Lawsuit Pits Secondhand Store Against Streetwear Startup
A St. Louis, Mo. secondhand retail chain has “found” itself in a legal conundrum.
Found by the Pound, which operates three stores in the area, is taking luxury streetwear retailer Found Fashion to court for alleged trademark infringement. According to a lawsuit filed by the plaintiff in a St. Louis Circuit Court last week, the new storefront’s similar moniker is already creating brand dilution and “actual confusion” among consumers.
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Found by the Pound, which opened its first location in 2016 and also operates on Etsy, asked a judge to issue an injunction preventing Found Fashion from using the word “found” in its name. It is also seeking punitive damages and compensation for legal fees.
The complaint claims that Found by the Pound has “federal and common law rights” to the name and all its permutations under Missouri law. Just one of the chain’s stores actually sells clothing by weight, using “Found by the Pound” on the front door. The other two, which also sell secondhand and vintage apparel, accessories and footwear, use a shortened “found.” or “found. vintage” mark on their signs and marketing materials.
Found Fashion, which opened in September at the City Foundry outdoor shopping center in St. Louis, also shortens its name to “Found” in the Foundry’s directory and on its door sign. The lawsuit alleged that the defendant is now “using, marketing and displaying” the infringing mark in the state of Missouri, as well as using it for interstate commerce. Found Fashion does not appear to operate an e-commerce site.
“Since 2021, at least 37,000 pieces of clothing have gone ‘out the door’ of Plaintiff’s shops with ‘FOUND’ retail tags on them, further ingraining that signifier in the minds of the relevant public,” the lawsuit said. The retailer has also sold tens of thousands of promotional items ranging from tote bags to stickers bearing the “Found” or “Found by the Pound” names, and has 38,000 followers across Instagram, Facebook and TikTok.
“The Found Family of Marks have gained favorable public acceptance and recognition and secondary meaning,” the complaint said, noting their “incalculable value.”
Since the Found Fashion store opened two months ago and was added to City Foundry’s store directory, Found by the Pound alleges that shoppers have been misled about the relationship between the two businesses. “Numerous consumers” mistakenly congratulated Found by the Pound on the opening of a fourth store. In September, Found by the Pound contacted Found Fashion’s legal counsel, which denied any trademark infringement.
Now, Found by the Pound is asking for a “preliminary and permanent injunction” against the defendant’s use of digital and physical materials containing any word, words, phrases, symbols, logos or combination of words and symbols that would create a likelihood of confusion, mistake or deception on the part of shoppers. The plaintiff aims to stop Found Fashion from “reaping any additional commercial advantage from its misappropriation” of the marks.
