Redbubble: Brandy Melville Files Another Lawsuit Against Redbubble

Brandy Melville won't go down easy. The Gen Z favorite filed another lawsuit against online marketplace Redbubble, even after losing a contributory liability lawsuit to them on appeal and subsequently getting snubbed by the Supreme Court , which declined to review the lawsuit in February. More from Sourcing Journal The case focuses around the trademark of three Brandy Melville designs: its "Chill Since" trademark, its "Radio Silence" trademark and its "Comic Eyes" trademark. Each trademark is affiliated with a design unique to Brandy Melville. Courtesy of Brandy Melville via court documents. This time around, Brandy Melville has sued Redbubble for both trademark and copyright-related claims. In the last complaint, the Los Angeles-based company only honed in on trademark infringement. Scott Hervey, partner at Weintraub Tobin law firm, said that may be because Brandy Melville originally had reservations about bringing copyright into the equation. The Digital Millennium Copyright Act (DMCA) and its safe harbor provisions make it relatively difficult to hold a platform responsible for the actions of a third party, Hervey said. "[Under the DMCA], you get a safe harbor for any form of copyright liability, based on infringing content that is just that is hosted on your platform by third parties, as long as you implement the notice and takedown provisions of the DMCA, where the the copyright holder has the right to send a notice to the provider requesting the removal of certain infringing content," Hervey said. Redbubble's user agreement does stipulate that copyright holders can file a takedown notice with the company. But in this lawsuit, Brandy Melville alleges that Redbubble has not been compliant with takedown notices it has sent. "Despite being placed on notice of Brandy Melville's intellectual property rights, including its registered trademark and copyright, Redbubble has persisted in offering for sale, advertising and selling counterfeit Brandy Melville products-including one or more of the exact same designs that Brandy Melville asked to be taken down in February 2024," counsel for the apparel purveyor wrote in the complaint. While a Google search for "Redbubble chill since 1993 Malibu" does yield a Redbubble listing titled, "chill since '93 | iPhone case," clicking into that listing brings up an error page informing the user that the design is not available. The seller the product was attributed to has no product listings on their profile. Hervey said that of note on that argument is the fact that Brandy Melville's counsel did not allege that the same sellers were involved with the designs each time; while the designs may be similar or the same, the origin may not be. In the last case, the Ninth Circuit, which ultimately gave Redbubble a win on its appeal, said that Brandy Melville had not done enough to establish contributory liability where trademarks were concerned. Hervey said it remains to be seen whether this time around will prove to be different for the brand, but he noted that, regardless of the outcome, Redbubble should be prepared to see further legal action. "Even if they lose, they'll file a new one based on new acts of infringement. They'll continue to file and file and file and file and file and file, looking at different acts, looking for something different, trying to find something that will satisfy the court. Then when they find that one thing that the court says, 'OK,' they're going to continue to file more," Hervey told Sourcing Journal. For Redbubble, the slew of legal action could prove poor business practice, Hervey noted. To avoid similar legal issues, YouTube put into place a system that scans videos for registered copyright, then allows the owner of that copyright to have the video taken down or to monetize the creator's video and keep all profits that come from it. Brandy Melville is not the only company that has had trademark skirmishes with the Australian company, so Redbubble could consider taking similar action, he said. "If it's more expensive for Redbubble to defend the claims and to continue to sell the infringing merch, then, from a business perspective, it makes business sense to do something about it," he said. "For [Brandy Melville], it's not just about lawsuits-it's also about sending them thousands upon thousands of takedown notices every day...and basically, you're burying Redbubble with them, and they have an obligation to respond and act on them." Hervey said that if Brandy Melville continues to see losses in their pursuits against Redbubble, they may re-focus their efforts on other defendants. "If I were advising Brandy Melville, I would advise them to look into suing other potential defendants, such as potentially the [merchandise] printers or trying to find a really good [seller] target as a potential defendant-send the message," he told Sourcing Journal.