Case 1:13-cv-01502-RRM-JMA Document 1 Filed 03/21/13 Page 1 of 14 PageID #: 1

UNITED STATES DISTRICT COURT

EASTERN DISTRICT OF NEW YORK
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Smashing Starlets LLC and Haleh Nematzadeh,
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Plaintiffs,
-against- Complaint and Jury Demand
Opening Ceremony, LLC, Yoko Ono, John J
Does 1-10, )(YZ Corporations 1-10. KUv , .
Defendants.
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Smashing Starlets LLC and Haleh Nematzadeh (collectively referred to '''Plain-
tiff') by and through Plaintiffs attorneys, The Aboushi Law Firm, PLLC, and for Plaintiffs
causes of action against the above-named Defendants, states as follows:
INTRODUCTION
This case is about a Yoko Ono and multi-million dollar fashion company who to-
gether stole the designs of an up and coming designer and pawned them otT as their own. It
involves the theft by the Defendants of the Plaintiff's unique and cutting edge clothing
designs. The Defendants willfully and intentionally copied all of the Plaintiff's designs
and presented them as their own collection issued by the Defendants. Defendants' tortious
and illegal conduct allowed them to reap millions of dollars in sales, good will, and pub-
licity.
JURISDICTION AND VENUE
I. This is an action for copyright infringement arising under the Copyright Act of
1976, 17 U.S.C.A. I 01 et seq. (the "Copyright Act") and other related causes of
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action.
2. This court has exclusive jurisdiction over this action pursuant to 28 U.S.C.A.
1338(a) and original jurisdiction under 28 U.S.C.A. 1331.
3. This court also has jurisdiction pursuant to 28 U.S.C.A. 1338(b ), and under its
supplemental jurisdiction over pendent claims.
4. Venue is proper pursuant to 28 U.S.C.A. 1391 and 1400.
PARTIES
5. Plaintiff, Smashing Starlets LLC is a limited-liability company, with its principal
place ofbusiness in Brooklyn, New York.
6. Plaintiff Haleh Nematzadeh is an up and coming designer who resides in Brooklyn,
New York.
7. Defendant Opening Ceremony ("OC'), upon information and belief, is a California
Corporation with its principal place of business in New York, NY that generates
millions of dollars per year in retail sales.
8. Defendant Yoko Ono ("Ono") upon information and belief, is a resident ofNew
York, NY.
9. John and Jane Does 1-10 represents Defendants whose identity is not yet known to
the Plaintiffs.
I 0. XYZ Corporations I- I 0 represents Defendant corporations whose identity is not yet
known to the Plaintiffs.
11. Defendants Opening Ceremony and Ono are collectively referred to in this Com-
plaint as "Defendants."
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BACKGROUND AND FACTUAL ALLEGATIONS APPLICABLE TO ALL CAUSES
OF ACTION
12. Plaintiff is engaged in the business of creating, composing, producing, distributing,
publishing and marketing unique designs applied to clothing and accessories.
13. Plaintiff is the copyright proprietor of a unique clothing collection named "Gonna
Walk the Night" (herein referred to as the "Collection") and an application has been
filed with, and was registered by, the United States Copyright Office under regis-
tration number VA0001849755.
14. Plaintiff's Collection was created by Plaintiffs' own skill, labor and judgment, and is
copyrightable subject matter under the laws of the United States.
15. Plaintiff was introduced to photographers working for OCto do a photo shoot of the
Collection in July 2012.
16. The intention was to photograph Plaintiffs Collection so that it may be featured for
sale in OC's catalog and stores worldwide.
17. Plaintiff agreed to show the sketches and pictures of the Collection to OC's pho-
tographers. Moreover, Plaintiff shared her vision, intention, ideas, and inspiration
with OC's photographers.
18. After the OC photographers saw Plaintitrs sketches and pictures, they cancelled the
photo shoot.
19. Plaintiff attempted to reschedule the photo shoot but OC's photographers refused to
do so, stating that they had other projects to work on.
20. Plaintiff nonetheless had another photographer shoot the Collection.
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21. Plaintiff published the Collection on or about October 2012. Defendant knew that
Plaintiff published her collection.
22. The Collection contains a series of clothing designs that were worn by women.
23. Soon after the Plaintiff launched the Collection, within which her designs were
published, the Defendants published an identical collection ("Offending Collec-
tion"). The offending collection copied exact designs as well as imitated the de-
signs and concepts from Plaintiff's Collection. The Defendants did not have
Plaintiff's permission to copy, replicate, or reproduce the Collection.
