On April 28, 2026, the Central District of California handed down a ruling that every fashion brand owner and IP attorney should read. In Bastiat USA, Inc. v. Shein Distribution Corp., Case No. 2:25-cv-05701-ODW (DMKx), Judge Otis D. Wright, II dismissed two of Brandy Melville’s five claims against Shein — without leave to amend — because the plaintiff tried to use trademark law to remedy what was, at its core, a copyright problem.
Background
Brandy Melville, through its assignee Bastiat USA, sued Shein after the fast-fashion retailer allegedly copied Brandy Melville’s product photographs and clothing designs and displayed them on Shein.com without permission. Shein’s platform also hosts third-party sellers through its “Shein Marketplace,” and Bastiat alleged those sellers were peddling counterfeit Brandy Melville goods using the brand’s own marketing images to do it.
Bastiat brought five claims: copyright infringement under the Copyright Act; false designation of origin under the Lanham Act; common law unfair competition; contributory copyright infringement; and vicarious copyright infringement.
What the Court Ruled
Shein moved to dismiss the Lanham Act and unfair competition claims, arguing both were preempted by federal copyright law. The court agreed — on both counts — and dismissed them with prejudice.
The false designation of origin claim failed under Dastar Corp. v. Twentieth Century Fox Film Corp., 539 U.S. 23 (2003), which bars plaintiffs from using the Lanham Act as a backdoor into copyright territory. The court found that Bastiat’s trademark claim rested on the exact same conduct as its copyright claim: Shein copying and publicly displaying Brandy Melville’s photographs and designs without authorization. That is a copyright wrong, not a trademark wrong, regardless of how the complaint frames it.
Bastiat tried to recast its allegations in the language of consumer confusion — a core element of any Lanham Act claim — but the court was unmoved. Sprinkling in phrases like “likely to cause confusion” does not transform an unauthorized copying claim into a viable trademark claim. The underlying conduct is what controls.
The common law unfair competition claim met the same fate. Under the Ninth Circuit’s two-part preemption test, a state law claim survives only if it protects rights that are qualitatively different from those covered by the Copyright Act — an “extra element” that changes the nature of the action. Bastiat’s unfair competition allegations were, word for word, nearly identical to its Lanham Act allegations. No extra element, no survival.
The court did, however, deny Shein’s motion to strike allegations supporting the contributory and vicarious copyright infringement claims (Counts 4 and 5). Those claims — and the factual allegations underpinning them — remain in the case and will be tested on a full factual record.
What This Means in Practice
This decision reinforces a principle that is easy to overlook when building a multi-claim infringement complaint: not every wrong fits every theory.
When the injury stems from someone copying photographs, designs, or other creative works, the Copyright Act is the right tool. Reaching for trademark law to pile on additional claims can backfire if the allegations do not hold up independently. A false designation of origin claim needs to be grounded in confusion about the source of goods in a meaningful trademark sense — not just confusion caused by copying. The distinction matters, and courts will enforce it.
It is also worth noting that “consumer confusion” language alone will not save a preempted claim. Courts look past the pleading labels to the actual conduct alleged. If the underlying act is copying, preemption follows regardless of how the complaint characterizes it. Once preemption attaches, there is generally nothing a plaintiff can add to fix the deficiency — both dismissed counts here were thrown out without leave to amend, meaning there is no second chance to replead. That is a hard outcome, and it underscores the value of carefully vetting every theory before the complaint is filed.
Platform liability, on the other hand, is still very much in play. Bastiat’s contributory and vicarious infringement claims against Shein survived the motion. Brands pursuing marketplace platforms for facilitating third-party infringement have viable paths forward — but those claims must be built on a solid foundation of direct infringement, knowledge, and the appropriate level of control or financial interest.
The Bottom Line
Bastiat v. Shein is a clean, well-reasoned opinion that draws a firm line between copyright and trademark protection in the fashion context. For brand owners dealing with copycat competitors, the message is straightforward: the legal theory has to match the actual harm. Getting that wrong at the outset can cost you claims entirely — with no second chance.
This article is for general informational purposes only and does not constitute legal advice. If you have questions about protecting your brand’s intellectual property, we encourage you to contact Attorney Erin Russell at 312-994-2424.
