-1- Complaint

1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

FARHAD NOVIAN (SBN 118129)
JOSEPH A. LOPEZ (SBN 268511)
NOVIAN & NOVIAN, LLP
1801 Century Park East, Suite 1201
Los Angeles, California 90067
Telephone: (310) 553-1222
Facsimile: (310) 553-0222
[email protected]
[email protected]

Attorney for Plaintiff,
BEN KWOK


UNITED STATES DISTRICT COURT
FOR THE CENTRAL DISTRICT OF CALIFORNIA

BEN KWOK, an individual

Plaintiff,
v.
ASOS PLC, a United Kingdom company,
organized under the laws of the United
Kingdom; NEW LOOK LIMITED, a
United Kingdom company, organized
under the laws of the United Kingdom;
NOVA OF LONDON LIMITED, a
United Kingdom company, organized
under the laws of the United Kingdom;
and DOES 1 through 10, inclusive,

Defendants.

Case No.:

COMPLAINT FOR:

1. Copyright infringement;
2. Vicarious and/or Contributory
Copyright Infringement;

JURY TRIAL DEMANDED


Case 2:14-cv-07623 Document 1 Filed 10/01/14 Page 1 of 9 Page ID #:1


-2- Complaint


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

Plaintiff, BEN KWOK, by and through its undersigned counsel, complaining
of the defendants ASOS PLC; NEW LOOK LIMITED; NOVA OF LONDON
LIMITED; and DOES 1 through 10, inclusive (collectively, Defendants),
respectfully alleges as follows:
NATURE OF THE ACTION
1. Plaintiff creates and obtains rights to unique two-dimensional non-
functional artworks for gallery display and use on textiles, which are transacted
primarily in and through the apparel industry. Plaintiff owns these designs in
exclusivity and exploits these designs for profit by selling products bearing the
designs or entering into licensing agreements for sale or display by third parties.
Defendants have knowingly and intentionally used one such design in the
production of unauthorized goods which infringe Plaintiffs copyrights.
JURISDICTION AND VENUE
2. The Court has original subject matter jurisdiction over Plaintiffs
federal claims arising under the Copyright Act of 1976, Title 17 U.S.C., 101 et
seq. under 28 U.S.C. 1331, 1338 (a) and (b).
3. This Court has personal jurisdiction over the Defendants because the
events or omissions giving rise to the claim occurred, the tortuous acts occurred,
and a substantial part of the injury took place and continues to take place, in this
judicial district and/or each of the defendants can be found in this judicial district.
4. Venue is proper in the United States District Court for the Central
District of California pursuant to 28 U.S.C 1391(b), 1391(c), and 1400(a) on
information and belief that: (a) this is a judicial district in which a substantial part
of the events giving rise to the claims occurred the tortuous acts occurred, and a
substantial part of the injury took place and continues to take place; and (b) this is
a judicial district in which Defendants may be found.
THE PARTIES
5. Plaintiff BEN KWOK (Plaintiff) is an individual residing in the
Case 2:14-cv-07623 Document 1 Filed 10/01/14 Page 2 of 9 Page ID #:2


-3- Complaint


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

County of Los Angeles, State of California.
6. Upon information and belief, defendant ASOS PLC (ASOS), is, and
at all times relevant was, a British company with its principal place of business in
London and is doing business within the jurisdiction of this Court.
7. Upon information and belief, defendant NEW LOOK, LIMITED
(New Look), is, and at all times relevant was, a British company with its
principal place of business in London and is doing business within the jurisdiction
of this Court.
8. Upon information and belief, defendant NOVA OF LONDON,
LIMITED (Nova), is, and at all times relevant was, a British company with its
principal place of business in London and is doing business within the jurisdiction
of this Court.
9. Defendants DOES 1 through 10 are individuals and/or entities whose
true names and capacities are presently unknown to Plaintiff. Plaintiff is informed
and believes, and thereon alleges, that, at all times herein mentioned, each of the
fictitiously named defendants was the agent, servant, and/or employee of his or her
co-defendants and, in doing the things herein mentioned, was acting within the
scope of his or her authority as such agent, servant, and/or employee, and with the
permission and consent of his or her co-defendants, and that each of said
fictitiously named defendants is, in some manner, liable or responsible to Plaintiff
based upon the facts hereinafter alleged and thereby proximately caused injuries
and damages to Plaintiff as more fully alleged herein. Accordingly, Plaintiff sues
said defendants by said fictitious names. At such time as said defendants' true
names and capacities become known to Plaintiff, Plaintiff will seek leave to amend
this Complaint to insert said true names and capacities of such individuals and/or
entities.
PLAINTIFFS COPYRIGHT
10. Plaintiff owns, and had owned prior to the infringing acts complained
Case 2:14-cv-07623 Document 1 Filed 10/01/14 Page 3 of 9 Page ID #:3


