Copyright Plaintiff Granted Leave to Amend Access Allegations for Two QVC Apparel Designs

LitNews.ai Staff · April 24, 2026 · S.D.N.Y.

Judge Mary Kay Vyskocil granted in part Klauber Brothers' motion to reconsider a dismissal, permitting the plaintiff to amend its complaint regarding two specific apparel designs after finding that an argument about defendant access was waived.

The ruling addresses a copyright infringement dispute between designer Klauber Brothers, Inc., and defendants QVC, Inc., Quarate Retail Group, Inc., Xcel Brands, and Lai Apparel Design, Inc.

In a prior order, the court dismissed Klauber's claims regarding seven designs—labeled A through G—concluding that only Designs A and D were substantially similar to the plaintiff's work.

The court also dismissed the claims because Klauber failed to plead sufficient facts showing that the defendants had access to the copyrighted designs before manufacturing their products.

Klauber moved for reconsideration, arguing that the court misapplied the substantial similarity standard and improperly relied on an access argument raised for the first time in the defendants' reply brief.

The court rejected the challenge to its substantial similarity analysis, holding that it properly applied the ordinary observer test and that relitigating the dismissal of Designs B, C, E, F, and G was inappropriate.

However, the court held that arguments raised for the first time in a reply brief are generally deemed waived.

Because the access argument was not properly raised during the initial motion to dismiss, the court granted Klauber leave to file a proposed Second Amended Complaint.

This amendment is strictly limited to adding allegations of access regarding Designs A and D only, as the court held that amending claims for the other five designs would be futile.

Klauber must file its Second Amended Complaint on or before May 22, 2026.

Counsel

Plaintiff is represented by Laura Zaharia Marion, Doniger/Burroughs, of Brooklyn, NY and Scott Burroughs, Doniger/Burroughs, of Venice, CA. Defendant QVC, Inc. is represented by Craig Matthew Flanders, Blank Rome, LLP, of New York, NY and Timothy D. Pecsenye, Blank Rome, LLP, of Philadelphia, PA. Defendant Quarate Retail Group, Inc. is represented by Harlan Mitchell Lazarus, Lazarus & Lazarus, P.C., of New York, NY and Timothy D. Pecsenye, Blank Rome, LLP, of Philadelphia, PA.

Defendant Xcel Brands is represented by Harlan Mitchell Lazarus, Lazarus & Lazarus, P.C., of New York, NY. Defendant Lai Apparel Design, Inc. is represented by Harlan Mitchell Lazarus, Lazarus & Lazarus, P.C., of New York, NY.

Case

The case is KLAUBER BROTHERS, INC., Plaintiff, v. QVC, INC., QUARATE RETAIL GROUP, INC., XCEL BRANDS, LAI APPAREL DESIGN, INC., and DOES 1-10, Defendants., in the S.D.N.Y..

Court

S.D.N.Y.

Case Name

KLAUBER BROTHERS, INC., Plaintiff, v. QVC, INC., QUARATE RETAIL GROUP, INC., XCEL BRANDS, LAI APPAREL DESIGN, INC., and DOES 1-10, Defendants.

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