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PRINCE GROUP v. MTS PRODS.

June 27, 1997

THE PRINCE GROUP, INC. d/b/a PRINCESS FABRICS, Plaintiff, against MTS PRODUCTS and KMART, Defendants.


The opinion of the court was delivered by: BATTS

 DEBORAH A. BATTS, United States District Judge.

 Plaintiff, Princess Fabrics ("Princess"), is a textile converter, which purchases raw textiles and hires outside contractors to dye, print and finish the fabrics. Princess then sells the finished fabrics to companies which manufacture other finished goods such as infant and juvenile apparel. Defendants, MTS Products ("MTS"), a seller of baby and juvenile products and KMart Corporation ("KMart"), a large well-known chain retail store, have allegedly infringed Plaintiff's copyrighted works "Mega Dot" and "Star and Clouds" *fn1" by selling products made with fabric designs that are allegedly strikingly similar to Plaintiff's copyrighted works. Plaintiff brought this action seeking damages pursuant to 17 U.S.C. § 504, an accounting of all sales of infringing goods, and the destruction of all infringing goods.

 I. BACKGROUND

 Plaintiff, is a New York corporation. (Am. Compl. at 3; Pl.'s Local Civil Rule 3(g) Statement P 1; Defs.' 3(g) Stmt. at 1.) *fn2" It designs and purchases fabric designs which are then hired out to contractors to convert into printed material. (Prince Aff. P 3.) Plaintiff places a copyright notice on the selvage (the edge) of its fabric in order to prevent copyright infringement. (Id. P 5.) Once the fabrics are produced Plaintiff distributes the samples to its sales representatives who garner orders from manufacturers. (Id. P 6.)

 MTS's principal place of business is in California and it frequently does business in New York. (Pl.'s 3(g) Stmt. P 2; Defs.' 3(g) Stmt. at 1; Compl. P 4.) It sells baby and juvenile products. (Pl.'s 3(g) Stmt. P 3; Defs.' 3(g) Stmt. at 1.) KMart is a well-known national retailer that purchases baby and juvenile products from MTS. (Pl.'s 3(g) Stmt. PP 4-5; Defs.' 3(g) Stmt. at 1; Compl. P 7.)

 Plaintiff created and produced a fabric design entitled "Mega Dot" that it published on February 15, 1993, and copyrighted on October 6, 1994. (Prince Aff. Ex. 2; Defs.' 3(g) Stmt. at 2; Pl.'s 3(g) Stmt. P 12.) Plaintiff created and produced a fabric design entitled "Stars and Clouds" published on July 16, 1993, and copyrighted on August 10, 1993. (Prince Aff. Ex. 5.; Pl.'s 3(g) Stmt. P 21.)

 In 1995, while shopping at KMart, Steven Prince ("Prince") who is in charge of MTS's sales and marketing, saw an MTS manufactured stroller offered for sale, made from fabric that allegedly copied Plaintiff's design. (Prince Aff. P 22.) Plaintiff then obtained a MTS catalogue and found products offered made from a design that allegedly copied Defendant's "Star and Clouds" design. (Id. P 25.)

 MTS claims that it acquired all products made with the infringing fabric from an affiliated company, Yorden Inc., in Taiwan. *fn3" The Plaintiff now moves for summary judgment *fn4" seeking damages pursuant to 17 U.S.C. § 504, an accounting and damages suffered from the sales of the existing infringing products, destruction of all goods made from infringing products and attorney fees. *fn5"

 II. DISCUSSION

 The principles applicable to summary judgment are familiar and well-settled. Summary judgment may be granted only when there is no genuine issue of material fact remaining for trial, and the moving party is entitled to judgment as a matter of law. Fed. R. Civ. P. 56(c); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247-48, 91 L. Ed. 2d 202, 106 S. Ct. 2505 (1986); Corselli v. Coughlin, 842 F.2d 23 (2d Cir. 1988). "The plain language of Rule 56(c) mandates the entry of summary judgment, . . . against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 91 L. Ed. 2d 265, 106 S. Ct. 2548 (1986).

 As a general rule, all ambiguities and all inferences drawn from the underlying facts must be resolved in favor of the party contesting the motion, and all uncertainty as to the existence of a genuine issue for trial must be resolved against the moving party. LaFond v. General Physics Servs. Corp., 50 F.3d 165, 171 (2d Cir. 1995). As is often stated, "viewing the evidence produced in the light most favorable to the nonmovant, if a rational trier could not find for the nonmovant, then there is no genuine issue of material fact and entry of summary judgment is appropriate." Binder v. LILCO, 933 F.2d 187, 191 (2d Cir. 1991).

 In order to prevail on a copyright cause of action, the Plaintiff must establish ownership of the copyright, its validity and unauthorized copying of protected and original elements, by the Defendant. Fonar Corp. v. Domenick, 105 F.3d 99, 103 (2d Cir. 1997); Lipton v. Nature Co., 71 F.3d 464 (2d Cir. 1995); Key Publications, Inc. v. Chinatown Today Publ'g Enters., Inc., 945 F.2d 509 (2d Cir. 1991). Plaintiff has submitted valid copyright and registration certificates for both designs. (Compl. Exs. 2, 5.) The Plaintiff's registration of both copyrights is prima facie evidence of copyright ownership and validity and shifts the burden of proof to Defendants to show the invalidity of Plaintiff's copyrights. See Fonar, 105 F.3d at 104; Textile Innovations, Ltd. v. Original Textile Connections, Ltd., 1992 U.S. Dist. LEXIS 7695, 1992 WL ...


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