Independent Brand Ox Sues H&M for Allegedly Knocking Off Its ‘Ourglass’
Ox is accusing the fast-fashion retailer of patent infringement, trade dress infringement, and unfair competition.
Filed Dec. 22 in federal court in New York, the lawsuit opens with a reference to a Christmas classic.
“The usual suspects this holiday season are not Harry and Marv from ‘Home Alone’ but Hennes & Mauritz of H&M and instead of invading and robbing a kid’s home, defendant is selling unauthorized copies of a young and independent brand’s jewelry as part of its 2023 holiday collection,” it states.
Sister-and-brother duo Jessica and Michael Busiashvili founded Ox after Jessica spent years researching and developing the design concept that serves as the company’s backbone, the “Ourglass” link.
Ourglass links consist of two hourglass-shaped components that intersect to create one form, with a diamond set into each of the four ends.
They have no front or back, making the diamonds visible from all angles, and are uniformly sized and circular so they roll on the wearer’s body, as seen in this Reels video on Ox’s Instagram.
The company received a U.S. utility patent for the Ourglass in January 2020, and a design patent in August 2021, according to exhibits filed alongside the lawsuit.
In March 2022, Ox launched its brand with a single tennis bracelet, later expanding to rings, earrings, necklaces, pendants, and chains.
Since then, the brand has gone viral on Instagram and “routinely attracted unpaid media coverage,” the lawsuit notes.
This includes a November 2023 profile in National Jeweler in which the publication’s former Senior Editor, Fashion, Ashley Davis wrote, “Just when you think you’ve seen every possible rendition of a diamond tennis bracelet, [Ox] comes along and innovates the classic style.”
Somewhere along the way, Ox contends in the suit, H&M “spotted” its jewelry and “intentionally copied” the Ox trade dress for jewelry sold as part of its 2023 holiday collection, which it began selling in early November.
Ox sent H&M a cease and desist letter on Nov. 10, and the retailer’s attorneys responded on Dec. 6, with both letters filed as exhibits accompanying the lawsuit.
In its response, H&M declined to pull the allegedly infringing jewelry from its stores.
An attorney for the retailer contended, in part, that the design patent for the Ourglass link is invalid because it has “the same functional, rather than ornamental, features” as the brand’s utility patent.
“We see no reason for further discussion over an invalid patent,” the letter reads.
In the letter, the attorney also threatens to work to invalidate Ox’s design patent, stating, “Although we would prefer not to, please understand that we are confident in our ability to quickly invalidate the ’617 patent [the design patent] through an IPR [inter partes review] proceeding at a negligible cost to H&M.”
H&M declined to comment on the lawsuit, citing the fact that the litigation is ongoing.
The lawsuit filed by Ox includes a close-up shot of H&M’s alleged copy of the brand’s signature Ourglass bracelet, as well as photos of Ox-like necklaces and earrings sold by the fast-fashion retailer.
Ox, the suit notes, manufactures its jewelry in platinum or 18-karat gold with “top quality” natural diamonds while H&M’s products are “made from cheap and disposable materials.”
While there is a clear difference in price between the companies’ products—H&M’s sold out “Chunky Rhinestone Necklace” was priced at $69.99, while Ox’s jewelry starts at just under $4,000—Ox does not want consumers thinking it is making the jewelry H&M is selling.
It said in the lawsuit that within days of the allegedly infringing jewelry hitting the market, people as far away as London were calling Jessica to tell her they spotted Ox-like jewelry at H&M.
“The similarities between the legitimate items embodying the Ox trade dress and the infringing products sold by [H&M] are so striking that consumers have been and will continue to be confused into believing that the infringing products were designed and sold as part of Ox, although the infringing products do not represent the quality, craftsmanship, and luxury that is synonymous with Ox,” the suit states.
Ox is bringing three claims against H&M Hennes & Mauritz LP: patent infringement, infringement of the Ox trade dress, and unfair competition.
It is asking for monetary damages in the case as well as the profits H&M made from selling the alleged copies.
The jewelry brand also wants the court to issue an injunction prohibiting further infringement and unfair competition by H&M.
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