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PLATT & MUNK CO. v. PLAYMORE

September 12, 1962

The PLATT & MUNK CO., Inc., Plaintiff,
v.
PLAYMORE, INC., Lederer Industries, Inc. and J. C. Boyan Associates, Inc., Defendants



The opinion of the court was delivered by: COOPER

This motion is a companion motion to that made in Platt & Munk Co., Inc. v. Republic Graphics, Inc., 62 Civ. 1003, D.C., 218 F.Supp. 262. In the case at bar, plaintiff similarly seeks preliminary injunctive relief to restrain defendants from infringing plaintiff's copyrights by selling goods which bear plaintiff's trademarks and copyright notices. Motion granted.

It appears that defendants are in possession of sizeable quantities of plaintiff's copyrighted and trademarked works which they purchased from Republic at an unauthorized sale of such merchandise.

 Manifestly, the grant of an exclusive copyright by statute (17 U.S.C.A. 1(a)) confers on plaintiff an exclusive right to vend the copyrighted work and implies the prohibition of unauthorized sales. Since, under the present circumstances, there has been no authorized first sale or transfer of title by the copyright proprietor, infringement proceedings may properly be had against defendants for interference with plaintiff's exclusive right to vend the copyrighted works. See F. W. Woolworth Co. v. Contemporary Arts, Inc., 344 U.S. 228, 229, 73 S. Ct. 222, 97 L. Ed. 276 (1952); Platt & Munk v. Republic Graphics, Inc., 62 Civ. 1003, 218 F.Supp. 262 (S.D.N.Y.1962). Nor is a showing of intent to 'infringe' essential here. American Code Co. v. Bensinger, 282 F. 829 (2nd Cir., 1922); Peter Pan Fabrics, Inc. v. Acadia Co., 173 F.Supp. 292, 299, 302 (S.D.N.Y.1959); Perkins Marine L. & H. Corp. v. Long Island Marine S. Corp., 185 F.Supp. 353 (E.D.N.Y.1960); Ball, Law of Copyright and Literary Property 441 (1944 ed.).

 Plaintiff presents a prima facie case entitling it to preliminary injunctive relief to protect it from further injuries through sales by defendants pending the determination of this action.

 In accordance with Rule 52, F.R.Civ.P., 28 U.S.C.A., the Court sets forth the following findings of fact and conclusions of law which constitute the grounds for its granting of plaintiff's motion for a preliminary injunction.

 FINDINGS OF FACT:

 1. Plaintiff is engaged in the business of manufacturing, publishing, distributing and marketing books, children's educational toys, puzzles, games and similar products.

 2. Plaintiff is the sole copyright proprietor and the owner of the trademark and all other rights in the following items of educational activity toys which are sometimes sold separately as the BLACKBOARD BOOK OF NUMBERS and the BLACKBOARD BOOK OF LETTERS, respectively and sometimes sold in combination as the BLACKBOARD LIBRARY:

 BLACKBOARD BOOK OF NUMBERS - c Registration No. A402623

 Certificate dated July 13, 1959

 BLACKBOARD BOOK OF LETTERS - c Registration No. A402624

 Certificate dated July 13, 1959

 3. Plaintiff is and has been the sole copyright proprietor and the owner of the trademark and all other rights in the following items of educational activity toys which are sometimes sold separately as the UNITED STATES MAP -- People and Places and the UNITED STATES MAP -- Products and Resources, ...


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