IDEAL TOY CORPORATION v. Adanta Novelties Corp.

• Decision Date: 22 November 1963
• Citation: 223 F. Supp. 866
• Parties: IDEAL TOY CORPORATION, Plaintiff, v. ADANTA NOVELTIES CORP., Ella Singer and Gustav Dreyfus, Defendants.
• Court: U.S. District Court — Southern District of New York

223 F. Supp. 866

IDEAL TOY CORPORATION, Plaintiff, v. ADANTA NOVELTIES CORP., Ella Singer and Gustav Dreyfus, Defendants.

United States District Court S. D. New York.

November 22, 1963.

Amster & Levy, New York City, for plaintiff.

H. Jordan Lee, New York City, for defendants; Michael F. Mayer, New York City, of counsel.

WYATT, District Judge.

This is an application for a preliminary injunction in an action for infringement of copyright (17 U.S.C. § 101) and for unfair competition. Jurisdiction of both claims appears from 28 U.S.C. § 1338(a) and (b).

The competing articles are dolls, in respect of which the most recent learning seems to be in Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623 (2d Cir. 1962).

The same plaintiff ("Ideal") is plaintiff in the case at bar. It has been making and selling dolls for over 50 years.

In March 1962, plaintiff offered for sale and thus "published" a new 12 inch doll (girl) to which it affixed notice of copyright on the shoulder blades and just below the hairline on the neck at back.

The claim to copyright was registered much later in two classes. The Register of Copyrights issued two certificates of registration. One was in the class "works of art; models or designs for works of art" (17 U.S.C. § 5(g)); apparently this was the doll itself, with hair and without clothing. The other was in the class "prints and pictorial illustrations including prints or labels used for articles of merchandise" (17 U.S.C. § 5(k)); what was claimed and deposited in this class cannot be determined from the material submitted. As to each certificate the date of publication was given as March 1, 1962; the date of receipt of application and copies was shown as April 15, 1963; the "title" in each certificate was given as "Tammy".

Beyond question the "Tammy" doll as merchandised by plaintiff was an outstanding success. It became widely and favorably known. It represents a "teen age" girl and has always been sold dressed in a "basic outfit", which is a distinctive blue, white trimmed, short sleeved, turtle neck playsuit with white tennis shoes; the playsuit has shorts instead of a skirt. The Tammy doll so dressed has been sold in a rectangular box, with illustrations, name, and descriptive or advertising material on the box. The most prominent color is light purple on which appears two scroll borders of a running wavy black or blue line.

Plaintiff has also offered separately a variety of other clothes and accessories for use with the Tammy doll. Plaintiff has also created a family of dolls for Tammy — brothers, sisters, mother and father. Plaintiff devotes a separate catalog exclusively to "Tammy and her family of dolls".

It appears without contradiction that in 1962 Ideal spent over $200,000 in advertising and promoting the Tammy doll; we are told that in 1963 such spending will be above $1,250,000. Television has been used extensively; advertising has been in trade magazines and elsewhere; other promotional material has been employed.

In 1962, more than 500,000 Tammy dolls were sold, in dollar volume above $1,500,000. In eight months of 1963, more than 1,250,000 Tammy dolls were sold, in dollar volume above $3,750,000. Plaintiff has published a newsletter called "Tammy Topics" for children who are present or potential purchasers. There has been much correspondence with children and their mothers about "Tammy".

Plaintiff shows a reasonable probability that it can establish at trial not only that the Tammy doll has become widely and favorably known but that it has become identified with, and as made by, the plaintiff.

Defendant Adanta Novelties Corp. ("Adanta") is said to be controlled by the individual defendants but they need not be referred to herein. Adanta is sometimes here called "defendant".

Defendant is making and selling a doll of the same sort as Tammy but in a cheaper price range. When plaintiff learned of the dolls of defendant does not appear. It is also not clear when defendant first began making its dolls. The affidavit of Singer for Adanta states that "it was in the early months of 1962". Theoretically this could be either before or after the "publication" of Tammy on March 1, 1962. There is no way to establish from this record — except so far as may be done by comparison of the dolls themselves — whether the doll of Adanta was created from the example of the Tammy doll. A comparison of the dolls as dressed leads to the conclusion that defendant began making its dolls after the Tammy doll was on the market and with knowledge of the Tammy doll.

The doll of Adanta has no name. It is sold as part of a "Mix and Match Set" in a large square box, the top being of a clear material so that the contents can be plainly seen. The bottom of the box (seen through the clear material), the sides of the box and the lettering are all in a light purple color which, while not of exactly the same shade as that of the Tammy boxes, is so close as to seem the same at a quick glance. The similarity of the colors, considering the wide range available to defendant, leads to the strong suspicion of deliberate imitation. This is reinforced by the fact that defendant superimposes on the light purple background a line with scroll effect which resembles the running wavy line in the light purple background on the Tammy box.

The defendant's doll is roughly the same size as Tammy and is sold in exactly the same "basic outfit" playsuit as plaintiff uses in selling Tammy and with the same white tennis shoes. While some of the doll suits of defendant are of a different color from that of Tammy, many of the dolls are sold by defendant with a playsuit of exactly the same color as Tammy's.

The "Mix and Match set" as sold by defendant contains not only the doll dressed in a playsuit but also other items of clothing and accessories so displayed as to be seen through the clear top. Unlike Tammy whose hair is permanently fixed to her head, the dolls of defendant have no hair and are sold with three detachable wigs; some of the wigs of defendant are of the same color as the hair of Tammy. When its Mix and Match Sets leave defendant, apparently one of the wigs is on the doll; the combination could be the same blue playsuit and hair as are found on Tammy.

So far as the action is based on copyright infringement, the comparison to determine similarity must be between the Tammy doll unclothed (marked defendant's exhibit "5" at argument) and the Adanta doll unclothed (marked defendant's ...