Geisel v. Poynter Products Inc.
| Decision Date | 09 April 1968 |
| Docket Number | No. 68 Civ. 997.,68 Civ. 997. |
| Citation | 283 F. Supp. 261 |
| Parties | Theodor Seuss GEISEL, Plaintiff, v. POYNTER PRODUCTS INC., Alabe Crafts, Inc., Linder, Nathan & Heide, Inc.. and Liberty Library Corporation, Defendants. |
| Court | U.S. District Court — Southern District of New York |
COPYRIGHT MATERIAL OMITTED
White & Case, New York City, for plaintiff; William D. Conwell, New York City, of counsel.
Cowan, Liebowitz & Latman, New York City, for defendants; Alan Latman, Arthur J. Greenbaum, New York City, of counsel.
The within motion for a preliminary injunction is granted. This opinion sets forth the findings of fact and conclusions of law which are the grounds of the Court's action (Fed.R.Civ.P. 52(a)) and the reasons for the granting of the injunction pendente lite (Fed.R.Civ.P. 65(a) (2)).
The complaint pleads five causes of action. The plaintiff's claims are based on five different "theories": (1) violation of the Lanham Act, 15 U.S.C.A. § 1125; (2) violation of New York General Business Law, McKinney's Consol.Laws, c. 20 § 368-d; (3) violation of New York Civil Rights Law, McKinney's Consol. Laws, c. 6 § 51; (4) commercial slander; and (5) prima facie tort. Plaintiff seeks $10,000,000. in punitive and compensatory damages and a permanent injunction.
1. Plaintiff, Theodor Seuss Geisel (hereafter Dr. Seuss), is a resident of La Jolla, California. He is a well known artist and author.
2. Defendant Poynter Products Inc. is an Ohio corporation, having its principal place of business as 7 Arcadia Place, Cincinnati, Ohio. It is engaged in the business of manufacturing and selling toys and novelties.
3. Defendant Alabe Crafts, Inc. (hereafter Alabe) is an Ohio corporation, having its principal place of business at 1632 Gest Street in Cincinnati, Ohio. It distributes the products of Poynter Products Inc.
4. Liberty Library Corporation (hereafter Liberty) is successor to the assets of Liberty Publishing Corporation, publisher of the presently defunct Liberty Magazine. Liberty is a New York corporation with its principal place of business at 353 West 57th Street, New York, New York.
5. Defendant Linder, Nathan & Heide, Inc. (hereafter Linder) is a New York corporation, having its principal place of business at 200 Fifth Avenue, New York, New York. It is engaged in selling toys and novelties to retailers. It acts as manufacturers' representative in New York City for defendants Poynter, Alabe and others.
6. Plaintiff is a well known and highly respected artist-author who has written and illustrated a large number of books and articles including (in chronological order) "And to Think that I Saw it on Mulberry Street" (1937), "The Seven Lady Godivas" (1937), "The 500 Hats of Bartholomew Cubbins" (1938), "The King's Stilts" (1939), "Horton Hatches the Egg" (1940), "McElligot's Pool" (1947), "Thidwick the Big-Hearted Moose" (1948), "Bartholomew and the Oobleck" (1949), "If I Ran the Zoo" (1950), "Scrambled Eggs Super" (1953), "Horton Hears a Who" (1954), "On Beyond Zebra" (1955), "If I Ran the Circus" (1956), "How the Grinch Stole Christmas" (1957), "The Cat in the Hat" (1957), "The Cat in the Hat Comes Back" (1958), "Yertle the Turtle" (1958), "Happy Birthday" (1959), "One Fish Two Fish Red Fish Blue Fish" (1960), "Green Eggs and Ham" (1960), "The Sneetches and Other Stories" (1961), "Dr. Seuss's Sleep Bock" (1962), "Hop on Pop" (1963), "Dr. Seuss's ABC Book" (1963), "I Had Trouble in Getting to Solla Sollew" (1965) and "Fox in Socks" (1965).
7. Plaintiff's books feature imaginative and whimsical creatures created by plaintiff and drawn in his unique readily recognizable style. They are carefully drawn, colored and printed to convey a delightfully humorous and lovable aura. These creatures are the foundation of the success of plaintiff's works and strike a responsive chord in the hearts and imaginations of children everywhere.
8. Plaintiff's books are published by Random House, Inc. and millions of copies have been sold throughout the world. His books have become children's classics.
