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United States District Court, Southern District of New York

April 4, 2003


The opinion of the court was delivered by: John F. Keenan, United States District Judge



Involved here are cross-motions for summary judgment in this copyright infringement and Lanham Act case. Both sides agree that summary judgment is appropriate and that there are no material factual issues as to liability which preclude summary judgment. The issue is whether or not defendant's book, Dorothy Parker: Complete Poems ("Complete Poems") infringes upon plaintiff's work, "Not Much Fun: The Lost Poems of Dorothy Parker" ("Not Much Fun").


From 1915 to 1944, the prolific American author and early feminist, Dorothy Parker (1893-1967), wrote poetry. Her poems generally appeared in magazines such as "Vanity Fair," "Life," "The Saturday Evening Post," "The New Yorker" and newspapers. The introductions to both Not Much Fun and Complete Poems reflect that over the years, Ms. Parker collected her earlier poems and published them in book form. The poetry books were Enough Rope (1926), Sunset Gun (1928) and Death and Taxes (1931). In 1936, she published Not So Deep as a Well which contained most of the poems published in the earlier three poetry volumes.

Ms. Parker omitted from these books more than one hundred poems and verses that were published earlier in various periodicals. Some 122 uncollected poems and verses were published in book form in 1996 by Scribner in Not Much Fun and have a 1996 copyright notice. These works had been compiled by plaintiff Stuart Y. Silverstein ("Silverstein"), beginning in 1994. In addition to the poems, Not Much Fun contains a detailed introduction written by the plaintiff which supplies much biographical data about Dorothy Parker.

The introduction contains excerpts from some of the Parker poems and many anecdotes about her life and relationships with the literary cognoscenti of between the World Wars America, such as Clare Boothe Luce, Robert Benchley and Franklin P. Adams.

Plaintiff submitted a manuscript of his compilation to defendant Penguin Putnam ("Penguin") in 1994 and was offered $2,000 to publish it as part of a larger collection of Dorothy Parker's poems. Silverstein did not accept this offer and the Silverstein compilation was published in Not Much Fun in 1996 by Simon and Schuster.

In 1999, defendant published Complete Poems which contained 121 of the previously uncollected 122 Parker poems in Not Much Fun. No mention of Silverstein or his compilation was made in Complete Poems which has a section called "Poems Uncollected by Parker." This section runs from page 211 through page 391. Except for one poem, which is omitted, it is the same collection as in Silverstein's Not Much Fun. Dr. Colleen Breese ("Breese"), the editor and author of the introduction to Complete Poems, wrote to Michael Millman, the senior editor of Complete Poems on August 23, 1998 in referring to Silverstein's work ". . . I don't think we want to direct people to the competition . . ." McCabe Exh. 13. Thus, it is clear that the failure to give any credit or attribution to Not Much Fun was deliberate and not inadvertent. Penguin issued five printings of Complete Poems from April 1999 through 2002. McCabe Exh. 12.

Although Silverstein's book, Not Much Fun, has as the first part of its title the words, "The Lost Poems of Dorothy Parker," he used his subjective judgment in compiling it by including therein a series of free verses that are not poems. These are called the "Hate Verses." These verses are all included in Complete Poems and are in the section of that work classified in the Index at the beginning of the book as "POEMS UNCOLLECTED BY PARKER." Plaintiff asserts that in collecting these free verses in the book of poems, he was exercising creative judgment which is protected by the copyright laws.xz

On the page titled "A Note on the Text" of "Complete Poems," it states

The poems that appear here are faithfully reproduced from Dorothy Parker's original collections: Enough Rope (1926); Sunset Gun (1928); Death and Taxes (1931); Death and Taxes and Other Poems in Not So Deep as a Well (1936); The Portable Dorothy Parker (1944); and from Bookman, Life, McCall's, Nation, New Republic, The New Yorker, New York Herald Tribune, New York World, Saturday Evening Post, Saturday Review, Vanity Fair, Vogue, and Yale Review. . . .
At their depositions, Dr. Breese, McCabe Exh. 5 at 242, and Michael Millman, McCabe Exh. 6 at 303, acknowledged that they did not agree with the quoted portion of the text. This is obviously because the previously uncollected poems are not "faithfully reproduced from Dorothy Parker's original(s)" as is pointed out immediately above.

There is no question that when Silverstein met Jane von Mehren in May 1994 when she was defendant's executive editor, he was asserting his copyright and that his compilation had the copyright notice "Compilation 8 1994 Stuart Y. Silverstein. All rights reserved." McCabe Exh. 9 at 68, 69.

