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The Great Eros Called Out WeWoreWhat, Brand Fires Back With Lawsuit [Updated]

Danielle Bernstein's label wants a judge to declare that it did not infringe on The Great Eros's copyright.
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Danielle Bernstein NYFW February 2020

Earlier this year, Danielle Bernstein of WeWoreWhat was accused of copying an independent brand (again). But this time, the story is developing differently — and she's the one filing a copyright lawsuit. Let us try to explain.

As part of an ongoing swimwear partnership with Onia, WeWoreWhat introduced a print featuring line-drawing silhouettes of bodies on a white background. After seeing it succeed in that category, it launched additional products with it, including peel-and-stick wallpaper, scarves and activewear. 

However, some remarked on how that artwork looked like one that's been used by Brooklyn-based intimates brand The Great Eros since its inception, on the tissue paper in which it wraps its pieces. The brand and its founder, Christina Viviani, received many messages from fans pointing out the similarities.

Left: WeWoreWhat, Right: The Great Eros

Left: WeWoreWhat, Right: The Great Eros

According to a lawsuit filed in New York on Thursday, The Great Eros called out WeWoreWhat privately, and went so far as to send a cease-and-desist letter to Bernstein's brand on Aug. 10, accusing it of "committing copyright infringement and engag[ing] in unfair competition" by using the print on products. 

The lawsuit in question, however, was not filed by The Great Eros: It was filed by WeWoreWhat, LLC and Onia, LLC against The Great Eros. 

Basically, WeWoreWhat and Onia want for the court to declare formally that they didn't copy anyone. Officially, they are seeking "a declaratory judgement that Plaintiffs' use of their WWW Silhouettes Design does not infringe or otherwise violate Defendant's purported copyright or any other rights under the Lanham Act or common law."

In the filing, WeWoreWhat argues that its design was independently created and "inspired by the generally ubiquitous concept of silhouette drawings of the human form along with a number of Henri Matisse’s line drawings."

"No one, including Defendant, owns the concept of silhouettes of the human form," the filing reads. The plaintiffs also say they investigated the design process of the print and found that no one associated with WeWoreWhat ever purchased or received product from The Great Eros wrapped in the aforementioned tissue paper. Additionally, the filing points to minor differences in the two designs, like that WeWoreWhat's print includes heads while The Great Eros's does not, and that there are differences in the ways the bodies are posed. 

In its coverage of the case, The Fashion Law offers some insight into how these claims might be viewed legally:

In accordance with copyright law, when the amount of creativity or originality in a work is low, including because there are only so many ways to depict a certain thing, such as a silhouette of the human body, the level of copyright protection afforded to the copyright holder is deemed to be "thin." As a result, while protection exists, infringement claims are generally limited to literal copying, or instances in which the infringing work is "virtually identical" to the copyright holder's work

The filing also alleges that on Oct. 13, The Great Eros sent WeWoreWhat a draft of a legal complaint "alleging copyright infringement and claims for unfair competition under the Lanham Act and states law claims regarding unfair business practices" that the former was threatening to file in court — meaning: WeWoreWhat and Onia filed its suit two days later, seemingly in order to beat The Great Eros to the punch.

Fashionista has obtained a copy of that complaint, which includes information not found in WeWoreWhat's filing, like that Bernstein has in fact visited The Great Eros's showroom prior to producing the alleged infringing product and even "inquired about obtaining Plaintiff's products in exchange for promoting The Great Eros through her social media channels." (The Great Eros declined.) Also, on Oct. 13, the same day the complaint draft was sent to WeWoreWhat, The Great Eros registered its design with the copyright office.

The complaint also highlights the significance of the design to The Great Eros's business, describing the print as part of its "brand identity" and a "source identifier," such that WeWoreWhat's use of the similar print could cause consumers to mistakenly associate its products with The Great Eros.

The complaint contends that by continuing to sell the alleged infringing products, WeWoreWhat will cause The Great Eros to "continue to suffer substantial damage to Plaintiff's business in the form of diversion of trade, loss of profits and a diminishment in the value of Plaintiff’s goods and reputation." 

