MM Business Forms Corporation v. Uarco, Incorporated

• Decision Date: 18 May 1972
• Docket Number: Civ. A. No. 68-208.
• Parties: M. M. BUSINESS FORMS CORPORATION, Plaintiff, v. UARCO, INCORPORATED, Defendant.
• Court: U.S. District Court — Southern District of Ohio

347 F. Supp. 419

M. M. BUSINESS FORMS CORPORATION, Plaintiff, v. UARCO, INCORPORATED, Defendant.

Civ. A. No. 68-208.

United States District Court, S. D. Ohio, E. D.

May 18, 1972.

Jerome R. Cox, Frank H. Foster, Cennamo, Kremblas & Foster, Columbus, Ohio, for plaintiff.

James C. Wood, Hofgren, Wegner, Allen, Stellman & McCord, Chicago, Ill., Eugene J. Mahoney, Mahoney, Miller & Stebens, Columbus, Ohio, for defendant.

OPINION AND ORDER

KINNEARY, District Judge.

This matter is before the Court on the complaint filed by the plaintiff, M. M. Business Forms Corporation, and the answer of the defendant, Uarco, Incorporated. The plaintiff seeks damages and injunctive relief for an alleged infringement of his copyright. Plaintiff also alleges that the defendant is guilty of unfair competition and unfair trade practices.

The jurisdiction of this Court has been invoked under Title 28, U.S.C., § 1338. This matter was tried to the Court.

Pursuant to Rule 52, Federal Rules of Civil Procedure, the Court makes the following findings of fact and conclusions of law.

Findings of Fact

1. The plaintiff, M. M. Business Forms Corporation, is a Michigan corporation. The defendant, Uarco, Incorporated, is an Illinois corporation which is registered to do business in Ohio.

2. Peter Fabbri is the President, Treasurer and principal shareholder of the plaintiff. Fabbri also owns and operates Fabbri T.V. Both businesses are operated by Fabbri at 20519 Joy Road, Detroit, Michigan. Fabbri T.V. has been in existence for approximately fifteen years and is basically a television and radio repair business.

3. M. M. Business Forms Corporation was incorporated on May 9, 1967. The nature of plaintiff's business operations consists of the designing of business forms, especially service forms for television service dealers.

4. Fabbri, as an employee of the plaintiff, prepared for the plaintiff a television service form entitled "Electronic Service Contract." Plaintiff's exhibit 1 is an example of this form. A copyright registration was obtained for the form in the plaintiff's name on May 18, 1967 by Attorney Harvey Covensky (see plaintiff's exhibit 2).

5. The "Electronic Service Contract" is a form to be utilized by television servicemen in the repairing of televisions. The form, plaintiff's exhibit 1, consists of two layers of paper and a bottom layer of cardboard with carbon paper inserted between each of the three layers. Each layer contains the same printing except that the cardboard layer has two additional side flaps to be detached, one to be given to the customer and the other to stay on the piece of equipment.

6. The form is printed so as to be divided into many different spatial areas or blocks wherein the repairman can enter the nature of the repairs performed on the television or the parts installed and the corresponding expense to be incurred by the customer. Various spaces are set out for such items as authorized repairs, miscellaneous services, deferred payment charge, sales tax, subtotal, deposit, balance and special instructions. Any repairs authorized by the customer and performed by the serviceman will be reflected by the appropriate notation on the form. Space for the customer's name and address is provided and a line for the customer's signature. The dealer's name appears at the top right of the form.

7. Additionally, three paragraphs of printing entitled "Guarantee", "Storage Fee Provisions" and "Chattel Mortgage Provision" appear on the form. The "Guarantee" provision provides as follows:

Because of the complex nature of electronic circuitry, predicting or preventing future breakdown is impossible. We cannot guarantee any other parts or services not performed or stated in this contract. All parts used are first quality and guaranteed for ninety days. All "same trouble" complaints must be received by us in 48 hours; otherwise subsequent repairs will be charged for at the regular prevailing rates.

The "Storage Fee Provisions" paragraph provides as follows:

For repairs/services rendered, and value received the undersigned hereby authorizes the dealer to sell or otherwise dispose of the Chattel described above, if not redeemed by the undersigned or his duly authorized agent within sixty (60) days from date service is completed upon said Chattel. Monies received from the sale of said Chattel shall be first applied to the service charges and cost of sale, the balance of said monies shall be paid to the undersigned.

