Moshik Nadav Typography LLC v. Banana Republic, LLC

Background

Moshik Nadav Typography LLC, a typography and graphic-design business, alleged that Banana Republic, LLC used an ampersand closely resembling Nadav’s Paris Pro Ampersand in digital marketing and worldwide social-media posts without a license or other authorization. Nadav alleged that it was deprived of compensation and that Banana Republic presented Nadav’s work as its own.

Nadav asserted three New York-law claims: unjust enrichment, unfair competition, and violation of Section 349 of New York’s General Business Law, which prohibits deceptive business practices. Banana Republic moved to dismiss under Rule 12(b)(6), which tests whether a complaint alleges enough facts to state a legally plausible claim.

Court’s analysis

The court held that the unjust-enrichment claim failed because Nadav did not allege any relationship, dealings, or communications between Nadav and Banana Republic. Nadav’s allegation that Banana Republic copied the ampersand merely repeated the claim that Banana Republic benefited at Nadav’s expense. Nadav’s work for other companies in Banana Republic’s industry also did not plausibly show a relationship between the parties.

The court dismissed the unfair-competition claim because Nadav did not plausibly allege that Banana Republic acted in bad faith. Nadav asserted that Banana Republic deliberately or intentionally copied the design, but provided no specific facts showing that Banana Republic knew about Nadav, the Paris Pro Ampersand, or Nadav’s role in designing it. The court also stated that visual similarity alone generally does not establish bad faith.

The court dismissed the Section 349 claim because the complaint focused on a dispute between two businesses rather than consumer harm or harm to the public. The court further held that possible consumer deception, by itself, is not a legally recognized injury under Section 349.

The court agreed that all three claims failed as a matter of law and therefore did not decide Banana Republic’s alternative argument that federal copyright law preempted the claims.

Disposition

The court granted Banana Republic’s motion to dismiss and dismissed the complaint in its entirety. It declined to allow Nadav to amend the unjust-enrichment claim because that claim had appeared in earlier complaints and Nadav had already received an opportunity to address the identified defects.

The court granted Nadav leave to amend the unfair-competition and Section 349 claims because those claims had not appeared in the earlier complaints. Any third amended complaint had to be filed within three weeks of the opinion. The court stated that no further opportunity to amend would be given to address the defects identified in this opinion.