Kitsch LLC v. Viori Beauty PBC, 2026 WL 1356424, No.
2:25-cv-10830-SPG-AGP (C.D. Cal. May 8, 2026)

Kitsch is “a leading beauty product and accessories
manufacturer and sells its products in major retail stores and online through
its website and third-party websites, such as Amazon.” It sells solid shampoo
and conditioner products, marketed on Amazon with a photograph depicting the
shampoo and conditioner placed on top of the packaging, with images of the
ingredients contained in the bars scattered below the packaging.

L: defendant; R: plaintiff. Obvious substantial similarity, right?

Viori also sells solid shampoo and conditioner, including
through Amazon’s online marketplace. Its advertising is allegedly highly
similar to Kitsch’s, in that “both feature the products shown next to each
other with the physical products being placed on top of the packaging and with
images of the ingredients contained in the bars scattered below the packaging,”
and its packaging contains wording shown in the same order as Kitsch’s
packaging, with the same words in larger font.

Viori allegedly didn’t use this ad style until after Kitsch
entered the market. Kitsch also alleged that there’s no need for it because
other sellers display their products in distinct ways, and that Viori didn’t
use this photo on its own website, only on Amazon. 

Plaintiff’s examples of noninfringing packaging

Further, purchases from
Viori allegedly arrived in different packaging.

All of this allegedly was in the service of confusing
consumers, so Kitsch alleged claims for false advertising under the Lanham Act,
copyright infringement, and violation of California’s Unfair Competition Law.
The court dismissed the complaint because look at those pictures.

Kitsch didn’t plausibly allege any false statement of fact,
which defeated both federal false advertising and state UCL claims. Among other
things, the product shown in the supposedly different packaging was not the
same product as the product shown in the Viori photo. “Viori Hidden Waterfall
Shampoo and Conditioner Bar Set Made with Rice Water” is not “Viori Shampoo Bar
& Conditioner Bar + Bamboo Holder.” They didn’t show that Viori’s
advertised packaging is any different from the actual product. Where, as here,
“the allegations of the complaint are refuted by an attached document, the
Court need not accept the allegations as being true.”

Even if the actual packaging differed from that in the
image, that didn’t plausibly injure Kitsch. Kitsch argued that it was injured
because Viori copied its advertising. “Thus, it would make no difference to
Plaintiff’s alleged injury whether Defendant’s products arrive in the same
packages as advertised.”

Copyright infringement: Not always resolvable at the motion
to dismiss stage; very much so here. The photos here received relatively thin
protection: a “commercial product shoot” allows for only a “narrow range of
artistic expression.” None of the photos contained any particularly unusual
elements that defy “the conventions commonly followed” in such photos. Indeed,
the competitors’ submitted photographs “bear numerous similarities to the
parties’ photographs”:

(1) all five photographs depict a set of two products,
including both solid shampoo and conditioner; (2) all five photographs depict
both the packaging and the shampoo and conditioner outside the packaging; (3)
all five photographs are set against an off-white background with no other
foreground or background features; and (4) three of the five photographs
include images of the ingredients contained inside the products. Thus, these
elements appear to be standard features commonly associated with such advertising
images.

Given the thinness of the copyright, only “virtual
identical” copies would infringe; those were not present:

Most significantly, while Plaintiff’s photograph places the
products directly on top of the packages, Defendant’s photograph places the
products behind the package, suspended in mid-air and partially obscured by the
package. Defendant’s image also contains reflections underneath the packaging
and ingredients, while Plaintiff’s image contains no reflections. Further,
Defendant’s photograph contains a larger foreground and places the ingredients
closer to the packaging than Plaintiff’s photograph.

For some reason, the court grants leave to amend.

from Blogger https://tushnet.blogspot.com/2026/05/it-doesnt-infringe-to-use-similar.html