HM Kolbe Co. v. Armgus Textile Company , 184 F. Supp. 423 ( 1960 )

184 F.Supp. 423 (1960)

H. M. KOLBE CO., Inc., Plaintiff,
v.
ARMGUS TEXTILE COMPANY, Inc., Happy Cottons, Inc., Bea Rite Frocks, Inc., Beawright, Inc. and Miss Liberty Modes, Inc., Defendants.

United States District Court S. D. New York.

April 28, 1960.

Alan Latman, New York City, for plaintiff.

Samuel Shapiro, New York City, for defendants Armgus Textile Co., Inc. and Happy Cottons, Inc.

THOMAS F. MURPHY, District Judge.

Plaintiff's motion for a preliminary injunction is granted and the same bond previously ordered by Judge Ryan, viz., $10,000, will be sufficient security.

The only issues created by defendants Armgus Textile Company, Inc. and Happy Cottons, Inc. are (a) that plaintiff's design lacks originality and (b) that plaintiff has failed to establish the statutory notice of copyright.

On the issue of originality the presumption is that the copyright is valid. The general statement that the design relates to flowers and is imprinted on batik avoids the issue. We find that the pattern of design is an original reproduction of an original work of art because no evidence is offered to the contrary.

There is no denial of infringement and, even if there was, we find that defendants Armgus and Happy Cottons are in fact infringing plaintiff's copyright by selling "Chinese" copies of the reproduction of such work of art for which the copyright has been secured by plaintiff, and is doing so in competition with plaintiff and at substantially lower prices. Such infringement has caused considerable loss of sales to plaintiff and since the merchandise is highly seasonable in character plaintiff will be irreparably injured.

The only other issue, viz., that plaintiff has printed its notice of copyright on the selvage, is no longer open to question and must as a matter of law be considered as insufficient. See Peter Pan Fabrics, Inc. v. Martin Werner Co., 2 Cir., 1960, 274 F.2d 487.

Motion for temporary injunction is granted.