If said Chattel is unsaleable, then the undersigned hereby agrees to pay Dealer a storage fee of Fifty ($.50) Cents per day commencing the 61st day from date service upon said Chattel is completed. Said storage fee is to run until the undersigned has paid Dealer for all services performed upon said Chattel, plus, Storage Fees owing to date of said payment.

The "Chattel Mortgage Provision" provides as follows:

For repairs/services rendered, and value received the undersigned being justly indebted to the Dealer, and for the purpose of securing payment of said debt, hereby grants to Dealer a Security Interest (Chattel Mortgage) in the above property until Customer has paid in cash all amounts owing to said Dealer, Customer shall not misuse, sell, encumber, secrete, or otherwise dispose of said Chattel during the period of payment to Dealer. There is no outstanding Lien, Mortgage or Security Interest of any kind against said Chattel. Upon failure to pay said indebtedness when due, the entire amount owing shall immediately become due and payable, and Dealer may without demand or notice exercise his right to take possession of said Chattel wherever located. Upon default, the secured party shall be entitled to reimbursement from the undersigned for all reasonable legal expenses, including Attorney Fees involved in collection of said indebtedness.

8. Fabbri prepared the Electronic Service Contract over a period of four months during the latter part of the year 1966 and the early part of 1967. Fabbri's initial attempts were made in pencil or pen and numerous revisions were made as is evidenced by plaintiff's exhibits 3 through 6.

9. Fabbri had employed many different types of television service forms in his Fabbri T.V. business prior to the preparation of the Electronic Service Contract. He was familiar with various television service forms because he had examined them in connection with his television repair business and in anticipation of preparing the form presently in issue.

10. During the four month period in which Fabbri worked on completing the Electronic Service Contract, he had in his possession other television service forms that were not of his own authorship but which he obtained from printers or other dealers. Defendant's exhibits A, B and C are three of the television service forms that were familiar to Fabbri and which he had in his possession during the composition of the disputed form. Indeed, Fabbri had used defendant's exhibit A in his television business since 1953.

11. Defendant's exhibit A contains the following provisions:

GUARANTEE:

All work performed by qualified technicians, all materials used in repair of this set are of first quality and guaranteed for a period of ninety days after date of set repair.

GUARANTEE

SET OWNER—Please note that the charges listed on the face of this sales ticket cover this specific repair job only. We guarantee all parts installed by us but do not guarantee or pretend to guarantee other parts in your set. If new repairs become necessary in the future due to other faulty parts in your set, they will be charged for at the regular rates. (See our statement of guarantee on the face of this sales ticket.)

PERFORMANCE

We guarantee that your set will be restored to its normal performance upon completion of our repairs. However, in the event of dissatisfaction with set performance, we must be notified within 48 hours after set is delivered or repaired in the home.

We cannot assume responsibility for over-all set performance if we are not notified within that period because of the possibility of future defects occurring in any one or more of the hundreds of component parts in your set other than those installed by us which are covered by our regular service guarantee.

Defendant's exhibit B contains the following provisions:

TV GUARANTEE

Due to close tolerances, high voltages and high temperatures, all of which break down parts, we cannot guarantee the set as a whole. ONLY THE WORK AND PARTS CHARGED FOR ON INVOICE ARE GUARANTEED. New sets fail at times, so you must expect some parts breakdown after use.

. . . . .

SERVICE GUARANTEE

All work performed by qualified technicians, all materials used in repair of this set are of first quality and guaranteed for a period of ninety days after date of set repair. We guarantee all parts installed by us but do not guarantee or pretend to guarantee other parts in your set. If new repairs become necessary in the future due to other faulty parts in your set, they will be charged for at the regular rates. ANY "SAME TROUBLE COMPLAINTS" MUST BE RECEIVED WITHIN 24 HRS.

Defendant's exhibit C contains the following provision:

For value received, the undersigned jointly and severally promised to pay to the Dealer, or order, the unpaid balance shown on this invoice according to the agreed terms. Title to said Chattel, described hereon by model, make and serial number, is hereby retained, or transferred to Dealer until Customer has paid in cash all amounts owing said Dealer. Customer shall not misuse, secrete, sell, encumber, remove or otherwise dispose of or lose possession of said Chattel. There is no outstanding lien, mortgage, or other encumbrance against said Chattel. Should Customer fail to pay its indebtedness when due, or breach this contract, the entire unpaid balance shall at once become due and payable, and Dealer may without notice or demand, by process of law, or otherwise, take possession of said Chattel wherever

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