Gelles-Widmer Company v. Milton Bradley Company, 13656

• Decision Date: 12 February 1963
• Docket Number: No. 13656,13657.,13656
• Citation: 313 F.2d 143
• Parties: The GELLES-WIDMER COMPANY, Plaintiff-Appellee, v. MILTON BRADLEY COMPANY and A. C. McClurg & Company, Defendants-Appellants. The GELLES-WIDMER COMPANY, Plaintiff-Appellant, v. MILTON BRADLEY COMPANY and A. C. McClurg & Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

313 F.2d 143 (1963)

The GELLES-WIDMER COMPANY, Plaintiff-Appellee, v. MILTON BRADLEY COMPANY and A. C. McClurg & Company, Defendants-Appellants.

The GELLES-WIDMER COMPANY, Plaintiff-Appellant, v. MILTON BRADLEY COMPANY and A. C. McClurg & Company, Defendants-Appellees.

Nos. 13656, 13657.

United States Court of Appeals Seventh Circuit.

January 11, 1963.

Rehearing Denied February 12, 1963.

Edward A. Haight, W. J. Marshall, Jr., John W. Hofeldt, Chicago, Ill., Mark R. Gale, St. Louis, Mo., for Gelles-Widmer Co.

Sidney Neuman, B. Gordon Aller, James R. Dowdall, Chicago, Ill., for Milton Bradley Co.

Before DUFFY, SCHNACKENBERG and KILEY, Circuit Judges.

DUFFY, Circuit Judge.

Plaintiff sues for infringement of five copyrights for educational type flash cards and also for unfair competition. The District Court upheld the validity of the copyrights and held that defendants had infringed same. The Court denied plaintiff's claim of unfair competition.

Defendants have appealed from that part of the judgment relating to validity of the copyrights. Plaintiff has appealed from that part of the judgment adverse to it on the question of unfair competition.

Five copyrights, all relating to flash cards, are in suit; four of them deal with the four arithmetical subjects, i. e., addition, subtraction, multiplication and division. The fifth relates to the twenty-six letters of the alphabet.

Plaintiff, whose principal place of business is in St. Louis, Missouri, was organized in 1955. Since that date, it has been engaged in the production and marketing of educational games and materials designed and marketed for the use of school children in the home and in the school.

Defendant, Milton Bradley Company, a Massachusetts corporation, was organized in 1860. For more than a century it has been engaged in the production and marketing of an extensive line of educational materials and children's games for use in the home and in the schools.

Defendant, A. C. McClurg & Company, is an Illinois corporation. It has long been a wholesale distributor to retail stores of children's games and children's activity materials. It has been a distributor for Milton Bradley Company since 1918. The only relationship between the two companies is that of buyer and seller.

The term "flash card" is derived from the manner in which the cards are used. In actual practice, a single card is usually flashed before a child's eyes. A flash card has been defined¹ as "A card bearing words, numbers, or pictures, to be shown in school drills to stimulate observation, or as an aid in teaching reading, arithmetic. * * *" Flash cards have been used in the standardized manner in the home and in the school, and in playing games for more than half a century.

The basic number combinations imprinted on all arithmetical cards are standard. There is shown combinations of the numbers 0 to 9. Insofar as addition, subtraction and multiplication are concerned, there are only 100 ways in which these numbers can be combined. Only 81 number combinations are possible in division, since there can be no division by zero.

Initially, plaintiff marketed a line of educational materials known as the Dolch games.² These were distributed to schools and teachers. Plaintiff then selected certain of its units and by revision and providing proper instructions for parents, it was able to sell these materials in the retail market. A second distribution channel utilized by plaintiff was wholesale toy outlets.

After plaintiff had developed its retail market for the Dolch educational type materials during 1955 and 1956, defendant Milton Bradley took note of the new market outlet as is shown by its bulletin dated January 14, 1957, to its branch managers, educational salesmen and game salesmen. It directed its educational salesmen to call on department and book stores so that they might obtain their share of this "new and potentially greater share for our educational teaching aids."

For many years, Milton Bradley had marketed a certain type of flash card. So had others in the school supply industry. However, the toy and game industry had never included a flash card classification. Due in part, at least, to plaintiff's extensive promotion, in 1959 the toy industry, for the first time, classified "flash cards" as an individual toy item.

In 1957, plaintiff originated and developed the several educational works which are the subject of the five copyrights here in suit. These sets were designed for use of children in the home as an aid in learning addition, subtraction, multiplication, division and the alphabet.

In addition to the flash cards per se, containing the arithmetic fact problems, plaintiff drafted testing sheets which could be used for determining the development and progress the child was making. It also drafted explanations and instructions for the child and the parent, explaining the proper use of both the flash cards and the progress testing sheets.

In March 1958, plaintiff added two new series of flash cards to its Dolch line. Plaintiff undertook an extensive promotional campaign. In the first fifteen months' period, approximately one million sets of the new flash cards were sold.

The trial in the District Court extended over two weeks. Eight witnesses testified before the Court and others by deposition. Each party introduced over one hundred physical and documentary exhibits. After the filing of briefs and full oral argument, the trial court entered detailed findings of fact and conclusions of law.

A very brief summary of such findings is, plaintiff was the author of the copyrighted educational works comprising the five individual sets of flash cards; plaintiff's educational works comprise copyrightable subject matter; defendant Bradley infringed plaintiff's copyrights by photographing plaintiff's card sets, by copying and adopting plaintiff's sequence arrangements and by substantially plagiarizing plaintiff's instructions and directions, and that defendant's copying and plagiarizing was wilful and deliberate.

Defendant Milton Bradley's vice president, Taft, was in charge of research and development for that company. He designed the original "double value" flash cards in 1953, and redesigned same in 1957. By March 1959 Taft had photographed each of plaintiff's copyrighted sets. He photographically reduced the test sheets and copied and adopted the problem numbers and sequence arrangement of the cards in plaintiff's copyrighted sets. There was a substantial copying of the instructions contained in plaintiff's sets. It should be noted that Taft did not follow any of Milton Bradley's material nor use any common source material.

The only explanation by Taft for such procedure was that he was in a hurry to get out the new sets which were to sell for one dollar each for the Toy Fair held in March 1959, and that the kind of numbers he...