938 F.2d 26 (2nd Cir. 1991), 1561, Alentino, Ltd. v. Chenson Enterprises, Inc.
|Docket Nº:||1561, Docket 91-7179.|
|Citation:||938 F.2d 26|
|Party Name:||19 U.S.P.Q.2d 1477 ALENTINO, LTD., Nas Import Corp., Plaintiffs, Alentino, Ltd., Plaintiff-Appellant, v. CHENSON ENTERPRISES, INC., Defendant-Appellee, K-World Trading Co., We Care Trading Co., Ltd., Bag-Plus Co., Defendants.|
|Case Date:||June 28, 1991|
|Court:||United States Courts of Appeals, Court of Appeals for the Second Circuit|
Argued May 28, 1991.
Barton Denis Eaton, White Plains, N.Y., for plaintiff-appellant.
D. David Cohen, Ziegler & Robinson, New York City, for defendant-appellee.
Before CARDAMONE and WALKER, Circuit Judges, and McKENNA, District Judge. [*]
Plaintiff Alentino, Ltd. ("Alentino") appeals from a judgment entered in the Southern District of New York (Charles L. Brieant, Judge) dismissing its claims against Chenson Enterprises, Inc. ("Chenson") for infringement of Alentino's copyrighted handbag ornament designs. Because we disagree with the district court's conclusion that Chenson carried its burden of proof on its defense of "accord and satisfaction," we reverse and remand for further proceedings.
In August, 1989, counsel to Alentino sent a letter notifying Chenson, which operates a store selling womens' handbags, that Alentino claimed the copyright to a buckle design used by Chenson on certain handbags. Chenson's counsel wrote back that Chenson would not import or sell the buckle. Then, on Thursday, September 28, 1989, counsel to Alentino hand-delivered a letter to Chenson's counsel offering to give up the right to sue Chenson, "subject to your client's agreement to the following conditions:" (1) Chenson was to recognize Alentino's ownership of the copyright in the buckle design and acknowledge its infringement of that design; (2) Chenson was to report the number of infringing buckles imported and sold by it; and (3) Chenson was to cease and desist by October 2, 1989, from "further shipment, marketing, advertising, promotion, importation, offering for sale and sale of the buckle design or goods bearing same...." The letter then set a two week deadline for return of the executed letter, stating,
In the event that we do not receive an executed copy of this letter within two (2) weeks of receipt thereof, we will assume that your client is no longer interested in amicably resolving this matter and will guide ourselves accordingly.
After the signature line, the letter...
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