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Bikini Copyright Battle – Will the True Designer Please Stand Up?

A New York Times article written by Katherine Rosman last month titled, “The Itsy-Bitsy Teenie-Weenie Very Litigious Bikini”, is an intriguing copyright-fashion case in so many ways, but the focus of this post will not necessarily be the merits of the case on either side, but the investigative steps taken to get to the truth.

WHAT IS THIS CASE ABOUT?

Essentially it’s about one party (Ms. Irgit, owner of Keeni) who made the claim that others infringed on the copyright of her globally popular bikini design, except, the claimant may not be the actual originator of the design.  The claimant may have actually infringed on the IP of the true creator.

Here is a quote from IP Attorney Jeanne M. Heffernan that captures what may have happened in this case, “ ‘…Here you have a woman (Ms. Irgit) who appears to have taken the I.P. of someone else and registered it as her own — and then, it seems, had the audacity to sue an industry over something she did not create and may have stolen. If true, it’s breathtaking.’ ”

The New York Times article is a well written and detailed 4,500-word narrative that I highly recommend you read in its entirety. But, in an effort to provide highlights that are most instructive to IP PI Blog readers, I have pulled a number of quotes from the article that provide a chronological journey of the claim, followed by my occasional comment in a blue background.

Note: Everything in “italics” is quoted from Katherine Rosman’s New York Times article.

SO THE STORY GOES LIKE THIS…

“Ms. Irgit (claimant) asked a friend in the fashion industry (Sally Wu) to create a prototype (of the bikini) and a factory in China made a batch at a cost of about $29 each.”

It appears the friend didn’t inquire about the bikini’s origin. Not that she was obligated to do so.

“In June 2014, People magazine called it “the hottest bikini this summer.” 

“By 2015, Ms. Irgit’s suit had brought in approximately $9 million, said Sally Wu, who for years helped the company source its bikinis from China.”

“As is often the case in fashion, Kiini’s success drew copycats. Ms. Irgit complained about it to her lawyer, who advised her to apply with the United States Copyright Office for protection.”

So she registered the bikini design with the Copyright office. Interesting.

“In 2015, she (Ms. Irgit) was particularly inflamed by the introduction of a faux-Kiini made by Victoria’s Secret.”

How about that. She didn’t create the design but (allegedly) stole it and she’s “inflamed.”

“That October, in the central district of California, her (Ms Irgit’s) lawyers filed a federal lawsuit accusing the company of copyright infringement.”

“It called for Victoria’s Secret to stop selling the swimwear and pay damages.”

“Ms. Irgit was scrappy. At one point, she surreptitiously recorded a meeting with a former Victoria’s Secret swimwear designer.”

“Then Kiini’s lawyers deposed the designer; when her testimony contradicted what was on the secret tape, they played it back for her, making for a dramatic and embarrassing moment.”

That’s actually an effective investigative tool as long as it occurs in a state that does not require all parties to be informed of the recording. (See attached link: LAWS ON RECORDING CONVERSATIONS IN ALL 50 STATES)

“As the litigation dragged on, Victoria’s Secret decided to get out of the swimwear business altogether, and by March 2017 the company and Kiini had agreed to a confidential settlement. (Victoria’s Secret declined to comment.)”

“A year later, in April 2018, Kiini filed another federal lawsuit, this time in the Southern District of New York, against Neiman Marcus and two swimwear companies.”

The claimant appears to be relentless in preventing anybody else from stealing what she allegedly stole.

CLAIMANT LOVED THE CREATIVE PROCESS

“It was the creative process she most cherished, she said. She meandered, though, when I asked her repeatedly to talk about inventing the Kiini.”

“Did she sketch it? How did she come up with the idea of threading elastic through crochet?”

Good basic investigative questions: When did you create it? Where did you create it? Who did you create/develop it with? What did you use to create it? How did you create it?  Why did you create it?

“It goes back to with my grandmother,” Ms. Irgit said, in her most specific answer. “We used to make things like crochet bikinis, so I was like 10 and 11.”

