Gallery Furniture accused of stealing intellectual property from FOMO Factory

Rachel Youens caused a sensation in May 2019 when she opened FOMO Factory in the Galleria space formerly occupied by BBVA.

The old 6,100 square foot office has been converted into a colorful maze of “experiential retail” art exhibits: a camp room with a tent, canoe and binoculars; a game room with wall-sized Scrabble and Twister boards; a room with a pool filled with 5,000 plastic balls. Adults paying $ 28 could frolic there for an hour and a half.

Almost two years later, and after Youens’ death in July 2019, his parents claim that Houston’s Gallery Furniture, run by the flamboyant Jim “Mattress Mack” McIngvale, and an affiliated company hired the same artist used by FOMO Factory and recreated copyrighted art. facilities to attract customers to its stores. The couple are suing Gallery and its subsidiary, Tov Furniture of New York, claiming unspecified damages and asking that the copyrighted exhibits be seized.

The alleged theft of intellectual property overwhelmed Youens, 35, in the weeks leading up to his death by suicide, according to the complaint filed on March 29 in U.S. District Court for the Southern District of Texas in Houston.

“She believed that Gallery Furniture and Tov Furniture would get away with stealing her ideas, her dreams and that her business would inevitably fail as a result,” the suit says.

Youens started the business in 2018 with his parents, opening a pop-up store first in Austin and then in Houston. Under Youens’ leadership, FOMO Factory was one of the first to embrace the retail trend that costume calls “immersive art”.

Youens’ parents closed FOMO’s location inside the Houston Galleria after her death, but reopened it in December 2019 “in keeping with my daughter’s legacy and whimsical imagination,” Robert Youens said in a statement at the time.

The lawsuit alleges that when Rachel Youens discovered what she describes as “exact copies” of her copyrighted works, “she felt completely violated.” She confronted Gallery Furniture, its famous owner Jim “Mattress Mack” McIngvale and its business subsidiary Tov Furniture in opinions written in the weeks leading up to her death in July 2019, the lawsuit says. Reached Monday, McIngvale declined to comment on the lawsuit.

Responses Tov Furniture sent to Youens downplayed her claims and threatened her with legal action, the lawsuit says.

“The only way to protect her intellectual property and the business she and her family had invested so much in was to take legal action. However, she believed that it would be impossible for her to fund a copyright infringement litigation against anyone, let alone a large, well-funded and respected company in Houston, ”the complaint states.

The lawsuit accuses Gallery Furniture of interrupting a prime time for the pop-up art trade, a world in which timing is everything and the public interest has an expiration date: typically around six months, says the trial.

The Youens family built their Galleria space on their own, often sleeping in the space overnight as they prepare to launch in June 2019, the suit says. Rachel Youens invested her savings in the business and, relying on the business’s success in Austin, her parents offered “large loans” for capital expenditures.

FOMO is suing for lost profits and increased damages, alleging a willful violation by Gallery. A lawyer representing the company said the amount of money sought would be determined upon discovery, which should shed light on Gallery Furniture’s profits.

“Because we haven’t made any findings yet, we don’t know what the benefits were,” said Christopher Stevenson, attorney at Houston firm Adair Myers Stevenson Yagi representing the Youense.

Courts have acted slowly during the pandemic, he said, and the case could take years to be dealt with.

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