Case 2:18-cv-09453-MWF-AS Document 1 Filed 11/07/18 Page 1 of 10 Page ID #:1

1
2
3
4
5

Robert B. Owens, Esq. (Bar No. 77671)
rowens@ogrlaw.com
OWENS & GACH RAY
10323 Santa Monica Blvd., Suite #102
Los Angeles, CA 90025
Ph: (310) 553-6611
Fax: (310) 954-9191

6
7
8
9
10
11
12
13
14
15

Craig S. Hilliard, Esq.
chilliard@stark-stark.com
STARK & STARK, P.C.
993 Lenox Drive, Bldg. Two
Lawrenceville, NJ 08648
Ph: (609) 895-7346
Fax: (609) 895-7395
(PRO HAC VICE APPLICATION TO BE FILED)
Attorneys for Plaintiffs
Mon Cheri Bridals, LLC and
Maggie Sottero Designs, LLC

16
17

UNITED STATES DISTRICT COURT

18

CENTRAL DISTRICT OF CALIFORNIA

19
20

MON CHERI BRIDALS, LLC and
MAGGIE SOTTERO DESIGNS, LLC,

21

Plaintiffs,

22
23

vs.

24
25

CLOUDFLARE, INC., a Delaware
corporation; and DOES 1-10, Inclusive,

26
27
28

Defendants.

) Case No.
)
) COMPLAINT FOR CONTRIBUTORY
)
COPYRIGHT INFRINGEMENT
)
)
[Demand for Jury Trial]
)
)
)
)
)
)
)
)
1

COMPLAINT FOR CONTRIBUTORY COPYRIGHT INFRINGEMENT

 Case 2:18-cv-09453-MWF-AS Document 1 Filed 11/07/18 Page 2 of 10 Page ID #:2

1

Plaintiffs, Mon Cheri Bridals, LLC and Maggie Sottero Designs, LLC (collectively

2

“Plaintiffs”) as and for their Complaint against defendant, Cloudflare, Inc., and Does 1-10

3

inclusive, allege the following:
JURISDICTION AND VENUE

4
5

1.

This is an action seeking damages and equitable relief for contributory

6

copyright infringement. CloudFlare, Inc. is an Internet service provider which is liable for

7

the infringements committed by third-party content providers who have infringed, and are

8

continuing to infringe, the copyrights owned by Plaintiffs in certain images of dress

9

designs. CloudFlare’s liability arises from its failure to terminate the providing of its

10

content delivery services to customers it knows, or has reason to know, is using those

11

services to infringe on Plaintiffs’ copyrights. Plaintiffs have filed hundreds of “takedown

12

notices” with CloudFlare, consistent with the Digital Millenium Copyright Act (DMCA),

13

but CloudFlare has failed and/or refused to respond to those notices by terminating its

14

services to infringers. As such, CloudFlare is liable for the infringements committed by its

15

customers.

16
17
18
19

2.

The Court has jurisdiction over this action because it arises under the

Copyright Act, 28 U.S.C. § 1338(a).
3.

Venue is proper in this District because the Defendant may be found in this

District, 28 U.S.C. § 1400(a).
PARTIES

20
21

4.

Plaintiff, Mon Cheri Bridals, LLC (“Mon Cheri”) is a Delaware limited

22

liability company which maintains its principal place of business at 1018 Whitehead Road

23

Ext., Trenton, New Jersey 08638.

24

5.

Plaintiff, Maggie Sottero Designs, LLC (“Maggie Sottero”) is a Utah limited

25

liability company which maintains its principal place of business at 2300 South 1070 West,

26

Salt Lake City, Utah 84119.

27
28

6.

Cloudflare, Inc. (“Cloudflare”) is a Delaware corporation which provides a

variety of Internet services to clients, including provision of a “content delivery network”
2
COMPLAINT FOR CONTRIBUTORY COPYRIGHT INFRINGEMENT

 Case 2:18-cv-09453-MWF-AS Document 1 Filed 11/07/18 Page 3 of 10 Page ID #:3

1

that delivers services to hosts of internet websites, including the sites described in this

2

Complaint.

