H&M revives copyright suit with SCOTUS petition
H&M has asked the US Supreme Court ( SCOTUS) to overturn an “absurd” ruling in a copyright suit between the retailer and a textile company, warning that the decision “dramatically” expands the scope of acceptable infringement pleading.
In a petition for certiorari at SCOTUS, published September 4, H&M said the US Court of Appeals for the Ninth Circuit was wrong side with Malibu Textiles in a dispute over floral lace designs, adding that the ruling contradicted SCOTUS precedent.
The case dates to February 2014, when Malibu Textiles filed a copyright complaint against H&M, alleging that a product sold by H&M infringed one of its flower patterns.
H&M said that no documented copyright registration, materials or any evidence to suggest that it had access to Malibu’s flower pattern was submitted.
In June that year, the district court dismissed the suit, finding that Malibu had failed to allege any protectable elements that are substantially similar between Malibu’s flower pattern and the product sold by H&M.
In July, Malibu filed an appeal with the Ninth Circuit but in September 2016, the court dismissed the appeal. It said Malibu had failed to “allege facts plausibly showing that H&M copied the protected elements in Malibu’s work”.
Additionally, the court said Malibu could “satisfy this element by showing either that the two works in question are strikingly similar, or by showing that they are substantially similar and that H&M had access to its work”.
In February 2017, Malibu filed an amended complaint which after being dismissed again by the district court, was again, appealed to the Ninth Circuit.
This time, the Ninth Circuit held that Malibu had sufficiently alleged copyright ownership, “despite Malibu’s failure to provide any registration or deposit materials, and despite material changes to its story as to how and if the flower pattern was registered,” H&M said in its latest petition.
It said its 2019 decision was inconsistent with the 2016 orders, when it instructed Malibu to plead fact-based, substantive and plausible access allegations.
“In direct contravention of its 2016 order, the Ninth Circuit next held that Malibu had demonstrated striking similarity between the flower pattern and the H&M v-neck, despite having found no such similarity with respect to the exact same patterns in 2016,” H&M alleged.
When the case was first heard by the Ninth Circuit in 2016, the court held that an accuser, in this case Malibu, should be able to show that an infringer, in this case H&M, had access to a copyright-protected article through widespread dissemination through its sales records.
“But now, the Ninth Circuit believes that even this is too great a burden for copyright plaintiffs to bear.
“If this new standard remains, the courts of the Ninth Circuit (and undoubtedly others) will be flooded with complaints based only on insufficient, self-serving, and conclusory striking similarity allegations such as those offered by Malibu here,” H&M said.
Additionally, it said the court’s ruling had established a broad loophole, which would allow plaintiffs to ignore the access requirement entirely.
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