302 F.2d 623 (2nd Cir. 1962), 87, Ideal Toy Corp. v. Sayco Doll Corp.

Docket Nº:87, 26918.
Citation:302 F.2d 623, 133 U.S.P.Q. 104
Party Name:IDEAL TOY CORPORATION, Plaintiff-Appellee. v. SAYCO DOLL CORPORATION, Defendant-Appellant.
Case Date:April 03, 1962
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 623

302 F.2d 623 (2nd Cir. 1962)

133 U.S.P.Q. 104

IDEAL TOY CORPORATION, Plaintiff-Appellee.

v.

SAYCO DOLL CORPORATION, Defendant-Appellant.

No. 87, 26918.

United States Court of Appeals, Second Circuit.

April 3, 1962

Argued Nov. 28, 1961.

Page 624

Harry Price, New York City (Dean, Fairbank & Hirsch, and Arthur B. Colvin, New York City, on the brief), for defendant-appellant.

Sidney P. Howell, Jr., New York City (Regan Goldfarb Powell & Quinn New York City, on the brief), for plaintiff-Appellee.

Before CLARK, HINCKS and KAUFMAN, Circuit Judges.

HINCKS, Circuit Judge.

We have before us an appeal from Judge Dimock's order granting a preliminary injunction and an appeal from Judge Bryan's denial of a motion to vacate or modify the injunction.

Plaintiff Ideal brought the original action against Sayco on December 7, 1960, claiming that defendant's 'Chubby Toddler' doll was copied from plaintiff's copyrighted 'Saucy Walker.' Judge Dimock, in an unreported order, granted a preliminary injunction on December 15, 1960. The evidence before Judge Dimock consisted of the Sayco doll, the Ideal doll, the Ideal copyright, and the self-serving affidavits of the parties. He found that 'A visual comparison between copies of plaintiff's SAUCY WALKER doll and defendant's CHUBBY TODDLER doll establishes that the head of defendant's doll incorporates so many distinctive features and characteristics of the head of plaintiff's doll as to lead to the conclusion prima facie that defendant's doll head was copied from plaintiff's * * *.' Sayco appealed.

Judge Dimock's factual finding of similarity and probable copying, while not necessarily one we would make ourselves, certainly was not clearly erroneous within the meaning of Rule 52(a), Fed.Rules Civ.Proc., 28 U.S.C.A. And to the extent that the granting of a preliminary injunction is a matter for the trial court's discretion, see Perry v. Perry, 88 U.S.App.D.C. 337, 190 F.2d 601, 602 (1951); Doeskin Products v. United Paper Co., 195 F.2d 356 (7th Cir. 1952); 7 Moore, Federal Practice P 65.04(2) (2d ed. 1955), we cannot say that, on the evidence before him, Judge Dimock's order was an abuse of discretion. It is affirmed.

Subsequent to the granting of the preliminary injunction, on March 3, 1961, Sayco filed an answer and counterclaim,

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adding as a defendant to the counterclaim the Goldberger Doll Manufacturing Company. Sayco charged that Goldberger and Ideal had conspired to suppress the fact that the disputed doll head was in the public domain, and to set up a monopoly. The nature of this claim became clearer on June 15, when Sayco, moving before Judge Bryan to vacate the injunction, claimed that Goldberger had marketed an uncopyrighted doll, more similar to Sayco's than to Ideal's, prior to either's entry into the market; that Ideal had filed a complaint against Goldberger but that the complaint had been dropped in pursuance of a 'deal' between Ideal and Goldberger. By the deal, the latter would suppress its doll, the better for Ideal to acquire a monopoly of all similar doll heads. Judge Bryan denied this motion and from this order also Sayco appeals.

It was proper, to be sure, for Judge Bryan to take jurisdiction of the motion pursuant to Rule 62(c), Fed.Rules Civ.Proc., which permits modification of injunction orders during the pendency of an appeal. But this rule is described as 'merely expressive of a power inherent in the court to preserve the status quo where, in its sound discretion, the court deems the circumstances to justify.' 7 Moore P 62.05; see United States v. El-O-Pathic Pharmacy, 192 F.2d 62 (9th Cir. 1951); Shinholt v. Angle, 90 F.2d 297, 298 (5th Cir.), cert. denied 302 U.S. 719, 58 S.Ct. 408 82 L.Ed. 555 (1937).

Of course, absent an appeal, a district court has complete power over its interlocutory orders. John Simmons Co. v. Grier Bros., 258 U.S. 828 42 S.Ct. 196, 66 L.Ed. 475 (1922); 7 Moore P60.16(4). And, absent an appeal, it lay within the discretion of the district court to consider newly presented evidence, such as the Goldberger doll. Marconi Wireless Telegraph Co. v. United States, 320 U.S. 1, 46-49, 63 S.Ct. 1393, 87 L.Ed. 1731 (1943).

Once the appeal is taken, however, jurisdiction passes to the appellate court. Thereafter the appellant is not usually entitled as of right to present new evidence or argument to the trial court, which in the exercise of a sound discretion will exercise jurisdiction only to preserve the status quo as of the time of appeal. Appellant's proper procedure is then to request leave of the court of appeals to proceed in the lower court. He need not even dismiss his appeal, for we have always been ready to suspend proceedings while new matter was introduced below. See, e.g., Triumph Hosiery Mills, Inc. v. Triumph International Corp., 191 F.Supp. 937 (S.D.N.Y.1961). But absent permission of the appellate court to reopen, sound judicial administration demands that unless the judge is satisfied that his order was erroneous he shall use his power under Rule 62(c) only to preserve the status of the case as it sits before the court of appeals. The right of a defendant to full hearing on the merits coupled with the interim protection afforded by the bond required under Rule 65(c), will generally suffice for the accomplishment of justice without the delays resulting from vacillating rulings.

Under the circumstances here, we think Judge Bryan could not properly change the whole posture of the case on appeal by vacating Judge Dimock's injunction. Thus Judge Bryan's order denying the motion was nonetheless right, though based on an erroneous belief that the injunction was a 'final' judgment or order within the purview of Rule 60(b).

Affirmed as to both orders.

CLARK, Circuit Judge (dissenting).

The opinion's concern solely with matters of procedure, including its retreat behind the assumed discretion of the trier, serves to mask the fact that here is being sustained a monopoly of unique and disturbing character. True, the subject matter-- toy dolls-- is not extensive; but the holding makes up in depth what it may want in extent. In the American concern for free competition I know of no limitation because of the comparatively limited nature of the field involved.

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So our first question-- one not directly considered in the opinion-- must be whether the plaintiff has brought its product within the coverage of a statutory exception permitting a temporary monopoly, here that of copyright. My brothers' reliance upon trial court discretion is therefore definitely out of place on the basic issue whether or not the plaintiff has a property right requiring protection against this defendant. For we have reiterated, indeed recently, that the question of legal right of a plaintiff must be reviewed on appeal from a grant of a preliminary injunction; and such right cannot be accepted as a mere...

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