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H&M Gets a Win against Unicolor’s Copyright Infringement Suit

Writer's picture: Ricky SinghRicky Singh

Left: Unicolor's copyrighted Design (EH101). Right: H&M's garment containing the similar design.

The Ninth Circuit on Friday reversed a district court’s award of damages and attorneys’ fees in favor of Unicolors against H&M in a copyright infringement action due to questions regarding Unicolor’s copyright's registrability.

Unicolor is a company that creates designs for use on textiles and garments and H&M is a clothing retailer. Unicolor had sued H&M for copyright infringement for allegedly copying a design that it created in 2011, which was found to be very similar to garments that H&M began selling in 2015. Specifically, in 2011 Unicolors applied and received a copyright registration for a piece of art work called EH101, which was part of the registration No. VA 1-770-400 (“the ’400 Registration”). The ‘400 registration is a “single-unit registration” of thirty-one separate designs in a single registration.

After the district court found that H&M infringed on the design and awarded damages and attorney fees, H&M file an appealed by stating that the ‘400 registration contained a number of inaccuracies that made it invalid and, thus, invalid for the district court's awards.

In particular, H&M noted that Unicolors used a single copyright registration to register thirty-one separate works, one of which was EH101. But to register a collection of works as a “single unit” as Unicolors did, H&M maintained that the works must have been first sold or offered for sale in some integrated manner. And because the undisputed evidence adduced at trial showed that Unicolors included in the ’400 Registration at least nine confined works that were sold separately and exclusively to individual customers, H&M argued that the collection of works identified in the ’400 Registration were not first sold together and at the same time. In turn, H&M contended the district court should find the ’400 Registration invalid and enter judgment in favor of H&M.

The Ninth Circuit agreed with H&M and found that the inaccurate application is crucial to the case as a valid registration is required to bring a copyright infringement action. The Ninth Circuit sent the case back to the district court and directed the judge to refer to the Register of Copyrights as to whether the copyright is valid given the inaccuracies it contains. Additionally, the court held that district court was wrong to rule that Unicolor’s copyright could only be invalid if there was an intent to defraud the Copyright Office. The Ninth Circuit pointed to the appeals court's recent ruling in Gold Value International Textile Inc. v. Sanctuary Clothing LLC et al., where it had previously determined that there is no intent-to-defraud requirement in copyright law.

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