The opinion of the court was delivered by: KENNETH CONBOY
KENNETH CONBOY, DISTRICT JUDGE:
A preliminary injunction should be entered where the moving party establishes: a) irreparable injury; and b) either 1) a likelihood of success on the merits or 2) serious questions going to the merits to make them a fair grounds for litigation and a balance of hardships tipping in its favor. Jackson Dairy, Inc. v. H.P. Hood & Sons, Inc., 596 F.2d 70, 72 (2d Cir. 1979). The Court will first address the second prong of the preliminary injunction standard -- likelihood of success on the merits.
In order to establish a likelihood of success on the merits of a copyright infringement case, plaintiff must establish ownership of a valid copyright by plaintiff and copying by the defendant. Novelty Textile Mills, Inc. v. Joan Fabrics Corporation, 558 F.2d 1090, 1092 (2d Cir. 1977). The copyright registration constitutes prima facie evidence of valid ownership. 17 U.S.C. § 410(c); Novelty Textile Mills, Inc. v. Joan Fabrics Corporation, 558 F.2d 1090, 1092 n. 1 (2d Cir. 1977). In this case, plaintiff has provided copies of the registration certificates of the sweaters at issue. See Exhibits A, C, and E of plaintiff's affidavit in support of its motion (hereinafter "plaintiff's affidavit"). The defendant has not challenged the authenticity or validity of the registration copies, and this Court finds that these copies establish plaintiff's valid ownership of the copyrights.
In addition to establishing valid ownership, plaintiff must show copying by the defendant. Plaintiff can prove copying by showing: (1) that defendant had access to plaintiff's design; and (2) that defendant's design is substantially similar to plaintiff's design. Kenbrooke Fabrics, Inc. v. Holland Fabrics, Inc., 602 F. Supp. 151, 154 (1984).
Whether one work is substantially similar to another is determined by the "ordinary observer" test, that is, in Judge Learned Hand's definition, whether the "ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same." Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d Cir. 1960); Gund, Inc. v. Russ Berrie and Co., Inc., 701 F. Supp. 1013, 1018 (S.D.N.Y. 1988). The question, as rephrased more broadly by the Second Circuit, is "whether an average lay observer would recognize the alleged copy as having been appropriated from the copyrighted work." Ideal Toy Corp. v. Fab-Lu Ltd., 360 F.2d 1021, 1022 (2d Cir. 1966); Gund, Inc. v. Russ Berrie and Co., Inc., 701 F. Supp. 1013, 1018 (S.D.N.Y. 1988). Thus, "the copying need not be of every detail so long as the copy is substantially similar to the copyrighted work." Comptone Co. v. Rayex Corp., 251 F.2d 487, 488 (2d Cir. 1958); Novelty Textile Mills, Inc. v. Joan Fabrics Corporation, 558 F.2d 1090, 1093 (2d Cir. 1977).
The Court has viewed all of the sweaters in question and finds that the defendant's sweaters are "substantially similar" to the plaintiff's. Specifically, defendant's cardigan (Exhibit G in plaintiff's affidavit) is substantially similar to plaintiff's cardigan (Exhibit B in plaintiff's affidavit). Indeed, even defendant's designer conceded with respect to the cardigans that the similarity in the designs was "amazing" and "bizarre." Transcript of Hearing, Dec. 3, 1992, pp. 50-51. The Court also finds that, although the pullovers are not as similar as the cardigans, the defendant's pullover (Exhibit H in plaintiff's affidavit) and the plaintiff's pullover (Exhibit D in plaintiff's affidavit) are sufficiently close to establish substantial similarity.
In addition to substantial similarity, plaintiff must show that the defendant had access to plaintiff's design before producing its own. The Court observes that there is no direct evidence that defendant had access to plaintiff's sweaters. However, where striking similarities exist, as they do in the present case, access may be inferred. Wilkie v. Santly Bros., Inc., 91 F.2d 978 (2d Cir. 1937); Miller Studio, Inc. v. Pacific Import Co., Inc., 39 F.R.D. 62 (S.D.N.Y. 1965); Champion Map Corporation v. Twin Printing Company, 350 F. Supp. 1332 (E.D.N.C. 1971); Stevens Linen Associates, Inc. v. Mastercraft Corporation, 1980 WL 1155, 208 U.S.P.Q. 669 (S.D.N.Y. 1980).
Accordingly, the Court finds that defendant copied plaintiff's designs, and we conclude that plaintiff has established a likelihood of success on the merits of a copyright infringement case against the defendant.
The Court will now turn to the first prong of the preliminary injunction test -- irreparable harm. In a copyright infringement case, where a prima facie case of infringement is established, there is a presumption of irreparable harm to plaintiff if a preliminary injunction is not granted. Gund, Inc. v. Russ Berrie and Co., Inc., 701 F. Supp. 1013, 1025 (S.D.N.Y. 1988). It is generally recognized that continued sales of the defendant's product necessarily injures the plaintiff's sales. Id.
In this case, plaintiff has established a prima facie case of infringement, and the Court, accordingly, adopts the presumption of irreparable injury. However, this presumption, like any presumption, falls when opposing evidence is offered. 4 D. Nimmer & M. Nimmer, Nimmer on Copyright, § 32 at 95 (1992). Defendant Bernard Chaus has presented opposing evidence. At the hearing on the preliminary injunction, defendant's counsel asserted, and plaintiff conceded, that the sweaters which plaintiff was trying to protect were last year's model and that plaintiff no longer has its sweaters in the market. Indeed, its sweaters apparently have not been sold since the 1991 Christmas season. Transcript of Hearing, Dec. 3, 1992, pp. 100-101.
We hold that the fact that plaintiff's products are no longer on the market, coupled with the implicit concession of plaintiff's counsel that the assertedly infringed sweaters do not represent a current economic asset of the plaintiff, constitutes a rebuttal of the presumption of irreparable harm. ...