In an interesting case at the intersection of intellectual property rights and social media, influencer Sydney Nicole Gifford has sued fellow creator Alyssa Sheil for trade dress and copyright infringement, claiming that Sheil has ripped off her looks and style and created extremely similar content. The claim comes after Gifford’s attorneys sent cease and desist letters to Sheil to no avail. Gifford’s lawsuit alleges that Sheil has “replicated the neutral, beige, and cream aesthetic of [Gifford’s] brand identity”, has featured the same products as Gifford, and has replicated “photos, videos, products, captions, and styling of myriad [Gifford’s] posts”.
Trade dress is the overall commercial look and feel of a product that identifies the source of the product and distinguishes it from other’s products. Common examples of trade dress include the shape of a Coca-Cola bottle, the shape and color of IHOP restaurants, and the red wax seal on the bottle of Maker’s Mark bourbon. To be successful in a trade dress claim, Gifford, in this case, must show that her look and feel has acquired “secondary meaning” which means that the public would associate the aesthetic with Gifford, and are likely to be confused when they encounter Sheil’s similar aesthetic. Gifford’s complaint states that she has a “distinctive trade dress comprised of monochrome cream, grey, and neutral-beige colors coupled with modern, minimal, sophisticated styling of Amazon products”. Gifford will have to show that the public associates this style with Gifford, and that the public would be confused into thinking that Sheil is somehow related to Gifford when encountering Sheil’s content.
The copyright claim involves the alleged infringement of Gifford’s photos and videos, with Gifford claiming that Sheil has used “identical products…with identical styling, tone, camera angle, and/or text” and has posted “nearly identical videos” to Gifford’s copyrighted videos. Gifford will have to show here that the original and protectable elements of the photos and/or videos were copied by Sheil.
Gifford is seeking an injunction to stop Sheil from posting as well as financial damages. It appears that Gifford will have an uphill battle, as it is difficult to say that one owns a particular style, look, and feel. On the other hand, blatant copying of someone’s profile for personal gain should not be allowed. The outcome here will be interesting, even though it is likely to settle before a verdict is reached in court.
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