454 F.2d 1226 (2nd Cir. 1972), 394, Hub Floral Corp. v. Royal Brass Corp.

Docket Nº:394, 71-1930.
Citation:454 F.2d 1226, 172 U.S.P.Q. 418
Party Name:HUB FLORAL CORPORATION, Plaintiff-Appellant, v. ROYAL BRASS CORPORATION and Jacob Weinberg, Defendants-Appellees, and ETS Tissot & Cie, Defendant.
Case Date:January 24, 1972
Court:United States Courts of Appeals, Court of Appeals for the Second Circuit
 
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Page 1226

454 F.2d 1226 (2nd Cir. 1972)

172 U.S.P.Q. 418

HUB FLORAL CORPORATION, Plaintiff-Appellant,

v.

ROYAL BRASS CORPORATION and Jacob Weinberg, Defendants-Appellees, and ETS Tissot & Cie, Defendant.

No. 394, 71-1930.

United States Court of Appeals, Second Circuit.

January 24, 1972

         Argued Jan. 4, 1972.

Page 1227

         Lawrence Dittelman, New York City (Weil, Gotshal & Manges; Michael K. Stanton, New York City, on the brief), for plaintiff-appellant.

         Michael J. Striker, New York City, for defendants-appellees.

         Before HAYS, MANSFIELD and TIMBERS, Circuit Judges.

         MANSFIELD, Circuit Judge:

         In this action for infringement of an unpublished copyrighted work of art known as an "Octagonal Planter" pursuant to § 12 of the United States Copyright Act ("the Act"), 17 U.S.C. § 12, the district court granted partial summary judgment in favor of defendants, dismissing certain claims of the complaint on the ground that plaintiff, Hub Floral Corporation ("Hub") had failed to comply with § 13 of the Act, 17 U.S. C. § 13 (requiring deposit of copies of a work and registration with the Register of Copyrights where there has been a publication). Pursuant to Rule 54(b), F.R.Civ.P., the court directed that judgment be entered as to the dismissed claims, from which Hub appealed. We reverse.

         For purposes of this appeal certain facts may be taken as true. In November 1969 Hub, a manufacturer, importer and wholesale distributor of flower pots, artificial flowers and related items, designed a unique octagonal planter, which is a stylized container (sometimes called a cache pot) in which plants are grown or placed for decorative purposes. The planters were to be manufactured for Hub by a French concern, ETS Tissot & Cie ("Tissot"), pursuant to an agreement calling for delivery of samples in January 1970. Samples were received as scheduled and Hub thereupon, after placing an initial order with Tissot for 2,260 dozen planters, distributed 60 samples to its salesmen for use in booking orders from its customers and inserted photographs of the planter in its 1970 catalog.

         In the summer of 1970 Tissot, apparently seeing an opportunity to reap a more profitable harvest from seed planted elsewhere, breached its contract with Hub, refused to deliver the planters ordered by Hub, and commenced shipment of identical planters to defendant Royal Brass Corporation ("Royal"), Hub's competitor, which is engaged in selling them in the United States. On August 24, 1970, Hub filed with the Register of Copyrights in Washington, D.C., an application for an exclusive copyright of the octagonal planter as an unpublished original work of art. Certification of registration was thereafter issued to Hub by the Copyright Office.

         On January 20, 1971, Hub filed its complaint containing eight claims against Royal, Jacob Weinberg, its principal officer and stockholder, and Tissot, charging copyright infringement and unfair competition and seeking $1 million damages and injunctive relief. 1 Simultaneously Hub sought a preliminary injunction, which was denied. Royal and Weinberg cross-moved for partial summary judgment dismissing...

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