UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
DEREK ANDREW, INC.,
POOF APPAREL CORPORATION,
Appeal from the United States District Court
for the Western District of Washington
James P. Donohue, Magistrate Judge, Presiding
Argued and Submitted
May 8, 2008—Seattle, Washington
Filed June 11, 2008
Before: Susan P. Graber and Johnnie B. Rawlinson,
Circuit Judges, and Otis D. Wright II,* District Judge.
Opinion by Judge Wright
*The Honorable Otis D. Wright II, United States District Judge for the
Central District of California, sitting by designation.
Neil A. Smith and Robert J. Stumpf, Jr., Sheppard, Mullin,
Richter & Hampton LLP, San Francisco, California, for the
Lacy H. Koonce III, Davis Wright Tremaine LLP, New York,
New York, for the plaintiff-appellee.
WRIGHT, District Judge:
Poof Apparel Corporation (“Poof”) appeals the district
court’s award to Derek Andrew, Inc. (“Andrew”) of $15,000
in statutory damages under the Copyright Act, along with
$296,090.50 in attorneys’ fees.1 We have jurisdiction pursuant
to 28 U.S.C. § 1291, and for the following reasons,
REVERSE and REMAND.
A. THE PARTIES AND PROPERTY RIGHTS AT ISSUE
Andrew and Poof are corporations engaged in the apparel
1Poof also challenges other rulings by the district court; we reject those
arguments in a memorandum disposition filed this date.
DEREK ANDREW v. POOF APPAREL CORP.
business. Of primary importance to this appeal is Andrew’s
“Twisted Heart” clothing line—a line of casual sportswear for
women aged 14-70. Consumers can find this line at high-end
department stores such as Nordstrom, Saks Fifth Avenue, and
Neiman Marcus. The average price of Twisted Heart clothing
is approximately $100.
Andrew’s Twisted Heart line is identified by its label and,
in particular, its “hang-tag” featuring its “Heart Design” and
“Twisted Heart” trademarks.2 Developed and first used i