Monday, April 22, 2019

Controversy in the World of High End Bikinis

The small, independent retailer taking on a global corporation is often portrayed as a feel-good, David vs. Goliath theme in news reports and movies alike.  Hence, the story of Kiini versus Victoria’s Secret may spark an automatic sense of favor towards the underdog.  After all, the bikini company, Kiini, was formed by a young entrepreneur who, at the time, was bouncing between jobs and struggling to find her career path, ultimately finding her niche in the high-end, luxury market.  Fortunately, she was well-advised to seek copyright protection for her product, a crocheted bikini.  Not long after the launch party for the Kiini bikini, the bikini soared in popularity, spurring various alleged knockoffs.  Most notably, Victoria’s Secret began selling a bikini that was suspiciously similar to the Kiini bikini, the Kiini version shown on the left below and the Victoria’s Secret set on the right:

Givner, Ariel. “Kiini, Victoria’s Secret Settle Swimsuit Infringement Lawsuit”. Photograph: 

Kiini proceeded to sue Victoria’s secret for copyright infringement as well as claiming trade dress protection.  According to the Lanham Act, trade dress protection is obtained without formal registration with the USPTO, stating that:
Any person who, on or in connection with any goods or services, or any container for goods, uses in commerce any word, term, name, symbol, or device, or any combination thereof, or any false designation of origin, false or misleading description of fact, or false or misleading representation of fact, which
(A) is likely to cause confusion, or to cause mistake, or to deceive [...] as to the origin, sponsorship, or approval of his or her goods, services, or commercial activities by another person, or
(B) in commercial advertising or promotion, misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities,
shall be liable in a civil action by any person who believes that he or she is likely to be damaged by such an act.
Ultimately, Victoria’s Secret pulled the bikini line and settled with Kiini.  Kiini continues to produce swimwear priced at upwards of $280 per set. 
In an interesting twist, however, it has come to light in a New York Times article, that the founder of Kiini bikinis ultimately derived her idea for her distinctive bikini from a woman in Brazil, selling her hand-made bikini sets to tourists on the beaches of Trancoso. She has made her living selling these bikinis since 1998 and is known in the area as the “bikini lady”. Her bikini top is shown below on the left and the Kiini top is shown on the right.

Jens Mortensen for the New York Times;
These revelations emerged after Kiini’s lawyers sent a cease and desist letter to Neiman Marcus, who sells a crocheted swimsuit under the Platinum brand.  After some sleuthing and some inside information from a disgruntled former colleague of Kiini’s founder, the woman in Brazil, Solange Ferrarini, was located and a deal was struck that compensates her with an annual fee and includes her name in the swimwear branding.  
After determining that the bikini that the founder of Kiini used as a prototype was indeed a bikini bought from Ms. Ferrarini, based on habit of writing her name along the elastic of each bikini she crochets, the tables were turned.  Kiini and Kiini’s founder were sued on behalf of Ms. Ferrari, for unfair business practices.  Kiini withdrew its case against Neiman Marcus and as of the writing of the New York Times articles, the case against Kiini is ongoing. 
Ultimately, Kiini had a major, milestone moment in driving Victoria’s Secret to come to a settlement but it will be interesting to see how justice is served when it turns out David is an imposter. 


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