3

7.

Plaintiffs have no knowledge of the true names and capacities of the parties

4

sued as Doe Defendants 1-10, inclusive, and therefore sues them using fictitious names.

5

Plaintiffs will amend their Complaint to identify these Doe Defendants specifically if and

6

when their true names and capacities are ascertained.

7

8.

On information and belief, through their acts or omissions, Does 1-10 are

8

responsible, along with Cloudflare, for the injuries alleged, and therefore are liable for

9

them. On information and belief, at all times, Cloudflare and Does 1-10 were principals,

10

agents, and representatives of each other, or acting in concert with one another such that

11

the acts or omissions of any of them can be ascribed to the others.
BACKGROUND

12
13

9.

Plaintiffs are two of the largest manufacturers and wholesalers of wedding

14

dresses and social occasion wear in the United States. Through their own creative design

15

teams, Plaintiffs have developed many of the world’s most unique and original wedding

16

and social occasion dress patterns, and Plaintiffs own the copyrights in and to these

17

designs.

18

10.

Plaintiffs also own the copyrights in photographic images of those dress

19

designs. These copyrights are registered with the U.S. Copyright Office. A summary of the

20

registrations is attached hereto as Exhibit “A”.

21

11.

The photographic images of Plaintiffs’ dress designs are the lifeblood of

22

Plaintiffs’ advertising and marketing of their dress designs to the consuming public.

23

Plaintiffs invest hundreds of thousands of dollars each year in the development of

24

sophisticated marketing campaigns which involve the engagement of models and

25

photographers and the coordination of expensive photoshoots to capture the appropriate

26

“look” of the campaign for a particular line of dresses. Plaintiffs’ ability to market their

27

unique dress designs to consumers is driven largely by the images of their dresses which

28

appear on their websites and in other marketing materials.
3
COMPLAINT FOR CONTRIBUTORY COPYRIGHT INFRINGEMENT

 Case 2:18-cv-09453-MWF-AS Document 1 Filed 11/07/18 Page 4 of 10 Page ID #:4

1

12.

Plaintiffs, along with other members of the formalwear industry, are the

2

victims of a massive Internet scheme to advertise and sell products using the copyrighted

3

images of their dresses. These Internet websites, including ones serviced by Cloudflare

4

which are the subject of this Complaint, have manufactured, imported, distributed, offered

5

for sale and sold counterfeit goods, including bridal gowns, social occasion dresses, prom

6

dresses and other formalwear using copyrighted images of Plaintiffs’ dresses, they continue

7

to do so to this day.

8

13.

Counterfeiting is an illegal business that harms both consumers, who are

9

deceived into believing they are buying genuine goods when they are actually buying

10

counterfeits, as well as brand owners, who are deprived of sales and subject to a loss of

11

goodwill from these low-quality counterfeits bearing their marks. The Internet has made it

12

extraordinarily easy for counterfeiters to conceal that the goods they are selling are fake,

13

hide their true identities and operate under multiple false names and addresses from extra-

14

territorial locations in an attempt to avoid liability.

15

14.

The quality formalwear products made by Plaintiffs have been the focus of a

16

concerted, pervasive internet counterfeiting effort originating primarily in China, but

17

whose effects are felt here in the United States. These counterfeit websites target

18

consumers in the United States. Chinese merchants set up their websites to appear to be

19

authorized retailers of genuine formalwear products, even though Plaintiffs’ investigative

20

team has revealed that they are selling counterfeit products and that they are based

21

primarily in China.

22

15.

These 'rogue' websites are written in English, accept payment in US dollars

23

and allow payment by PayPal and/or major credit cards. The merchants often perpetuate the

24

illusion that these websites are operated by or under the authority of legitimate

25

manufacturers by using domain names incorporating the manufacturers’ trademarks and

26

copying their original and proprietary marketing images and designs directly from their

27

websites. These websites also use 1-800 numbers as contact information that are only

28

accessible from the United States.
4
COMPLAINT FOR CONTRIBUTORY COPYRIGHT INFRINGEMENT

 Case 2:18-cv-09453-MWF-AS Document 1 Filed 11/07/18 Page 5 of 10 Page ID #:5

1

16.

