The opinion of the court was delivered by: CONNER
The Complaint in this action alleges no less than eight claims:
(1) infringement of plaintiff's U.S. utility patent No. 3,538,620 entitled "Selectively Manually Operable Educational Toy" issued November 10, 1970 ("the '620 patent");
(2) infringement of plaintiff's U.S. design patent No. D-209, 767 entitled "Child's Multiple Element Pop-up Toy" issued January 2, 1968 for a term of 14 years ("the '767 design patent");
(3) infringement of plaintiff's federally registered trademarks BUSY PEEK-A-BOO and PLAYTIME by defendant's sale in the United States of pop-up toys under the trademarks PEEK-A-BOO PETS and PLAYTIME;
(4) federal statutory unfair competition under 15 U.S.C. § 1125(a) by copying distinctive non-functional features of appearance of plaintiff's pop-up toys;
(5) common-law unfair competition;
(6) dilution of the distinctive quality of plaintiff's trademarks and injury to plaintiff's business reputation through the sale of inferior quality toys of similar appearance under confusingly similar trademarks in violation of New York General Business Law ("NYGBL") § 368-d;
(7) unfair competition in violation of NYGBL § 133;
(8) offenses against plaintiff's trademark and non-functional features of appearance in violation of NYGBL § 279-n.
The action is before the Court on (1) plaintiff's motion for preliminary injunction restraining defendants' sale of the allegedly infringing pop-up toys pending trial on the merits; and (2) defendants' motion for summary judgment dismissing all eight claims. For the reasons stated hereinafter, plaintiff's motion is denied and defendants' motion is granted insofar as concerns the Second Claim for alleged infringement of the '767 design patent but is otherwise denied.
Plaintiff's Motion for Preliminary Injunction
The requirements for preliminary injunctive relief are well settled in this Circuit: "a showing of (a) irreparable harm and (b) either (1) likelihood of success on the merits or (2) sufficiently serious questions going to the merits and a balance of hardships tipping decidedly toward the party requesting the preliminary relief." Bell & Howell: Mamiya Co. v. Masel Supply Co., 719 F.2d 42, 45 (2d ...