Gardenia Flowers, Inc. v. Joseph Markovits, Inc.
| Decision Date | 26 February 1968 |
| Docket Number | No. 62 Civil 1713.,62 Civil 1713. |
| Citation | 280 F. Supp. 776 |
| Parties | GARDENIA FLOWERS, INC., Plaintiff, v. JOSEPH MARKOVITS, INC., Defendant. |
| Court | U.S. District Court — Southern District of New York |
Fink & Pavia, New York City, for plaintiff, Jerome Bauer, Mineola, N. Y., of counsel.
Julian T. Abeles, New York City, for defendant, John S. Clark, Robert C. Osterberg, New York City, of counsel.
OPINION, FINDINGS OF FACT AND CONCLUSIONS OF LAW
Plaintiff, Gardenia Flowers, Inc. ("Gardenia"), alleges infringement of seven copyrighted artificial flower corsages and a claim of unfair competition.
Both liability and damages on the copyright infringement claim were submitted; on the unfair competition claim, liability was tried but any question of resulting damages thereon was reserved.
The complaint alleges seven causes of action to the effect that plaintiff is the proprietor of a copyright in a specified "original work of art," to wit, an artificial corsage, and that defendant, Joseph Markovits, Inc. ("Markovits"), "in infringement of said copyright * * * has made or caused to be made, published and offered for sale copies of the copyrighted work of art," copyrights in suit being dated and identified as follows:
Artificial Single Rose Corsage — Sep. 26, 1961 Class G, No. Gp 30585 Artificial Double Gardenia Corsage — Sep. 26, 1961 Class G, No. Gp 30587 Artificial Single Gardenia Corsage — Sep. 26, 1961 Class G, No. Gp 30589; Artificial Daisy Corsage — Sep. 26, 1961, Class G, No. Gp 30795; Artificial Rosebud Corsage — Sep. 26, 1961, Class G, No. Gp 30797; Artificial Carnation Corsage — Sep. 26, 1961, Class G, No. Gp 30798; Artificial Single Camellia Corsage — Sep. 26, 1961, Class G, No. Gp 30588.
In an eighth cause of action, it is alleged in substance that Markovits "contacted plaintiff's original manufacturer of each of said works of art and induced such manufacturer to terminate its business relationship with plaintiff in favor of" Markovits; that infringing copies of plaintiff's said "works of art are being made" for Markovits "from the same molds as plaintiff's copyrighted works were originally made," and are being sold by Markovits without plaintiff's copyright notice; that "such activities * * * has sic resulted in the confusion of government agencies, thereby preventing their proper application of the law to the benefit and protection of the plaintiff;" that the "infringement of plaintiff's copyrighted works of art" has "caused damage to plaintiff by confusing the trade, detracting from plaintiff's reputation, and loss of sales, thereby constituting acts of unfair competition with plaintiff;" that plaintiff's "copyrighted works of art are well known in the trade as having originated with plaintiff" and that the "copying" by Markovits "results in confusion in the trade and of the public, such that the trade and the public believe and will believe that * * *" the "infringing articles originated with plaintiff, thus damaging plaintiff and creating a loss of business"; and that Markovits' acts "of copying; and its deliberate attempt to trade upon plaintiff's good will, its reproduction of plaintiff's originally created works of art, are acts of copyright infringement and unfair competition * * *."
Plaintiff bases jurisdiction upon the ground that the Copyright Law of the United States is directly involved in the first seven causes of action and upon the ground that the eighth cause of action asserts a claim of unfair competition as a substantial and related claim under the Copyright Law.
After hearing the testimony of the parties, examining the exhibits, the pleadings and the proposed findings of fact and conclusions of law submitted by counsel, this court makes the following Findings of Fact and Conclusions of Law:
FINDINGS OF FACT
1. The court has jurisdiction of the subject matter and of the parties in this action.
2. Plaintiff and defendant are corporations incorporated under the laws of the State of New York, engaged in the
business of importing and distributing artificial flowers.
3. In June 1961, Snyder, president of Gardenia, visited the factory of Italspring, a manufacturer of artificial flowers located in Milan, Italy; examined certain sample corsages previously manufactured by Italspring; furnished Italspring with other samples Snyder had obtained from various sources and requested Italspring to supply him with samples of the artificial corsages later involved in this suit. None of the corsages involved in this suit (Pl. Ex. 3-9) were created by the skill, labor or judgment of Snyder (220, 237-242;1 Deft. Ex. H, dep. of Termini, pp. 1-4; Pl. Ex. 31).
4. Snyder organized the plaintiff company twenty-two years ago. Before that time he had worked in the artificial flower industry for nineteen years (41, 42).
