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FRANKLIN ELEC. PUBLISHERS v. UNISONIC PROD.

April 22, 1991

FRANKLIN ELECTRONIC PUBLISHERS, INC., PLAINTIFF,
v.
UNISONIC PRODUCTS CORPORATION AND MAURICE LOWINGER, DEFENDANTS.



The opinion of the court was delivered by: Robert P. Patterson, Jr., District Judge.

OPINION AND ORDER

This suit involves claims of patent and copyright infringement, unfair competition, and other claims of plaintiff Franklin Electronic Publishers ("Franklin") against defendants Unisonic Products Corporation ("Unisonic") and Maurice Lowinger ("Lowinger"). Defendants move pursuant to Rules 8(a) and 12(b)(6) of the Federal Rules of Civil Procedure for dismissal of Franklin's claims for copyright infringement, common law trademark infringement, unfair competition and violations of the New York State consumer protection law and anti-dilution law (Counts III, IV, VI, VII, VIII and IX) and also for dismissal pursuant to Rule 12(b)(6) of all claims against defendant Maurice Lowinger for failure to state a claim against him personally.*fn1 In the alternative, defendants move for a more definite statement pursuant to Rule 12(e) of the Federal Rules of Civil Procedure. According to the complaint, Lowinger is an officer and director and the sole shareholder of Unisonic.

BACKGROUND

This action arises out of the sale and distribution of electronic spelling correction aids — small devices resembling calculators, into which words may be entered by means of a keyboard and which then display a correct spelling for the entry. Plaintiff Franklin alleges that the defendants are selling and distributing an electronic spelling aid under the name "Word Pro" in infringement of Franklin's patent rights under 35 U.S.C. § 171, 271 and 281, copyright rights under 17 U.S.C. § 501, and trademark rights under 15 U.S.C. § 1125, as to Franklin's own electronic spelling aid, sold under the name "Spelling Ace." Franklin also alleges trademark infringement and unfair competition under New York common law, and violations of the New York State anti-dilution statute, N.Y.Gen.Bus.L. § 368-d, and of the New York State consumer protection law, N.Y.Gen.Bus.L. § 349. This motion will not be treated as a Rule 56 motion for summary judgment, since the only matters other than the text of the complaint itself which the Court has considered are the exhibits attached to the complaint and thus incorporated therein. See Goldman v. Belden, 754 F.2d 1059, 1065-66 (2d Cir. 1985).

DISCUSSION

The accepted rule is that a complaint should not be dismissed for failure to state a claim unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief. See Conley v. Gibson, 355 U.S. 41, 45-46, 78 S.Ct. 99, 101-02, 2 L.Ed.2d 80 (1957). When passing on a motion to dismiss, the court must accept the allegations in the complaint as true and construe them in favor of the pleader. See Scheuer v. Rhodes, 416 U.S. 232, 236, 94 S.Ct. 1683, 1686, 40 L.Ed.2d 90 (1974); Cruz v. Beto, 405 U.S. 319, 322, 92 S.Ct. 1079, 1081, 31 L.Ed.2d 263 (1972).