24. The offending collection was offered for sale in New York and worldwide, and was
purchased by many consumers in New York.
25.1n order to conceal their thievery ofPlaintift"s Collection, Defendants renamed the
collection and called it a collection for men.
26. Despite Defendants' feeble attempt at disguising the unlawful use ofPlaintift"s
Collection, it is clear that Defendants' copied Plaintiff's design.
27. One piece ofthe Collection, for example, is a bra like design.
28. Defendants copied this design and used a male to model it.
29. The ridiculousness of this farce stands on its face.
30. It is the same design as Plaintiffs bra design but used on a male.
31. What is more, Defendant Ono admitted that the designs used by the Defendants
were novel territory because while the offending collection was allegedly geared for
men, this was the first time Ono has ever designed clothing for men.
32. Indeed, the offending collection was nothing more than a rip off of Plaintiff's
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Collection.
33. Defendants tried to cover up the theft by the offending collection a "mens" collec-
tion and utilizing males to model the clothing.
34. Defendants represented to consumers, the public, and the media that they created
the designs on the clothing.
35. In fact, the designs were that of the Plaintiff.
36. Defendants' theft ofPlaintiff's design has caused them to reap millions of dollars in
sales, publicity, and notoriety.
37. The fashion industry heralded the Defendants' offending collection as cutting edge,
brilliant, and genius.
38. The offending collection, however, was Plaintiff's Collection.
39. In no uncertain terms, Defendants copied Plaintiffs design.
40. Upon information and belief, the scheduled photo shoot with OC's photographers
was nothing more than a ruse to gain access to Plaintiff's confidential and propriety
designs and sketches.
41. Once OC's photographers gained access, they usurped the designs and sketches for
the unlawful benefit of Defendants.
42. After the launch of the offending collection, Defendant Ono even posed for pictures
showing her sketching the designs.
43. Defendant Ono full well knew the photo opportunity was a sham as she did not
design the offending collection and full well knew Plaintiff designed and created it.
44. When the Defendants launched the offending collection, Defendant OC boasted:
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"In 1969, YOKO ONO presented John Lennon with a series of sketches as a wedding gift.
The illustrations were designs for clothing and accessories intended to celebrate John's "hot
bod." As ONO explains, "I was inspired to create 'Fashion for Men,' [because I was]
amazed at how my man was looking so great. I felt it was a pity if we could not make
clothes emphasizing his very sexy bod." This season, 48 years after John and ONO's
wedding, ONO and Opening Ceremony have worked together to bring her sketches to
1 ife!" http://www. openingceremony. us/entry. asp?pid=6993
45. Defendants full well knew that the foregoing statement was completely false and
that the designs were created by and belong to, the Plaintiff.
46. The above-described unauthorized actions is an act of copyright infringement, in
violation of the Copyright Act, as amended, including, but not limited to, 17
U.S.C.A. 106, and is therefore unlawful.
47. Moreover, each such unauthorized action was committed willfully.
48. The above-described actions ofDetendants have served to usurp Plaintiffs exclu-
sive right to determine whether, when, and under what terms the Collection would
be used for commercial purposes.
49.1n addition, the unlawful actions of Defendants have materially diminished the fu-
ture value of the Collection should Plaintiff wish to make it available for future
commercial opportunities.
50. Defendants' actions caused the Plaintiff to miss an entire season of commercial
viability for her Collection.
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COUNT I. FEDERAL COPYRIGHT INFRINGEMENT (17 U.S.C.A. 101 et seq.)
51. Plaintiff incorporates by reference all paragraphs of this Complaint as if fully re-
alleged and restated here in this Complaint.
52. Plaintiff is the lawful and sole proprietor of the copyright to the Collection.
53. Defendants have not been granted a license to reproduce, distribute, publicly per-
form, or in any way use, compile, or exploit the Collection by Plaintiff.
54. As alleged above, Defendants have had access to, and have illegally copied sub-
stantial parts, if not all of, the Collection.
55. Defendants have distributed, reproduced, publicly usurped, made available, and
placed into the stream of commerce illegal copies of the Collection and its designs.
56. Plaintiff is entitled to an injunction restraining Defendants, their agents and em-
ployees and all persons acting in concert with them, from engaging in any further
acts in violation of the copyright laws and infringements of Plaintiffs rights under
the copyright laws.