"Goods of low quality or 'fast-fashion' appeal, if associated with Plaintiff, could damage its reputation," it also notes. The complaint contends that WeWoreWhat should be liable for those damages as well as "any profits of Defendants directly or indirectly attributable to such infringement." It was also seeking to have all infringing products removed from the marketplace. It cites the Lanham Act, the federal statute that governs trademarks, service marks, and unfair competition; as well as California Common Law, which prohibits false advertising and illegal business practices, as existing legislation that supports its claims.

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While that exact complaint was never filed, The Great Eros will still be putting up a fight. 

"Ms. Bernstein's improper lawsuit will be dismissed, and The Great Eros will continue to protect and enforce their rights to the fullest extent," the brand's lawyer, Jeff Gluck, told Fashionista in a statement. 

Gluck also shared a long list of close, if not exact, similarities between the two designs, including coloring (black drawing on nude or white background), weight of line stroke, scale of each drawing, rotation of each drawing, amount of negative space, and identical length and width of just about every body part seen.

The Great Eros responded to the lawsuit on its Instagram stories on Friday. 

"Over the past 4 years we have been working our asses off as a small brand to make all of you feel good and create things with integrity, using sustainable practices we know make people feel confident in their own skin and items all of you can cherish for years to come," it wrote. "At this moment, it's all being stripped away because Danielle is taking us for everything we own over a design that she allegedly stole from us and is now suing us to bully us into submission." 

"We will gladly be the brand to set the precedent and fight back against you and your oppression until the moment you try and close our doors, even if we have to spend every penny we have in court for years to come. We will be relentless in our pursuit for justice against you," it continued. "Know you didn't just sue us with this lawsuit, you sued every small independent designer, business owner and artist, and thanks to you, we are finally now united against you." 

In a "P.S.," the brand also called out Onia and Macy's for being "complicit" and concluded "@onia your future orders will be blocked. @weworewhat stop asking us for free product."

This is certainly not the first time Bernstein has come under fire for her products (though it is the first time things have gone as far as a lawsuit). There was her 2018 jewelry collaboration with Lulu DK, which resembled pieces from Foundrae, Retrouvai and Bondeye, and ended up getting pulled from Nordstrom. She was under the Diet Prada spotlight again this summer amid accusations she copied a mask design from By Second Wind — after asking the brand to gift her the mask in question. (Bernstein later claimed she began producing her masks before being introduced to By Second Wind, adding: "A chain on a mask is not an original concept and I've never claimed for that to be my own.") There was also this weird drama between Bernstein and a Poshmark seller who had somehow gotten her hands on the exact silhouette-print WeWoreWhat X Onia swimsuits in question before they'd been released.

Suffice it to say, Bernstein is no stranger to controversy. 

A rep for WeWoreWhat x Onia did not immediately respond to our request for comment. We'll continue updating this story as more information becomes available.

Update, Wednesday, Nov. 11:

On Wednesday, The Great Eros filed a copyright infringement lawsuit of its own against Bernstein and her company WeWoreWhat LLC. Other defendants include Onia LLC, Saks Fifth Avenue, Shopbop and Carbon 38, each of which have sold the alleged infringing items that bear the print in question.

The complaint, filed in the Central District of California, details Bernstein's prior "history of copying others' designs and passing them off as her own," and reveals that Bernstein had visited The Great Eros's showroom and "inquired about obtaining Plaintiff’s products in exchange for promoting The Great Eros through her social media channels." The Great Eros denied the request, according to the complaint, because of Bernstein's "reputation for infringement." (Even so, Bernstein claimed that she, nor anyone at WeWoreWhat, had heard of The Great Eros or purchased the brand's goods.)

In addition to copyright infringement claims, The Great Eros is bringing forth trademark claims, describing the graphic, called "CV Design," as "a source identifier and signature of" the brand. The complaint alleges that consumers could mistakenly believe the WeWoreWhat products are associated with The Great Eros, and that such confusion would damage the latter's reputation, due to the products' "low quality." It also accuses the defendants of unfair business practices.

The Great Eros says it is entitled to preliminary and permanent injunctions prohibiting the defendants from continuing to produce and sell the items in question, as well as all funds obtained via those items, punitive damages and attorneys' fees and expenses. It also asks for a judgement that the defendants "have engaged in unlawful, unfair and/or fraudulent business practices and unfair competition."

The Great Eros has also been granted successful registration of its design with the U.S. Copyright Office, according to its lawyer Jeff Gluck.

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