When the knockoff goods are shipped from China to the United States, they

2

are shipped as single packages and declared as “gifts” rather than commercial shipments,

3

and they pass through U.S. ports without paying a dime in customs duties. So while

4

legitimate businesses in the United States pay their taxes and customs duties on imported

5

goods, illegitimate merchants in China deceive U.S. citizens and cheat the government out

6

of customs duties.

7

17.

Consumers are being deceived, believing they are getting 'a good deal' on

8

genuine products rather than buying counterfeit goods. Plaintiffs and other companies in

9

the formalwear industry have received numerous complaints from consumers who reported

10

purchasing what they believed were genuine dresses on these types of authentic-looking

11

websites, only to receive counterfeit dresses of vastly inferior quality. While the China-

12

based websites all claim to be selling genuine products, nothing could be further from the

13

truth. Plaintiffs have purchased a number of dresses from these websites, and each one

14

received to date has been identified as counterfeit.

15

18.

Counterfeiters are notoriously difficult to stop. Even when a brand owner

16

challenges the sale of counterfeit goods by requesting that a particular Internet service

17

provider remove or suspend an infringing website, the counterfeiter loses no inventory,

18

retains all of its profits and simply moves that portion of its business to another website, or

19

moves the website to another web host or registrar. It is so simple and inexpensive for a

20

counterfeiter to set up a new domain and move its illegal business to a new site, that

21

conventional efforts to address the problem are ineffectual.

22

19.

Plaintiffs are also members of the American Bridal & Prom Industry

23

Association, Inc. (“ABPIA”). ABPIA is a not for profit corporation organized under New

24

Jersey law. ABPIA is organized exclusively as a business league or trade association for

25

the formalwear industry within the meaning of Section 501(c)(6) of the Internal Revenue

26

Code of 1986. The purposes of ABPIA are as follows:

27
28



to take any and all appropriate and lawful action against the marketing

and sale of counterfeit formalwear products;
5
COMPLAINT FOR CONTRIBUTORY COPYRIGHT INFRINGEMENT

 Case 2:18-cv-09453-MWF-AS Document 1 Filed 11/07/18 Page 6 of 10 Page ID #:6



1

to educate consumers, retailers and members of the formal industry and

2

the general public about the harm to consumers and fair competition in the formalwear

3

industry caused by the marketing and sale of counterfeit products;


4

to lobby governmental entities to aid the formalwear industry in the

5

fight against the marketing and sale of counterfeit products; and to conduct discussions

6

among members of the formalwear industry in the fight against the marketing and sale of

7

counterfeit products.
20.

8

In the last five years, ABPIA has successfully prosecuted claims against

9

hundreds of websites who use stolen images of the dresses made by Plaintiffs and others to

10

woo unsuspecting consumers into purchasing knockoff goods. ABPIA has secured default

11

judgments and permanent injunctive relief in the following actions, which relief included

12

the disabling of over 1,500 websites: American Bridal & Prom Industry Association v.

13

Moncherybridal.com et al, Civil Action No. 12-7079 (FLW)(LHG), American Bridal &

14

Prom Industry Association v. Affordablebridaldress.com et al, Civil Action No. 14-2311

15

(AET)(LHG), American Bridal & Prom Industry Association v. Weddingshoparizona.com

16

et al, Civil Action No. 13-4081 (FLW)(LHG), American Bridal & Prom Industry

17

Association v. Chiffondressstore.com et al, Civil Action No. 13-4347 (FLW)(LHG),

18

American Bridal & Prom Industry Association v. Weddingshopevansville.com et al, Civil

19

Action No. 13-5544 (FLW)(LHG), American Bridal & Prom Industry Association v.

20

Loversbridal.com et al, Civil Action No. 14-1570 (FLW)(LHG), American Bridal & Prom

21

Industry Association v. 2016dressforprom.com et al, Civil Action No. 16-8272

22

(AET)(LHG), American Bridal & Prom Industry Association v. Jollyprom.com et al, Civil

23

Action No. 17-2454 (AET)(LHG).
21.