57. Defendants' direct and willful acts of infringement have and will cause irreparable
harm to unless such conduct is preliminarily and permanently enjoined, since the
reproduction and distribution of the Collection has a special and unique value in the
fashion industry.
58. Plaintiff is further entitled to recover from Defendants the damages, including at-
torney's tees, sustained and that will be sustained, and any gains, profits, and ad-
vantages obtained by Defendants as a result of Defendants' acts of infringement
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alleged above.
59. At present, the amount of such damages, gains, profits, and advantages cannot be
fully ascertained by Plaintiff, but are reasonably believed to exceed $10,000,000.
60. Plaintiff has no adequate remedy at law for Defendants' wrongful conduct for the
reason that: (a) plaintiff's copyrights are unique and valuable property that have no
readily determinable market value; (b) the infringement by Defendants constitutes
an interference with Plaintiff's good will and contractual relationships; and (c)
Defendants' wrongful conduct, and the damages resulting to plaintiff from such
wrongful conduct, is continuing. Defendants' acts of copyright infringement have
caused Plaintiff irreparable injury and Defendants have the ability to continue to
commit these acts.
61. Accordingly, Plaintiff' is entitled to damages as well as to injunctive relief pursuant
to 17 U.S.CA 502, and to an order under 17 U.S.C.A. 503 that the infringing
products be impounded.
COUNT IL UNFAIR COMPETITION
62. Plaintiff incorporates by reference all paragraphs of this Complaint as if fully re-
alleged and restated here in this Complaint
63. Defendants' wrongful acts of unfair competition consist of utilizing the Collection
for the specific purpose of creating the false impression that Plaintiff has endorsed
Defendant's collection.
64. Defendants, by imitation or unfair device, have induced the general public to be-
lieve that they had the right to distribute and use the Collection and/or that Plaintiff
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commercially endorse their products.
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65. Defendants have received and obtained substantial gains, profits, advantages, and
benefits that Plaintiff rightfully deserves, by reason of their wrongful acts of unfair
competition.
66. Defendants, by way of their wrongful acts of unfair competition, have appropriated
to themselves the value of the reputation that Plaintiff has acquired by way of their
creation, production, and publication of the Collection.
67. A natural, probable, and foreseeable consequence of the Defendants' wrongful acts
of unfair competition resulted in substantial deception to the general public.
68. Defendants' wrongful acts constitute unfair competition under the laws of New
York.
69. Plaintiff is entitled to recover from Defendants the monetary damages suffered by
Plaintiff as a result of Defendants' wrongful acts of unfair competition.
70. Plaintiff is further entitled to recover from Defendants the gains, profits, ad-
vantages, and benefits Defendants have received and obtained as a result of the
unfair acts of unfair competition.
71. Defendants have acted intentionally, recklessly, willfully, and in bad faith, and
plaintiff is therefore entitled to exemplary damages because of Defendants'
wrongful acts of unfair competition.
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COUNT III. UNJUST ENRICHMENT
72. Plaintiff incorporates by reference all paragraphs of this Complaint as if fully re-
alleged and restated here in this Complaint.
73. Defendants have received and obtained substantial gains, advantages, and benefits
by creating the false impression that Plaintiff has endorsed Defendant's offending
collection.
74. Moreover, Defendants reaped the benefits of Plaintiffs toil in creating the Collec-
tion.
75. It is inequitable and unjust for the Defendants to retain those gains, advantages, and
benefits.
76. Defendants have enriched themselves at the expense and to the detriment of Plain-
tifT.
77. To the extent Defendants inferred a false endorsement of their goods and services
by Plaintiff, Plaintiff has conferred a benefit on Defendants.
78. To the extent Defendants exploit Plaintiffs Collection as their own, Defendants
have retained such benefit without adequately compensating Plaintiff for the bene-
fit.
79. Defendants should not in equity and good conscience be permitted to retain the
benefit bestowed on them by Plaintiff
80. As a result of the retention of the benefit, Defendants have been unjustly enriched
and are jointly and severally liable to Plaintiff
81 . As a result of the unjust enrichment of Defendants, Plaintiff has incurred damages
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in an amount to be determined at trial, plus applicable interest, attorney's fees, and
costs.
82. Plaintiff is entitled to receive and obtain from the Defendants the reasonable value
of an endorsement by Plaintiff.
Count IV-Violation of New York GBL Section 349
83. Plaintiff incorporates by reference all paragraphs of this Complaint as if fully re-
alleged and restated here in this Complaint.
