Concord Fabrics, Inc. v. Marcus Brothers Textile Corp.
Decision Date | 12 March 1969 |
Docket Number | Docket 33341.,No. 494,494 |
Citation | 409 F.2d 1315 |
Parties | CONCORD FABRICS, INC., Plaintiff-Appellant, v. MARCUS BROTHERS TEXTILE CORP., Defendant-Appellee. |
Court | U.S. Court of Appeals — Second Circuit |
Arthur S. Olick, New York City (Otterbourg, Steindler, Houston & Rosen, New York City, on the brief), for appellant.
Jesse Rothstein, New York City (Amster & Rothstein, Horvath & Young, and Harold Young, New York City, on the brief), for appellee.
Before LUMBARD, Chief Judge, SMITH, Circuit Judge, and McLEAN, District Judge.*
This appeal raises the narrow question of whether the district court properly refused to issue a preliminary injunction in this copyright infringement case.
Plaintiff-appellant, Concord Fabrics, Inc., brought this action seeking to enjoin Marcus Brothers Textile Corp. from manufacturing, converting, selling and distributing textile material allegedly copying Concord's design pattern No. 7073, which Concord has copyrighted. The district court originally issued a temporary restraining order, but later denied Concord's motion for a preliminary injunction and vacated the restraining order, finding that the allegedly infringing pattern was not so similar to the copyrighted pattern as to merit an injunction pending completion of the trial. 296 F.Supp. 736. We disagree.
The design on both plaintiff's and defendant's fabric consists of a circle within a square within a square, with the dimensions of the circles and squares being identical. The colors are essentially the same, although the defendant's are somewhat brighter and more garish. The designs within the circles, between the squares, and around the outer square, while having some differences, give the same general impression on both samples. While the trial court placed great emphasis on the minor differences between the two patterns, we feel that the very nature of these differences only tends to emphasize the extent to which the defendant has deliberately copied from the plaintiff. For example, the frames around the border on the defendant's sample are similar but run in opposite directions from the plaintiff's figures. The same is true of the figures around the outer part of the circle. In sum, a comparison of the samples strongly suggests that defendant copied plaintiff's basic design, making only minor changes in an effort to avoid the appearance of infringement.
The ultimate test in a copyright infringement case of this sort...
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...was to determine whether a preliminary injunction would be justified under the proper standard. See Concord Fabrics, Inc. v. Marcus Bros. Textile Corp. 409 F.2d 1315, 1317 (2 Cir. 1969). The opinions in Riverton, 304 F.Supp. 357 (S.D.N.Y. 1969) and 433 F.2d 1034 (2 Cir. 1970), give the high......
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