The average consumer does not put much thought into what suppliers are behind the products sold by their favorite brands. Yet most famous American consumer brands actually are supplied by other, lesser-known companies. Such was the arrangement between Columbus, Ohio-based lingerie chain Victoria’s secret and New Jersey-based hosiery supplier Zephyrs. Zephyrs signed a contract in 2001 that allowed the brand to supply its Italian-made hosiery to Victoria’s Secret stores.

Recently, Victoria’s Secret has switched to a cheaper Canadian supplier but continues to use packaging that depicts images of Zephyrs products. Zephyrs has filed suit in federal court in Columbus, Ohio alleging breach of contract and false advertising under Section 43(a) of the Lanham Act. According to Washington Speakers Bureau, Inc. v. Leading Authorities, Inc., 33 F.Supp.2d 488, 493 (E.D. Va. 1999), “to prevail under §43(a) of the Lanham Act, a plaintiff must show that it has ‘a valid, protectible trademark and that the defendant’s use of a colorable imitation of the trademark is likely to cause confusion among consumers.’”

In its complaint, Zephyrs contends the “by making unauthorized use, in interstate commerce, of photographs of Zephyrs’ products on packaging in connection with inauthentic, low quality knockoffs, the Defendants have falsely misrepresented the nature, characteristics and/or qualities of its goods.” Exhibits are included which show the visual differences in terms of cheaper lace trim, irregular borders, less durable construction and missing heel reinforcements between the Zephyrs products depicted on the packaging and the actual Canadian ones being sold.

Zephyrs is also seeking “corrective advertising and a recall of the accused products, which may have been sold in over a thousand Victoria’s Secret stores, and on one of the Internet’s most popular websites, VictoriasSecret.com.”

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