I. The Claims Against Lowinger

As to dismissal of the claims against Lowinger, defendants rely on the general rule that the separate identity of a corporation should be recognized and upheld unless specific unusual circumstances allow for an exception. See Manville Sales Corp. v. Paramount Sys., Inc., 917 F.2d 544, 552 (Fed. Cir. 1990); William Wrigley Jr. Co. v. Waters, 890 F.2d 594, 600 (2d Cir. 1989). They assert that Franklin has not alleged sufficient facts to justify piercing the corporate veil. Piercing the corporate veil is justified when the corporate entity is the "alter ego" of the person sought to be held liable, because that person so dominates the corporation that the corporation served his interests rather than its own. See Gartner v. Snyder, 607 F.2d 582, 586 (2d Cir. 1979). In patent infringement cases, "corporate officers who actively aid and abet their corporation's infringement may be personally liable for inducing infringement under [35 U.S.C.] § 271(b) regardless of whether the corporation is the alter ego of the corporate officer." Orthokinetics, Inc. v. Safety Travel Chairs, Inc., 806 F.2d 1565, 1579 (Fed. Cir. 1986) (citing Power Lift, Inc. v. Lang Tools, Inc., 774 F.2d 478, 481 (Fed. Cir. 1985)). Paragraph 4 of the Complaint states "[o]n information and belief, Lowinger is an Officer and Director of Unisonic, is the sole shareholder of Unisonic, is actively engaged in and directs and controls the business policies of Unisonic, and has a direct financial interest in such activities." Complaint, ¶ 4. Such pleading is conclusory at best and does not contain allegations of acts sufficient to support those conclusions. Accordingly, the motion to dismiss all claims against Maurice Lowinger is granted without prejudice to plaintiff's filing an amended complaint at a later date.*fn2

II. Counts III and IV; Copyright Infringement

Count III alleges copyright infringement of a work entitled "Spelling Ace Second Edition Computer Program and Screen Display," which consists of a computer program and screen display registered on August 7, 1987. See Complaint, ¶ 25, and Exhibit C. Count IV is for copyright infringement of a work entitled "Spelling Ace (Second Edition)," which consists of a compilation of words and spellings registered on July 25, 1988. See Complaint, ¶ 35, and Exhibit D. The claimed infringement of both of these registrations is "by the manufacture and/or sale of product, including the Word Pro Model 305 spelling corrector product, which contains portions copied and/or derived from the aforesaid copyrighted work" without Franklin's consent. Complaint, ¶¶ 28, 38.

Having established ownership by its registration certificates, plaintiff can show "copying" either by direct evidence, or circumstantially by showing 1) access to the copyrighted work, and 2) substantial similarity as to protectible material in the two works. See Reyher v. Children's Television Workshop, 533 F.2d 87, 90 (2d Cir.), cert. denied, 429 U.S. 980, 97 S.Ct. 492, 50 L.Ed.2d 588 (1976). Defendants argue that plaintiff's complaint fails to allege "with any specificity the basis upon which access was obtained" or "to identify the information upon which Plaintiff bases its belief that there is substantial similarity constituting copyright infringement. . . ." Defendant's Memorandum in Support of Motion to Dismiss at 16-18. Defendants claim they cannot determine, as to the copyright registration in Exhibit D (claim IV), whether the software elements or the visual elements of the computer are claimed to be infringed.

Rule 8(a)(2) provides that a pleading shall contain "a short and plain statement of the claim showing that the pleader is entitled to relief." Fed.R.Civ.P. 8(a)(2). The purpose of the rule is to give "fair notice of the claim being asserted so as to permit the adverse party the opportunity to file a responsive answer." Brown v. Califano, 75 F.R.D. 497, 498 (D.D.C. 1977).

In Hartman v. Hallmark Cards, Inc., 639 F. Supp. 816 (W.D.Mo. 1986), aff'd, 833 F.2d 117 (8th Cir. 1987), the court noted that "[i]n applying Rule 8 to copyright infringement actions, courts have required that particular infringing acts be alleged with some specificity." Id. at 820 (citations omitted). That complaint was held to violate Rule 8 in that, instead of alleging the copyrighted materials infringed, it contained a broad claim of infringement by "all other animated productions, paper products, dolls, toys, and any other merchandising and licensing products which have been granted by Hallmark Cards, Incorporated." Id. (emphasis added).

Defendants also rely on Cole v. Allen, 3 F.R.D. 236, 237 (S.D.N.Y. 1942), a case involving a demand for a bill of particulars, in which plaintiff annexed to the complaint only the titles of six books. The court stated that the gist of the complaint showed plaintiff did not intend "to charge that each and every episode, character and dialogue in such books" was infringed by defendant's use of the books in a radio broadcast and ruled that defendants were ...


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