24

Cloudflare contributes to, and thereby enables, the successful efforts of these

25

counterfeit websites to deceive the consuming public and violate the copyrights of

26

Plaintiffs and other members of the formalwear industry.

27

//////

28

//////
6
COMPLAINT FOR CONTRIBUTORY COPYRIGHT INFRINGEMENT

 Case 2:18-cv-09453-MWF-AS Document 1 Filed 11/07/18 Page 7 of 10 Page ID #:7

1

Cloudflare

2

22.

Cloudflare, according to www.cloudflare.com, is a “web performance and

3

security company.” Cloudflare says it offers: (1) a content delivery network (“CDN”); (2)

4

web content optimization; (3) website security; (4) DDoS (denial of service) protection;

5

and (5) a managed domain name system (DNS) network.

6

23.

Cloudflare further states on its website: “Once your website is a part of the

7

Cloudflare community, its web traffic is routed through our intelligent global network. We

8

automatically optimize the delivery of your web pages so your visitors get the fastest page

9

load times and best performance.

We also block threats and limit abusive bots and

10

crawlers from wasting your bandwidth and server resources.

11

powered websites see a significant improvement in performance and a decrease in spam

12

and other attacks.”

13

24.

The result: Cloudflare-

CloudFlare’s Terms of Service provides that it retains the right to investigate

14

its customers, their sites and “the materials comprising the sites” at any time. The Terms

15

further provide that any violation of law will justify termination of CloudFlare’s services.

16

“CloudFlare’s policy is to investigate violations of these Terms of Service and terminate

17

repeat infringers.”

18

25.

Cloudflare’s CDN is a service offered to website hosts and operators. The

19

service is designed to speed a consumer’s access to the website of Cloudflare’s client

20

through a series of data centers maintained by Cloudflare that cache mirror copies of that

21

site. In this manner, consumers seeking to access the website of a Cloudflare client can

22

retrieve the site from the closest Cloudflare data center rather than accessing the site from

23

the primary host. Cloudflare boasts that it maintains dozens of data centers around the

24

world that automatically cache static files of its clients so those files are stored closer to the

25

visitors of the client’s website, while still delivering dynamic content directly from the

26

client’s web server. CloudFlare then uses a technology called Anycast to route visitors to

27

the nearest data center. The result is that a website, on average, loads twice as fast for

28

visitors regardless of where they are located.
7
COMPLAINT FOR CONTRIBUTORY COPYRIGHT INFRINGEMENT

 Case 2:18-cv-09453-MWF-AS Document 1 Filed 11/07/18 Page 8 of 10 Page ID #:8

1

26.

Cloudflare’s service allows counterfeit sites and their hosts to conceal their

2

identity from copyright owners. When presented with a notice of infringement, Cloudflare

3

asserts that it is itself unable or unwilling to remove any infringing content, that it is merely

4

a “pass-through security service” and not a hosting provider, and that the copyright owner

5

must contact its customer to seek removal of the infringing content. In this fashion,

6

Cloudflare shields pirate sites and their hosts from legal recourse by copyright owners.

7

27.

Despite Cloudflare’s attempts to distance itself from any meaningful control

8

over the infringing content it knows, or has reason to know, resides on its customers’

9

websites, Cloudflare’s own website boasts the following:
a.

10

“Cloudflare caches your content across our global network, bringing it
closer to visitors from every region.” https://www.cloudflare.com/cdn/

11

b.

12

“A content delivery network (CDN) takes your static content and stores a

13

copy closer to your visitors.” https://www.cloudflare.com/website-

14

optimization/
c.

15

serve web pages and websites.” https://cloudflare.com/terms/

16
17

Cloudflare’s Service “is offered primarily as a platform to cache and

28.

Moreover, Cloudflare expressly reserves the right to modify its clients’

18

websites. Cloudflare’s Terms of Service give it the right to “modify certain components”

19

of a client’s website, including the addition of scripts, cookies and other changes to

20

enhance performance.

21

29.