-4- Complaint


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

of herein, United States Copyright Registration No. VA 1-871-548, which included
a two-dimensional textile design it has internally designated as Ornate Elephant
(Design).
DEFENDANTS INFRINGING CONDUCT
11. Plaintiff is a renowned artist who regularly sells, licenses, or
otherwise exploits his artwork to art galleries and garment and accessories
manufacturers.
12. In or around July of 2013, Plaintiff discovered that the Defendants
were selling garments that bear designs that are identical or substantially similar to
Plaintiffs Design (Infringing Garments).
13. Upon information and belief, Defendants have misappropriated the
Design, and are selling Infringing Garments online and to retail stores throughout
the United States, including but not limited to within this judicial district.
14. Upon information and belief, Defendants are, without Plaintiffs
authorization, unlawfully reproducing, importing, distributing and/or selling
Infringing Garments in this judicial district that feature a design that is identical, or
substantially similar to, the Design.
15. Upon information and belief, Defendants infringing use of the Design
is not limited to the Infringing Garments described above, and other garments
Defendants created, manufactured, caused to be manufactured, imported,
distributed, and/or sold may infringe Plaintiff's copyright in the Design.
16. On or about July 18, 2013, Plaintiff, through its counsel, addressed a
letter to Defendant ASOS and Defendant New Look, informing them of the
Infringing Garments (the Cease and Desist Letter). Plaintiff demanded, among
other things, that Defendants immediately cease and desist from using, copying,
reproducing, distributing, displaying, ordering, purchasing, manufacturing,
offering for sale, or advertising the Design in any way. Plaintiff also demanded
that Defendants provide Plaintiffs counsel with a written accounting of each and
Case 2:14-cv-07623 Document 1 Filed 10/01/14 Page 4 of 9 Page ID #:4


-5- Complaint


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

every use of the Design by Defendants, or any person or entity working with or for
Defendants and to provide Plaintiffs counsel with the names, addresses, and
contact information for the manufacturers, stores, websites, and companies used by
Defendants in relation with the Design. Plaintiff further demanded that Defendants
provide Plaintiffs counsel with copies of all sales receipts, invoices, customer
records, accounting records, and inventories of and relating to the Design.
17. On or about July 24, 2013 Plaintiff received a reply from ASOS
identifying Defendant New Look as a fashion retailer that supplied ASOS with the
Infringing Garments. ASOS letter did not provide Plaintiff with the information
sought in the Cease and Desist Letter. To date, Plaintiff has not received any of the
information or documents requested in the Cease and Desist Letter.
18. On or about July 31, 2013 Plaintiff received a letter from New Look
identifying Defendant Nova
1
as the supplier from which New Look obtained the
Infringing Garments. New Looks letter did not provide Plaintiff with the
information sought in the Cease and Desist Letter. To date, Plaintiff has not
received any of the information or documents requested in the Cease and Desist
Letter.
19. On or about July 29, 2013 Plaintiff received an email from Paul Smart
(Smart) from an email address with the domain @qedlondon.co.uk. Smarts
email indicated that he wanted to discuss the printed t shirt with elephant
inspiration that was delivered by our company to new look in UK. Indeed, the
@qedlondon.co.uk. email address domain matched the contact email provided
by New Look to Plaintiff in their July 31, 2013 letter where they identified Nova as
their supplier. After further investigation, Plaintiff discovered that QED London is
a brand belonging to Defendant Nova.
20. After not hearing back from Smart or any QED London or Nova

1 New Looks letter actually identified Nouveau of London, Limited as the supplier, but the contact address and
email provided by New Look correspond to Nova of London, Limited.
Case 2:14-cv-07623 Document 1 Filed 10/01/14 Page 5 of 9 Page ID #:5


-6- Complaint


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

representative, Plaintiff sent Nova a Cease and Desist Letter on or about January
10, 2014. This Cease and Desist Letter contained similar demands as the Cease and
Desist Letter sent to Defendants ASOS and New Look.
21. Nova failed to reply to Plaintiffs Cease and Desist Letter.
Accordingly, on or about July 22, 2014 Plaintiff sent Nova and New Look a follow
up email reiterating the demands made in the various Cease and Desist Letters.
22. To date, Plaintiff has not received any of the information of
documents requested in the Cease and Desist Letter. Indeed, Plaintiff has not even
received a reply from Nova.
23. Upon information and belief, Defendants continue to misappropriate
the Design and to unlawfully reproduce, import, distribute, and/or sell Infringing
Garments, in this judicial district, featuring a design, which is identical, or
substantially similar to the Design.
FIRST CLAIM FOR RELIEF
(For Copyright Infringement - Against All Defendants)
24. Plaintiff repeats, reiterates and realleges each and every allegation
contained in paragraphs designated 1 through 23, inclusive, of this Complaint, as if
fully set forth herein at length.
25. Plaintiff is informed and believes and thereon alleges that Defendants,
and each of them, infringed Plaintiffs copyright by creating, making and/or
developing directly infringing and/or derivative works from the Design and by
producing, distributing and/or selling Infringing Garments.
26. Due to Defendants' acts of infringement, Plaintiff has suffered
substantial damages to his business in an amount to be established at trial.
27. Due to Defendants' acts of infringement, Plaintiff has suffered general
and special damages in an amount to be established at trial.
28. Due to Defendants' acts of copyright infringement as alleged herein,
Defendants, and each of them, have obtained direct and indirect profits they would
Case 2:14-cv-07623 Document 1 Filed 10/01/14 Page 6 of 9 Page ID #:6


