Prestige Fabrics, Inc. v. Universal Manufacturing Corp.

• Decision Date: 16 October 1969
• Docket Number: No. 69 Civ. 4098.,69 Civ. 4098.
• Citation: 304 F. Supp. 903
• Parties: PRESTIGE FABRICS, INC., Plaintiff, v. UNIVERSAL MANUFACTURING CORP., Kingly Manufacturing Co., Inc., Great Eastern Textile Printing Company, and Leewin Fabrics Co., Inc., Defendants.
• Court: U.S. District Court — Southern District of New York

304 F. Supp. 903

PRESTIGE FABRICS, INC., Plaintiff, v. UNIVERSAL MANUFACTURING CORP., Kingly Manufacturing Co., Inc., Great Eastern Textile Printing Company, and Leewin Fabrics Co., Inc., Defendants.

No. 69 Civ. 4098.

United States District Court S. D. New York.

October 16, 1969.

Lilling & Siegal, New York City, for plaintiff.

Strassberg & Strassberg, New York City, for defendants.

EDELSTEIN, District Judge.

OPINION

This is an action for copyright infringement and for unfair competition. The plaintiff, Prestige Fabrics, Inc., is engaged in the textile industry as a converter and has obtained a copyright on a fabric design created by it and identified as "Textile Design Pattern No. 1929." The defendants are companies which are also engaged in the textile industry. This motion, brought on by an order to show cause, was made by the plaintiff and seeks a preliminary injunction pursuant to Rule 65, F.R.Civ.P., enjoining the defendants from infringing the above-mentioned copyright by publishing, manufacturing, selling, using, or otherwise disposing of a textile design, or garments made therefrom which is alleged to be a copy of plaintiff's Pattern No. 1929. The plaintiff also petitions this court for an order directing the defendants to deliver up for impounding pending the determination of this action all copies of the allegedly infringing design as well as all garments in their possession or under their control made from the design, together with all of the plates, molds, screens, and other matter necessary for making infringing copies.

Preliminary injunctive relief is, of course, an extraordinary remedy, and the grant of such relief, the application for which is addressed to the sound discretion of the court, can be made only after a consideration of all of the relevant factors. The cases in this circuit have held that a copyright holder is entitled to a preliminary injunction even without a detailed showing of irreparable injury if he is able to make out a prima facie showing of copyright infringement. E.g., American Metropolitan Enterprises of New York, Inc., v. Warner Bros. Records, Inc., 389 F.2d 903 (2d Cir. 1968). This rule, though, emphasizes the requirement that the plaintiff demonstrate to the court the reasonable probability of his ultimate success in the action for infringement. To do this it is incumbent upon the plaintiff to show a substantial similarity between his copyrighted design and the design of the defendant. The issue of substantial similarity is one of fact, the ultimate test being whether an average lay observer would recognize the alleged copy as being an appropriation of the copyrighted work. Concord Fabrics, Inc., v. Marcus Brothers Textile Corp., 409 F.2d 1315 (2d Cir. 1969); Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021 (2d Cir. 1966). Upon the papers and the exhibits presented at the hearing on the instant motion, this court is not persuaded that the plaintiff has satisfied its burden in this regard.

The observable similarities between the two designs are of a surface nature only. Both represent large scale overall floral patterns of approximately the same size, and when printed in a blue, green, and yellow setting, the color compositions appear to be similar. The flowers in both...