Cloudflare touts the ease with which its clients can use its services, by telling

22

prospective customers that “Setting Up Cloudflare is Easy,” and it even offers a video

23

showing how a webmaster can place its site on the Cloudflare domain server with a few

24

points and clicks. https://cloudflare.com/. “Set up a domain in less than 5 minutes. Keep

25

your hosting provider. No code changes required.” Id. “Cloudflare makes more than

26

10,000,000 Internet properties faster and safer. Join today!” Id.

27
28

30.
benefit

Cloudflare further tells its clients that “[e]veryone’s Internet application can
from

using

Cloudflare.

Pick

a

plan

that

8
COMPLAINT FOR CONTRIBUTORY COPYRIGHT INFRINGEMENT

fits

your

needs.”

 Case 2:18-cv-09453-MWF-AS Document 1 Filed 11/07/18 Page 9 of 10 Page ID #:9

1

https://www.cloudflare.com/plans/

2

websites.” Id. Cloudflare touts a “Pro” plan, $20 per month per domain, for “professional

3

websites,” and a “Business” plan, $200 per month per domain, for “small eCommerce

4

websites and businesses requiring advanced security and performance…” Id.
31.

5

Cloudflare has a teaser “free” plan “[f]or personal

Plaintiffs’ authorized agent for infringement notifications, XML Shop LLC

6

d/b/a Counterfeit Technology, has sent thousands of proper DMCA takedown notices to

7

Cloudflare, alerting Cloudflare of the existence and location of Plaintiffs’ copyrighted

8

images on pirate sites that infringe upon Plaintiffs’ copyrights. A sample of those notices

9

is attached hereto as Exhibit “B”.
32.

10
11

action required by law in response to these notices.
33.

12
13

Cloudflare has ignored these notices and/or failed to take the appropriate
Cloudflare has persisted in offering CDN and related services to pirate

websites, notwithstanding these numerous notifications of infringement on such sites.
34.

14

In this fashion, Cloudflare has induced, contributed to, profited from, and

15

aided and abetted multiple infringements of Plaintiffs’ copyrights, failing and refusing all

16

along to implement or enforce a repeat infringer policy, and is thus liable for the

17

infringements alleged herein.

18

FIRST CLAIM FOR RELIEF – AGAINST ALL DEFENDANTS

19

CONTRIBUTORY COPYRIGHT INFRINGEMENT
35.

20
21

Plaintiffs repeat and incorporate the prior allegations in this Complaint as if

repeated verbatim herein.
36.

22

Cloudflare, and Does 1-10, have, with actual and/or constructive knowledge

23

of direct infringements of Plaintiffs’ copyrighted works, materially contributed to or aided

24

in such infringement.

25

infringement.
37.

26

Such defendants are thus liable for contributory copyright

All named Defendants, and Does 1-10, have induced infringement of

27

Plaintiffs’ copyrights.

28

//////
9
COMPLAINT FOR CONTRIBUTORY COPYRIGHT INFRINGEMENT

 Case 2:18-cv-09453-MWF-AS Document 1 Filed 11/07/18 Page 10 of 10 Page ID #:10

1
2

38.

As a result of these Defendants’ acts of infringement, Plaintiffs are entitled to

injunctive relief, damages, disgorgement of profits, statutory damages and attorneys’ fees.
PRAYER

3
4
5

39.

Plaintiffs pray for entry of judgment including the following relief:
a.

Actual damages in a sum to be proven at time of trial, in no event less
than $1,000,000;

6
7

b.

Statutory damages under the Copyright Act;

8

c.

Disgorgement of Defendants’ profits from their infringing activities;

9

d.

Costs and attorneys’ fees under the Copyright Act;

10

e.

Preliminary and permanent injunctive relief; and

11

f.

Such other and further relief as the Court deems appropriate.

12

Dated: November 7, 2018

OWENS & GACH RAY

13
14
15
16

By_/s/ Robert B. Owens_____
Robert B. Owens, Esq.
Attorneys for Plaintiffs

17
18
19
20
21
22
23
24
25
26
27
28

10
COMPLAINT FOR CONTRIBUTORY COPYRIGHT INFRINGEMENT