-7- Complaint


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

not otherwise have realized but for their infringement of the Design. As such,
Plaintiff is entitled to disgorgement of Defendants profits directly and indirectly
attributable to Defendants infringement of the Design in an amount to be
established at trial.
29. Plaintiff is informed and believes and thereon alleges that Defendants,
and each of them, have imported, manufactured, cause to be manufactured and/or
sold Infringing Garments.
30. Upon information and belief, Defendants also began such activities
although they were fully aware of Plaintiffs superior rights to the Design.
Therefore, Defendants' acts of copyright infringement as alleged above were, and
continue to be, willful, intentional and malicious, subjecting Defendants, and each
of them, to liability for statutory damages under Section 504(c)(2) of the Copyright
Act in the sum of up to one hundred fifty thousand dollars ($150,000) per
infringement. Further, Defendants', and each of their willful and intentional
misappropriation and/or infringement of Plaintiff's copyrighted Design renders
Defendants, and each of them, liable for statutory damages as described herein.
Within the time permitted by law, Plaintiff will make his election between actual
damages and statutory damages. Plaintiff is also entitled to preliminary and
permanent injunctive relief.
SECOND CLAIM FOR RELIEF
(For Vicarious and/or Contributory Copyright Infringement
- Against All Defendants)
31. Plaintiff repeats, realleges and incorporates herein by reference as
though fully set forth the allegations contained in Paragraphs 1 through 23,
inclusive.
32. Plaintiff is informed and believes and thereon alleges that Defendants
knowingly induced, participated in, aided and abetted in and profited from the
illegal reproduction and/or subsequent sales of Infringing Garments featuring the
Design as alleged hereinabove.
Case 2:14-cv-07623 Document 1 Filed 10/01/14 Page 7 of 9 Page ID #:7


-8- Complaint


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

33. Plaintiff is informed and believes and thereon alleges that Defendants,
and each of them, are vicariously liable for the infringements alleged herein
because they had the right and ability to supervise the infringing conduct and
because they had a direct financial interest in the infringing conduct.
34. By reason of the Defendants', and each of their, acts of contributory
infringement as alleged above, Plaintiff has suffered and will continue to suffer
substantial damages to his business in an amount to be established at trial, as well
as additional general and special damages in an amount to be established at trial.
35. Due to Defendants' acts of copyright infringement as alleged herein,
Defendants, and each of them, have obtained direct and indirect profits they would
not otherwise have realized but for their infringement of the Designs. As such,
Plaintiff is entitled to disgorgement of Defendants' profits directly and indirectly
attributable to Defendants' infringement of the Design, in an amount to be
established at trial.
36. Plaintiff is informed and believes and thereon alleges that Defendants,
and each of them, have imported, manufactured, cause to be manufactured and/or
sold Infringing Garments.
37. Upon information and belief, Defendants also began such activities
although they were fully aware of Plaintiffs superior rights to the Design.
Therefore, Defendants' acts of copyright infringement as alleged above were, and
continue to be, willful, intentional and malicious, subjecting Defendants, and each
of them, to liability for statutory damages under Section 504(c)(2) of the Copyright
Act in the sum of up to one hundred fifty thousand dollars ($150,000) per
infringement. Further, Defendants', and each of their, willful and intentional
misappropriation and/or infringement of Plaintiff's copyrighted Design renders
Defendants, and each of them, liable for statutory damages as described herein.
Within the time permitted by law, Plaintiff will make his election between actual
damages and statutory damages. Plaintiff is also entitled to preliminary and
permanent injunctive relief.
Case 2:14-cv-07623 Document 1 Filed 10/01/14 Page 8 of 9 Page ID #:8


-9- Complaint


1
2
3
4
5
6
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
27
28

PRAYER FOR RELIEF
WHEREFORE, Plaintiff respectfully demands the following relief against
Defendants, jointly and severally:
Against All Defendants, With Respect to Each Claim for Relief:
a. That Defendants, their agents and servants be enjoined from selling
product, or otherwise, infringing Plaintiff's copyright;
b. That Plaintiff be awarded all profits of Defendants plus all losses of
Plaintiff, the exact sum to be proven at the time of trial, or, if elected before final
judgment, statutory damages as available under the Copyright Act, 17 U.S.C. 101
et seq.;
c. That Plaintiff be awarded his attorneys' fees as available under the
Copyright Act 17 U.S.C. 101 et seq.;
d. Directing such other relief as the Court may deem appropriate to
prevent the Defendants from participating in this or other copyright infringements;
and
e. Such other relief as the Court may deem appropriate.

Dated 10/1/2014 NOVIAN & NOVIAN, LLP
Attorneys at Law

By: /s/ Farhad Novian
FARHAD NOVIAN
JOSEPH A. LOPEZ
Attorneys for Plaintiff
BEN KWOK

Case 2:14-cv-07623 Document 1 Filed 10/01/14 Page 9 of 9 Page ID #:9