84. Defendants falsely claimed to residents of the State ofNew York, and the World, in
an incalculable number of articles and press events that John Lennon inspired the
offending collection.
85. This misrepresentation had the sole purpose of deceiving the public into thinking
that Plaintiff's Collection belonged to Yoko Ono, and was inspired by Jon Lennon.
86. The Defendants' goal in their misrepresentation was to deceive the public into
buying the offending collection.
87. Because of these and other misrepresentations discussed in the Complaint, the
Defendants cheated New York consumers into buying the fraud that is the offending
collection.
88. Such deceptive practices were calculated, premeditated, and aimed at deceiving the
public as a whole simply to enrich the Defendants.
89. Indeed, the lore of John Lennon, and any product associated with him, has always
inspired voracious commercial activity when it otherwise would not exist.
90. Defendants created a market for the offending collection by falsely associating it
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with John Lennon.
91. The materially misleading association with John Lennon enriched the defendants
millions of dollars at the expense of the unsuspecting public.
92. Plaintiff and the Public were harmed by fraud perpetrated by the Defendants.
93. Amongst other things, Plaintiff had her Collection counterfeited and the public was
duped out of their money.
94. Moreover, the public is deprived from the opportunity to make an informed and free
will based decision on whether or not they would purchase the offending collection
absent the false connection to John Lennon.
95. Consumers no doubt relied on these misrepresentations in purchasing the offending
collection.
Count V-Violation of New York GBL Section 350
96. Plaintiff incorporates by reference all paragraphs of this Complaint as if fully re-
alleged and restated here in this Complaint.
REQUEST FOR RELIEF
WHEREFORE, Plaintiff respectfully requests that this court enter a final judgment in
Plaintiffs favor and against the Defendants, jointly and severally, as follows:
1. The court find that Defendants have infringed on Plaintiffs copyright in the Com-
position;
2. Defendants, their agents, employees, and all other persons in active concert or privity
or in participation with them, be enjoined from directly or indirectly infringing Plain-
tift's copyright in the Collection or from continuing to market, offer, sell, dispose of,
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license, lease, transfer, display, advertise, reproduce, develop, or manufacture any
works derived, copied, and/or sampled from the Collection, in whatever medium, or to
participate or assist in any such activity;
3. This court order Defendants, and all their representatives, agents, servants, em-
ployees, officers, directors, partners, attorneys, subsidiaries, and all persons under their
control or acting in active concert or participation with them, to immediately post a
notice on the Web site of each Defendant stating that the prior use of the Collection was
unauthorized and illegal;
4. This court order that Defendants, their affiliates and licensees, immediately cease
and desist from any further recording, reproduction, distribution, transmission, or other
use of the Collection;
5. Defendants be enjoined and ordered to deliver on oath, to be impounded during the
pendency ofthis action and destroyed pursuant to judgment in this action, all originals,
copies, or duplicates of any work shown by the evidence to infringe any copyright in
the Collection;
6. Judgment be entered for Plaintiff and against Defendants for Plaintiff's actual
damages and for any profits attributable to infringements of Plaintiff's copyright in the
Collection, pursuant to the Copyright Act of 1976, 17 U.S.C.A. 101 et seq.;
7. Judgment be entered for Plaintiff and against Defendants for statutory damages
based on Defendants' acts of infringement, pursuant to the Copyright Act of 1976, 17
U.S.C.A. 101 et seq., including 17 U.S.C.A. 504(8) and/or (C)(l) and (2), an
election to be made during the pendency of this action;
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8. Judgment be entered for Plaintiff and against Defendants for Plaintiff's actual
damages and for any profits attributable to infringements of Plaintiffs rights, including
attorney's fees and costs of suit;
9. All gains, profits, and advantages derived by Defendants from their acts of in-
fringement and other violations of law be deemed to be held in constructive trust for the
benefit of Plaintiff;
I 0. Defendants be ordered to furnish to Plaintiff a complete and accurate accounting of
all profits earned in connection with their use of the offending collection; and
II. The court grant such other, further, and different relief as the court deems just,
proper, and equitable under the circumstances.
Dated: March 20,2013 The Aboushi Law Firm
s/Aymen A Aboushi,
Aymen A Aboushi, Esq.
EDNY Bar ID: AA5804
1441 Broadway, 5
1
h Floor
New York, NY 10018
Tel: 646-569-5544
Fax: 646-417-7191
Email: Aymen@Aboushi.com
www.Aboushi.com