“What about the bathing suit Ms. Irgit was wearing on the beach in Montauk in 2012 with Mr. Becker? Who made it? “I had had it made,” was all Ms. Irgit would say.”

Her answers are not specific. Evasive. A red flag should go up for the investigator.

LET’S TALK TO MS. IRGIT’S 2012 PADDLEBALL BUDDY

“I called Mr. Becker, her (Ms. Irgit’s) paddleball partner.”

2012. “He remembered the moment well. “She was wearing it,” Mr. Becker said. “I noticed it and I said it was really cool.”

“She told me she had found them in Brazil and was contemplating starting to do something with it in different varieties.”

Uh, Oh…

LOCATE AND INTERVIEW BRAZILIAN BIKINI DESIGNER

“I created this bikini to survive,” Ms. Ferrarini (the alleged true designer of the bikini)  said. She was born in São Carlos, a university city outside São Paulo, where her father was a bricklayer and her mother was a seamstress.”

“When she was 10, her mother taught her to crochet so that she could make clothes for herself and her younger sisters.”

“She crocheted thong bikini bottoms and sold them by pacing the beach. It was nudist, though, and that created a problem.”

“To get back to the guesthouse at the end of the day, Ms. Ferrarini had to pass a seaside church. As a Catholic, she didn’t feel right walking by in just a thong, with her breasts exposed.”

“In reverence, she added a handmade, curtain-like top that draped over her chest. The design evolved into a bikini top.”

As an investigator, when you get this kind of detail it just rings true. You can ask an additional 100 questions (and should) but you know you’re hearing the truth.

“When Ms. Ferrarini realized she needed more support than yarn could provide, she began to thread elastics through the crochet to give a little lift.”

“Other women quickly took note. They asked her to make tops for them, too. Initially, she sold the bikinis for the equivalent of $2.50. She increased the price by about $5 every couple of years.”

NOW IT GETS MORE DICEY FOR Ms. IRGIT

“Ms. Wu said that Ms. Irgit told her, “I need to figure out how to copy it.”

“Ms. Wu was surprised, she said, to get a phone call from Ms. Irgit one night in the late summer of 2016.”

“…lawyers for Victoria’s Secret had learned that Ms. Wu had a hand in Kiini’s production.”

“Victoria’s Secret had given Ms. Irgit’s lawyers advance notice that Ms. Wu was going to receive a subpoena for a deposition.”

“Ms. Wu said she clearly recalled what Ms. Irgit said next. “She’s like, ‘You can’t really tell them I copied.’ I said, ‘Listen, Ipek, I’m not going to lie.” 

“Before Ms. Irgit departed, Ms. Wu said, Ms. Irgit wrote a note on a yellow sticky pad.”

“It read, “If Kiini LLC wins the VS case Ipek is treating” — the penmanship is imprecise and the word “treating” might be “hosting” or “having” — “Sally ChaCha and 3 optional friends on holiday anywhere in the world!” (Cha Cha was a nickname for Ms. Wu’s daughter.)”

“She signed it ‘Ipek’ , underlining her name in a flourish.”

“Ms. Wu said she never received a subpoena. The next year, Victoria’s Secret settled the lawsuit with Kiini.”

As IP investigators we can’t help but wonder why Victoria’s Secret never subpoenaed WU. You would think that if they had followed through, they may not have settled, and the infringement claim against them would have been withdrawn.

ANOTHER LAWYER GETS THE CALL

“He (former U.S. federal prosecutor, Jason Forge) got in touch with lawyers involved in the Victoria’s Secret litigation and heard rumors of an unacknowledged bikini maker in Brazil.”

Former law-enforcement gets involved, and, of course, systematically starts to uncover the truth

Forge goes online and excavates a video that provides identifying information about the potential true creator of the bikini

“Online, he found a video made by a friend of Ms. Ferrarini’s in 2016 that displayed her phone number.”

“…thrilled to learn from someone at Neiman Marcus that there was a woman named Sally Wu who had worked with Ms. Irgit from the beginning.”

