Fab – NY Start-up Sues TouchOfModern For Copyright Infringement: Legal Matters

Online start-up Fab sues rival for copyright infringement

By Michelle Hammond
Friday, 17 August 2012

US-based online start-up Fab is suing its rival TouchOfModern for copyright infringement, accusing the company of copying Fab’s site design and aesthetic, and lifting copy from the site.


Fab, a flash sales site for home furnishings, was founded by serial entrepreneur Jason Goldberg in February 2011 and launched later that year.


Its other founders are Bradford Shellhammer, Nishith Shah and Deepa Shah. Fab’s headquarters are in New York, but the company also has offices in Berlin, London and Pune.


Earlier this month, Fab filed a lawsuit against San Francisco company Whitehawk Ventures, which trades as TouchOfModern, a design-oriented flash sales site launched earlier this year.


TouchOfModern marketing representative Dennis Liu told Fab sent a cease and desist letter to TouchOfModern prior to the company’s official launch.


The letter alleged TouchOfModern copied stylistic elements from Fab, including having a black floating box placed on top of a photo on its homepage and placing product images side-by-side.


These allegations resurfaced last week when Fab filed its legal complaint. The 25-page lawsuit alleges Whitehawk is infringing Fab’s trademarks, trade dress and copyrights.


Fab also alleges Whitehawk has engaged in unfair competition by allegedly copying key elements of its site design, including its overall look and feel, visual icons, and lifting exact copy.


Goldberg is confident the matter will be quickly resolved in his favour, describing his company’s copyright claim against TouchOfModern as “very strong”.


“Like the people who create the products we sell, we’re designers,” Goldberg said in a statement.


“We build all of our own technology, and we take pride in the unique design of our website and mobile apps. We have gathered a significant amount of evidence to support our lawsuit.”


TouchOfModern has also issued a statement, confirming it is aware of the lawsuit being brought against it by Fab, but has dismissed the allegations as “baseless”.


“The claims in the lawsuit are unsupported and lack any substance. All of our design elements utilise open source frameworks and are developed in-house,” it said.


“Our vendors have consistently told us that they prefer working with us over”


Last month, Fab closed a $105 million funding round, suggesting it is well prepared for a potentially lengthy court battle.

But according to TouchOfModern, this funding has simply enabled Fab to “engage in such bullying tactics to stifle competition”.


“We fully intend to defend ourselves,” it said.


In Australia, there have been calls for the implementation of a “graduated response system, which would notify users when they commit copyright infringement on the internet.

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