5. On or about June 20, 1961, plaintiff placed an order with Italspring for various items, among them copies of the artificial corsages involved in this suit, and in a letter dated July 5, 1961, instructed Italspring that every such item ordered by Gardenia should carry a notice of copyright in Gardenia's name, irrespective of the authorship of such items (265-268; Pl. Ex. 30, 31).
6. During Snyder's stay in Milan, Italy in June 1961, and at his request, Italspring agreed to invoice shipments of artificial corsages to plaintiff at 70% of the actual price thereof for the purpose of allowing plaintiff to evade payment of customs duty based on true value .
7. Plaintiff's president brought samples of the corsages he ordered from Italspring to New York in July 1961. After his arrival, plaintiff packaged these samples in acetate boxes with bows attached (345-347; Pl. Ex. 40).
8. Customers to whom the samples were shown were sold substantial numbers of corsages by plaintiff in July 1961. A sale of 5,000 dozen of the corsages had been consummated by July 5, 1961 (140, 376, 377; Pl. Ex. 31).
9. At the time of this first publication of the corsages, a purported copyright notice appeared on paper tags through which the stems of the corsages were slipped (253, 254, 340, 341, 378; Pl. Proposed Finding of Fact No. 18).
10. On September 26, 1961, plaintiff obtained Certificates of Registration for artificial corsages as follows:
Artificial Single Rose Corsage, Class G, No. Gp 30585 (Pl. Ex. 3); Artificial Double Gardenia Corsage, Class G, No. Gp 30587 (Pl. Ex. 4); Artificial Single Gardenia Corsage, Class G, No. Gp 30589 (Pl. Ex. 5); Artificial Daisy Corsage, Class G, No. Gp 30795 (Pl. Ex. 6); Artificial Rosebud Corsage, Class G, No. Gp 30797 (Pl. Ex. 7); Artificial Carnation Corsage, Class G, No. Gp 30798 (Pl. Ex. 8); Artificial Single Camellia Corsage, Class G, No. Gp 30588 (Pl. Ex. 9).
11. In each of the applications for registration of claim to United States copyright in said artificial corsages filed by plaintiff in the Copyright Office, it is stated that plaintiff is the author thereof, that the work, the subject of the claim, was first published on July 7, 1961 in the United States; but said applications do not reveal any previous publication of component parts thereof or the utilization of old matter therein (Pl. Ex. 3-9).
12. Plaintiff's copyright claim in each of said artificial corsages is confined to the arrangement of the flowers therein, and it does not cover the individual component parts thereof (65, 66).
13. The artificial corsages involved in this case consisted of arrangements of flowers which were common and traditional in the flower industry at the time of plaintiff's claim of copyright. The arrangements in the corsages were old styles, lacking in both creativity and originality, and plaintiff's president had been aware of the existence of such arrangements in natural and cloth corsages prior to the time of its claimed copyrights (86, 87, 227-230, 233-237, 322-344).
14. Italspring ceased doing business with plaintiff in October 1961 because it preferred not to risk the consequences of performing its agreement with plaintiff to invoice shipments of the artificial floral corsages at 70% of the true value thereof (Deft. Ex. H, dep. of Termini, p. 5).
15. Defendant did not order any plastic artificial corsages from Italspring until January 22, 1962, approximately three months after Italspring ceased doing business with plaintiff .
16. Some time prior to May 1962, defendant sold to Woolworth corsages it purchased from Italspring which were similar to those ordered from Italspring by plaintiff. Certain of these corsages were purchased from Woolworth by employees of plaintiff (355-357, 369-375; Pl. Ex. 25-28).
17. Some of the corsages purchased by plaintiff's employees from Woolworth contained defendant's label, and some did not (361, 362, 372, 374).
18. Imprints of plaintiff's name had been scraped from the stems of the corsages purchased by plaintiff's employees, and the prior existence of such imprints is noticeable only upon extremely close examination (Pl. Ex. 25-28).
19. Plaintiff has failed to prove by a fair preponderance of the credible evidence that defendant misrepresented any of the corsages sold to be the goods of plaintiff.
20. The plaintiff has failed to prove by a fair preponderance of the credible evidence that (1) it had any exclusive agreement with Italspring to supply Gardenia with the artificial corsages which are the subject matter of this suit (Pl. Ex. 36, 44; 123-128, 146, 147, 150); or (2) that defendant had any knowledge of any exclusive contract or agreement of Italspring with plaintiff (144, 145, 146, 147, 150, 389); or (3) that defendant induced Italspring to cease to sell to plaintiff (383-390).
21. Plaintiff has failed to prove by a fair preponderance of the credible evidence that defendant committed any acts of unfair competition in respect to the corsages at issue here.
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