Former law enforcement attorney contacts other parties being sued by Ms. Irgit and learns about her colleague. This, of course, is a routine investigative step. Locate friends and colleagues (present and former) who might be willing to shed some light on what was going on

INTERVIEW MS. IRGIT’S COLLEAGUE

“Mr. Forge met Ms. Wu for a drink and got her story.”

Nice.

“She subsequently emailed him a photo of the yellow sticky note with Ms. Irgit’s signed offer.”

Even nicer.

“She also agreed to give Mr. Forge access to data from her old hard drives.”

Are you kidding me!

“Within days, he was looking at the “Sally darling” email Ms. Irgit sent to Ms. Wu some six years earlier, with photographs of the bikini she wished the Chinese producers to use as a reference for her prototype.”

Motivate me!

“On his computer, Mr. Forge scrutinized the pictures for details. One image was of the bikini bottom turned inside out.”

Excellent attention to detail!

“Mr. Forge zoomed in. He zoomed again.”

“Then he saw it. “I could not believe my eyes,” Mr. Forge told me. On the elastic, in marker, was a phone number, the words “Trancoso, B.A.” and the signature of Solange Ferrarini.”

Slam-dunk!!!

FOLLOW-UP INTERVIEW WITH THE CLAIMANT

“She didn’t have much to say about why the bathing suit shown in a photograph submitted to the Copyright Office is a near replica of Ms. Ferrarini’s bikini.

Of course, not a surprise.

“She said the note promising Ms. Wu a reward if a court verdict went her way was not a bribe.

That’s to be expected.

“At one point during the interview, Ms. Irgit walked into another room and returned with what she considered evidence that she created the design that became the Kiini.”

“It was a bikini made in the Ferrarini/Kiini style, with elastic woven through crochet sewed to fabric — in this case, padded leotard-like pink fabric with mustard-yellow polka dots.”

“The suit, she said, was made in 1999 and had been at her aunt’s house in Turkey until recently.”

*Tough spot. Ms. Irgit appeared to be grasping at straws.

“Ms. Irgit declined to be quoted directly on a number of topics.”

*No, we wouldn’t think so.

OBSERVATION

Isn’t it conceivable that if Ms. Irgit had approached Ms. Farrarini in Brazil, she may have had a collaboration opportunity in which both would have benefited?

Thirty years ago there was a very popular U.S. film titled, “Working Girl” starring Melanie Griffin and Harrison Ford. It is about a secretary who is trying to advance in the corporate world and comes up with an M & A idea that her boss dismisses, but—without telling the secretary—her boss submits to upper management and claims as her own.

There’s a scene at the end in which her boss is asked to explain how she came up with the business idea, but she was at a loss. Of course, the secretary had no problem there. The boss is fired and the secretary is upgraded to a management position.

MORAL OF THIS CASE

So, the moral of the story is that there are generally two options:

  1. Don’t steal another person’s idea.
  2. Come up with an original idea yourself.

Disclaimer: IPPIBlog.com is offered as a service to the professional IP community. While every effort has been made to check information in this blog, we provide no guarantees or warranties, express or implied, with regard to content provided in IPPIBlog.com. We disclaim any and all liability and responsibility for the qualification or accuracy of representations made by the contributors or for any disputes that may arise. It is the responsibility of the readers to independently investigate and verify the credentials of such person and the accuracy and validity of the information provided by them. This blog is provided for general information purposes only and is not intended to provide legal or other professional advice.

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Ron Alvarez is an IP Investigations / Protection writer and licensed private investigator in New York City. He is a former NYPD lieutenant where he investigated robbery, narcotics, internal affairs, and fine art theft cases. Ron is a graduate of the FBI National Academy and earned a B.A. in Government and Public Administration from John Jay College of Criminal Justice in Manhattan. He has published a number of articles on various investigative topics for PI Magazine. Ron is certified by the Interpol-International IP Crime Investigators College (IIPCIC.) as a "Transnational and Organized Crime Intellectual Property (IP) Investigator."

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