. The shape of the flowers also nearly identical, with the leftmost petal 5] jutting outward to the left and appearing taller than rest of the flower, the rightmost petal sloping downward, and the swirl of the rose appearing the same 8 both. 9 10 Cenc cna nila: dientog Tiptree 11 SUBJECT DESIGN ACCUSED DESIGN 12 ' =

14 \ □□ | 15 _ | 16 17 18 19 In addition to these individual similarities, a 20 jury could find that the floral patterns as a whole are substantially similar based on the following: both 22 depict small bouquets of red flowers resembling roses, both contain the same varying sizes and shapes of the ]}roses, both have green leaves with short stems 25} connecting the roses to the leaves and each other, and 26} both contain a similar ratio between the flowers and 27 ||}negative space. See, e.g., Star Fabrics, Inc. v. 28 |} Closet Signature Fashion Valley Mall, No. LA CV 17- 16

1 09260-JAK-FFM, 2018 WL 6265095, at *4 (C.D. Cal. May 4, 2 2018)(finding substantial similarity based on the shape 3 and texture of the flowers and the clustering of 4 certain types of flowers, color of the flower petals 5 and their leaves, size of the flowers and leaves, and 6 ratio between the flowers and negative space). 7 Defendants dispute these similarities and focus on 8 four alleged differences between the designs: (1) in 9 the Subject Design most of the big red flowers have 10 smaller yellow flowers of a different kind than the red 11 flowers, whereas in the Accused Designs, the big 12 flowers are not accompanied by smaller flowers of a 13 different kind; (2) in the Subject Design, all of the 14 big red flowers have large green leaves, whereas in the 15 Accused Designs a majority of the big red flowers have 16 a vine with small flowers winding away from the big 17 flowers and some of the big flowers have no small 18 flowers at all; (3) the Subject Design has flowers 19 close together, whereas the Accused Designs are spread 20 out more such that there are empty spaces without 21 flowers; and (4) the Subject Design has a different big 22 red flower than the Accused Designs. Mot. at 6:7-21. 23 However, of the four listed differences, the second and 24 third differences only pertain to Version 2 of the 25 Accused Design. Further, the Court disagrees with 26 Defendants as to the fourth difference in light of the 27 similarities between the large red flowers discussed 28 above. The Court agrees with Defendants that the first difference is the most distinguishable feature of the Subject Design, and indeed, the difference may ultimately lead a jury to conclude that the two works not substantially similar. However, at this 5] juncture and “in light of the similarities described 6 | above, the differences support the .. . conclusion[] 7| that there is a genuine dispute of material fact on 8 substantial similarity.” See L.A. Printex Industries, 9f}Inc., 676 F.3d at 851. 10 In sum, the Court finds that a triable issue of fact exists as to whether there is substantial 12 || similarity between the Subject Design and Version 1 of Accused Design. 14 2. Version 2 15 16 SUBJECTDESIGN. ~~~ «ACCUSED DESIGN 17 er a wy aw”

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25 26 For many of the same reasons as stated with respect 27 Version 1 of the Accused Design, a reasonable juror 28 could also find that Version 2 of the Accused Design is 18

1]} substantially similar to the Subject Design. Specifically, Version 2 contains four of the five 3] “elements” of similarities that Version 1 had. Those four elements, depicted below, relate to the similarities between the largest red flowers in each 6 | design; the mid-sized red flowers with a small petal jutting toward the left at the bottom of the rosebud; 8 ||} the three-petal flower with three curved slopes along outer petals and steeper slopes along the central petal, blooming outward from an asymmetrical ovule 11] jutting toward the left; and the large, more 12 | cylindrical red flower that is shaded almost 13 || identically in both designs with the leftmost petal 14 || more prominent than the other petals and sloping to the 15} left. 16 SUBJECTDESIGN. —SACCUSED DESIGN 17 gern

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12 ct J) av) a ae as ~~ 14 15 16 When viewed as a whole, the Subject Design and 17 |} Accused Design Version 2 also contain similarities. 18 || Specifically, both designs depict small bouquets consisting of the same red flowers that resemble roses, 20} both contain the same varying sizes and shapes of the 21]}roses, and both contain negative space between each 22 bouquet. See Desire, LLC, 2017 WL 5635009, at *11 23] (finding that where the same types of flowers were 24 || portrayed in both designs and the sizes of flowers in 25 ]/each design were consistent, there existed a triable 26/issue of fact as to substantial similarity of the 27 ||}designs as a whole). 28 Despite these similarities, the Court also 20

1 recognizes that there are significant differences 2 between the two works. First, the big red flowers in 3 Version 2 of the Accused Design are not accompanied by 4 yellow flowers or flowers of a different kind. 5 Instead, the big red flowers are either accompanied by 6 one other medium red flower of the same type as the 7 large red flower, or are isolated and unaccompanied by 8 any other flowers or leaves. Second, Version 2 of the 9 Accused Design does not contain any green leaves or 10 stems. Third, the flowers and bouquets in Version 2 of 11 the Accused Design are more spread out than the 12 bouquets depicted in the Subject Design, as the flowers 13 are either isolated or connected to a dark grey vine 14 with small flowers winding away from the big flowers. 15 Fourth, the color scheme of the two designs is 16 different. Nonetheless, as stated with respect to the 17 differences found between the Subject Design and 18 Version 1 of the Accused Design, these differences only 19 further support the conclusion that a triable issue of 20 fact exists. See L.A. Printex, 676 F.3d at 851 (“It is 21 entirely immaterial that, in many respects, plaintiff’s 22 and defendant’s works are dissimilar, if in other 23 respects, similarity as to a substantial element of 24 plaintiff’s work can be shown.”). 25 In conclusion, Defendants bear a heavy burden to 26 establish that there is no triable issue of fact as to 27 substantial similarity. See Rentmeester v. Nike, Inc., 28 883 F.3d 1111, 1127 (9th Cir. 2018)(“[Substantial 1 similarity] is an inherently factual question which is 2 often reserved for the jury[.]”). Because a comparison 3 of the Subject Design and the Accused Designs reveals 4 several objective similarities and differences, the 5 Court cannot conclude as a matter of law that the works 6 are not substantially similar. Thus, the Court DENIES 7 Defendants’ Motion.4 8 III. CONCLUSION 9 Based on the foregoing, the Court DENIES 10 Defendants’ Motion for Summary Judgment 11 12 IT IS SO ORDERED. 13 14 DATED: August 20, 2019 s/ RONALD S.W. LEW

HONORABLE RONALD S.W. LEW

15 Senior U.S. District Judge 16 17 18 19 20 21 22 23 24 25 4 Plaintiff devotes much of its Opposition to arguing that the works are strikingly similar. However, Defendants only 26 brought the Motion on the basis that the works lack substantial similarity. Because the Court finds a triable issue of fact as 27 to substantial similarity, Defendants’ Motion is denied and the Court need not decide whether the designs’ similarities rise to 28 the level of striking similarity.