Lewis v. Kroger Co.

Citation109 F. Supp. 484
Decision Date04 December 1952
Docket NumberCiv. No. 1319,1320.
CourtUnited States District Courts. 4th Circuit. Southern District of West Virginia
PartiesLEWIS v. KROGER CO. LEWIS v. PROCTER & GAMBLE DISTRIBUTING CO.

Eston B. Stephenson, William T. George, Jr., Mrs. A. Carl Carey, Jr., Charleston, W. Va., for plaintiff.

Jackson, Kelly, Morrison & Moxley, Charleston, W. Va. (William T. O'Farrell, Charleston, W. Va.) Wood Herron & Evans, Cincinnati, Ohio (Truman A. Herron, Cincinnati, Ohio) for Kroger Co.

Spilman, Thomas & Battle, Charleston, W. Va. (Howard R. Klostermeyer, Charleston, W. Va.) Coudert Brothers, New York City (Walter R. Barry, New York City) for Procter & Gamble Co.

BEN MOORE, Chief Judge.

These cases are civil actions brought under 17 U.S.C.A. § 101, to recover damages and profits for alleged infringement of a copyright held by plaintiff. Since they present similar questions of fact and law they will be considered together. Any differences that appear will be appropriately noted.

Plaintiff is the author of a copyrighted "print" publication entitled "Tell Why Contest." The "Tell Why Contest" was first printed in the Hurricane Breeze, a newspaper published at Hurricane, West Virginia, on February 7, 1947. The print, a copy of which is made part of the complaints, consists of a full page newspaper advertisement, bearing the following caption in large letters: "Our Hundreds of Readers Throughout Putnam And Surrounding Counties Are Invited in 100 Words Or Less to Tell Why It Pays to Patronize These Business Firms." Cash awards are offered to the winners, and the following rules for the contest are set forth: "To win a prize, write a letter of not more than 100 words, telling why you like to deal with the firms taking part in this contest. It may be the firm's service or the quality of their merchandise. Write as many letters as you like. Each letter must be about one firm or product only. Mail your letter to contest editor, The Hurricane Breeze, Hurricane, W. Va. Ads will be published February 7, 14, and 21st. Letters must be in by February 25. Winners and best letters will be published February 28th."

Beneath the caption appear individual advertisements of sixteen firms or businesses in and about Hurricane, W. Va. These have little if anything in common, ranging from a feed store to a bank, from a beauty parlor to a jeweler.

Plaintiff alleges that defendants have infringed upon his copyright by conducting similar contests. Appended to the complaints are copies of newspaper advertisements and contest entry blanks which plaintiff claims have been copied, in form and substance, from his print. At plaintiff's request, defendants have filed copies representative of other contests conducted by them in each of the past five years. These exhibits are essentially similar to those which plaintiff has appended to his complaints and which he claims have infringed upon his print. Therefore, for the purpose of this decision, while all exhibits have been inspected, specific consideration is given only to those originally made a part of the complaints.

Exhibited with one of the complaints is a newspaper advertisement by the Kroger Company announcing a "Get Acquainted Contest." The reader is invited to obtain his free entry blank at a Kroger store. A number of cash prizes are listed, together with the following statement: "It's Easy To Win: All You Do is Write 25 Words or Less On `What I Like Best About My Kroger Store.'" The remainder of the advertisement mentions numerous items of merchandise, giving prices, which were being sold at that time in the store. A copy of the official entry blank, obtained at the store, contains the six rules of the contest, in addition to a space in which the entrant is expected to tell what he likes best about his Kroger store. In order to qualify for a double prize, an entrant must attach to his entry blank the top of a Kroger coffee bag.

The other complaint exhibits a newspaper advertisement inviting the reader to get his free entry blank at a Kroger store to enter a series of contests sponsored by Procter & Gamble, featuring Procter & Gamble products. The entry blank in one of the contests enumerates eight instructions, and the entrant is required to complete the following sentence in 25 additional words or less: "I keep ________ (choose one: Ivory Soap, Joy, Spic and Span) on hand because _______." In another contest the contestant is asked to complete the sentence, "I keep ________ (choose one: Dreft, Camay, Oxydol) on hand because: _______." The various prizes offered to the winners consist of cash awards, automobiles and expense-free vacations. An entrant is required to enclose a wrapper or box top of one of the named products with his entry blank.

Defendants have moved to dismiss the complaints under Rule 12(b) (6), Rules of Civil Procedure, 28 U.S.C.A., on the ground that they fail to state a claim upon which relief can be granted. Plaintiff opposes the motions, contending that since his entire case is not before the court it would be improper to dismiss the case at this time, even though the court may conclude a claim is not stated on the face of the pleadings. This contention is predicated on the theory that the exhibits appended to the complaints are merely illustrations of infringements which may have occurred in other contests conducted by defendants in the past five years. Since defendants have filed copies of representative contests conducted by them in the past five years, in accordance with plaintiff's request, I find this argument without merit. The court has before it copies of plaintiff's copyrighted print as well as copies of defendants' contests. These are all the data necessary to decide the issue of...

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6 cases
  • Doran v. Sunset House Distributing Corp.
    • United States
    • U.S. District Court — Southern District of California
    • September 20, 1961
    ...Peter Pan Fabrics, Inc. v. Acadia Company, D.C.S.D.N.Y.1959, 173 F.Supp. 292, affirmed 2 Cir., 1960, 274 F.2d 487; Lewis v. Kroger Co., D.C.S.D.W.Va.1952, 109 F.Supp. 484; Allegrini v. De Angelis, D.C.E.D.Pa.1944, 59 F.Supp. 248, affirmed 3 Cir., 1945, 149 F.2d Applying this test to the fac......
  • Jacobsen v. Deseret Book Co., 01-4027.
    • United States
    • U.S. Court of Appeals — Tenth Circuit
    • April 19, 2002
    ...to consider these works, the district court properly considered the work in ruling on the 12(b)(6) motion.3 See Lewis v. Kroger Co., 109 F.Supp. 484, at 486 (S.D.W.Va.1952) (considering original and allegedly copied material in ruling on 12(b)(6) motion). When a district court considers the......
  • Tralins v. Kaiser Aluminum & Chemical Corp.
    • United States
    • U.S. District Court — District of Maryland
    • March 31, 1958
    ...140 F.Supp. 707, 708; Dorsey v. Old Surety Life Insurance Co., 10 Cir., 1938, 98 F.2d 872, 873, 119 A.L.R. 1250; Lewis v. Kroger Company, D.C.W.Va.1952, 109 F.Supp. 484, 486. Whether the court should first "ascertain what had been appropriated, if anything, and then decide whether the appro......
  • Barton Candy Corp. v. Tell Chocolate Novelties Corp.
    • United States
    • U.S. District Court — Eastern District of New York
    • November 18, 1959
    ...the idea itself." The appropriation of an idea, once expressed, will not constitute an infringement of a copyright. Lewis v. Kroger Co., D.C.W.Va.1952, 109 F.Supp. 484. Nor is there any infringement in the development of a general idea appropriated from another work if the two works bear no......
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