9. Plaintiff created and originated the movie cartoon character, "Gerald McBoing-Boing" for which he received an Academy Award in 1951. Plaintiff's books, cartoons and drawings have been the subject of many articles including: "The Wonderful World of Dr. Seuss," Saturday Evening Post, July 6, 1957; "The Significance of Dr. Seuss," New York Times Sunday Book Review, May 11, 1958; "Dr. Seuss Talks to Parents," Parent's Magazine, November 1960; "The Miracle of Dr. Seuss," Good Housekeeping, December 1960; "Profile on Dr. Seuss," The New Yorker, December 17, 1960; "Muse on the Loose is Dr. Seuss," Los Angeles Times, January 5, 1964; "Kingdom of Seuss," Christian Science Monitor, January 29, 1964; "The Nonsensical World of Dr. Seuss," McCalls, November 1964; "Zoo's Who: Dr. Seuss, That's Who," Coronet, December 1964.
10. Some of plaintiff's books have been recorded by Decca and Columbia Records. Plaintiff has appeared on numerous television and radio broadcasts. His book entitled "How the Grinch Stole Christmas" was produced on nationwide television shows on December 18, 1966 and December 17, 1967 over the facilities of the Columbia Broadcasting System Television network.
11. A large number of Dr. Seuss' original drawings and manuscripts are in a special exhibition in the Special Collections Division of the Library at the University of California, Los Angeles. Plaintiff's works, advertised on posters and hand-out brochures as "How the Grinch Stole Christmas" were exhibited at an admission-free four day children's Jamboree holiday program at the La Jolla Museum of Art.
12. Plaintiff's cartoons have also been used as educational material in many fields such as driver education and children's reading. His books are contained in a large number of school libraries throughout the country. Plaintiff is listed in "Who's Who in America" and he was awarded an honorary doctorate of Humane Letters from Dartmouth College in 1956.
13. Plaintiff's books have been the basis for the nationwide "Grolier Society Beginner Book Club" a division of the Grolier Society, which has more than one hundred thousand members.
14. Plaintiff is the President of the Beginner Book Division of Random House, Inc.
15. The trade name "Dr. Seuss" is of great commercial value and is a substantial aid in the sale of any product for children. The name "Dr. Seuss" in a distinctive form of type is placed prominently on the cover of plaintiff's many well known books and in advertising and promotional material relating to his many books, records, movies and television programs. "Dr. Seuss" has been plaintiff's pseudonym and trade name since about 1927 or 1928.
16. In 1932 before Dr. Seuss began to write his highly successful children's books, he prepared for publication in the now defunct Liberty Magazine a series of short illustrated one paragraph essays or notes for adult consumption.1 A number of the illustrations for these humorous adult pieces contained whimsical imaginative creatures which bore humorous names keyed to the text, e. g., "The Put-Your-Nose-Here Terrier," "The Tapered-Tailed Dingo" etc.
17. These illustrated essays or notes were published in issue of Liberty Magazine from June through December 1932.
18. Liberty Publishing Corporation which published Liberty Magazine was dissolved and many of its assets were sold or transferred to defendant Liberty Library.
19. Sometime in 1966 or 1967, Liberty Library entered into a contract with defendant Poynter authorizing Poynter to manufacture and sell dolls or toys based on the illustrations for the 1932 humorous essays published in Liberty Magazine and to use the name "Dr. Seuss" in connection with such products.
20. Poynter thereupon entered into an agreement with a toy manufacturer in Japan for the manufacture of a set of small toys or dolls derived from creatures which appeared in the 1932 illustrations. Liberty was paid for entering into such agreement and participates in the profits from the sale of any such dolls or toys.
21. Defendants have caused a number of models of these dolls to be manufactured and are advertising, selling and offering them for sale in New York and elsewhere. These dolls deviate substantially and materially from the 1932 illustrations.
22. Plaintiff did not see these dolls until they were offered for sale. Plaintiff did not create, design, manufacture, produce, authorize or approve any of these dolls. Plaintiff did not authorize or permit the use of his trade name "Dr. Seuss" in connection with any of these dolls for the purpose or effect of representing that any of these dolls have been created, designed, manufactured, produced, authorized or approved by him.
23. Defendants Poynter, Alabe and Linder with the approval and agreement of Liberty are falsely representing these dolls as the product of Dr. Seuss, which they are not, or as having been approved by Dr. Seuss, when they were not.
24. The dolls are sold in an "Eye Poppin' Counter Display" characterized as "Dr. Seuss Assortment Display No. P-340". They are represented in the display carton as being "From the Wonderful World of Dr. Seuss." The display carton itself groups all the dolls and calls them "Dr. Seuss' Merry Menagerie."
25. The name "Dr. Seuss" as printed in large and prominent type on defendants' sales materials reproduces exactly the distinctive lettering and form used for that trade name of plaintiff when it is affixed to genuine Dr. Seuss products.
26. Each doll is prominently advertised as being sold "complete with a Dr Seuss Tag." Around the neck of each doll is a tag which states: "This is my ____________ from Dr. Seuss Merry Menagerie." you name it The tag also states "From the Wonderful World of Dr. Seuss."
27. The circular tag tied around each doll's neck contains the name "Dr. Seuss" on both sides in such prominent type that the name is all that can be read from a distance...
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