Plaintiff now claims that Penguin infringed his work which had previously been presented to defendant. Both parties move for summary judgment pursuant to Rule 56 of the Federal Rules of Civil Procedure. Silverstein moves for summary judgment on the issue of liability for copyright infringement, and Penguin moves to dismiss the complaint. Silverstein seeks an injunction prohibiting the sale and distribution of Complete Poems, an award of damages and other relief including statutory damages for willful copyright infringement and actual damages for Lanham Act violations.

This Court has jurisdiction over this case as it arises under the Copyright Act, 17 U.S.C. § 103, et seq.; the Lanham Act, 15 U.S.C. § 1125, and under the common law of the State of New York pursuant to 28 U.S.C. § 1338 (a) and (b)

Venue is proper based on defendant's corporate headquarters being based in the Southern District of New York.

For the reasons outlined below, plaintiff's motion is granted, and defendant's motion is denied.


Summary Judgment

A motion for summary judgment may be granted under Rule 56 of the Federal Rules of Civil Procedure if the entire record demonstrates that "there is no genuine issue as to any material fact and the moving party is entitled to judgment as a matter of law." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250 (1986). The moving parties bear the burden of proving that no material facts are in dispute. Donahue v. Windsor Locks Bd. of Fire Comm'rs, 834 F.2d 54, 57 (2d Cir. 1987). When viewing the evidence, the Court must "assess the record in the light most favorable to the non-movant and . . . draw all reasonable inferences in its favor." Delaware & Hudson Ry. Co. v. Consol. Rail Corp., 902 F.2d 174, 177 (2d Cir. 1990); McLee v. Chrysler Corp., 109 F.3d 130, 134 (2d Cir. 1997). In determining whether a genuine issue of fact has been raised, a court "must resolve all ambiguities and draw all reasonable inferences against the moving party." Donahue, 834 F.3d at 57. Courts should "take care not to abort a genuine factual dispute prematurely and thus deprive a litigant of his day in court." Id. at 55. Once the movant shows that there are no genuine issues of material fact, the opposing party must produce sufficient evidence to permit a reasonable jury to return a verdict in its favor, identifying "specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 248, 256. If the court finds that there are factual disputes regarding material issues, summary judgment is not appropriate. See id. at 249; see also Repp & K & R Music, Inc. v. Webber, 132 F.3d 882, 890 (2d Cir. 1997) ("Clearly, the duty of a court on a motion for summary judgment is . . . not to decide factual issues. In this regard, the court's task is issue identification, not issue resolution.")

Copyright Infringement

To establish copyright infringement, plaintiff must prove ownership of a valid copyright and copying of the copyrighted works by defendant. Eckes v. Card Prices Update, 736 F.2d 859, 861 (2d Cir. 1984)

1. Ownership of a Valid Copyright

A copyright registration is prima facie evidence of a valid copyright. See 17 U.S.C. § 410 (c). Once plaintiff offers a certificate of registration, a rebuttable presumption of validity exists and it is defendant's burden to demonstrate why the copyright claim is invalid. Folio Impressions, Inc. v. Byer Cal., 937 F.2d 759, 763 (2d Cir. 1991). This presumption is rebuttable and the weight to be accorded thereto is within the Court's discretion. Diamond Direct, LLC, v. Star Diamond Group, Inc., 116 F. Supp.2d 525, 527 (S.D.N.Y. 2000).

In 1996, the Copyright Office issued a registration of compilation copyright in Silverstein's name. Registration Certificate No. TX-4-347-579; McCabe Exh. 31. Defendant offers no evidence that the registration is itself invalid. Rather defendant argues that "Silverstein's `compilation' is not an original work of authorship, and is thus not entitled to copyright protection as a matter of law." Def.'s Mem. Supp. at 4.

A. Copyright Protection Afforded to Compilations

While facts themselves are not copyrightable, original compilations of facts, preexisting material or data generally are. Feist Publ'ns, Inc. v. Rural Tel. Serv. Co. Inc., 499 U.S. 340, 345 (1991). The protection afforded a factual compilation is limited. Key Publ'ns, Inc. v. Chinatown Today Publ'g Enters., Inc., 945 F.2d 509, 514 (2d Cir. 1991) ("While the copyright in a factual compilation is thin, we do not believe it is anorexic.") Under the Copyright Act of 1976, a compilation is "a work formed by the collection and assembling of preexisting materials or of data that are selected, coordinated, or arranged in such away that the resulting work as a whole constitutes an original work of authorship." 17 U.S.C. § 101. A copyrightable compilation must demonstrate (1) the collection and assembly of pre-existing material, facts, or data; (2) the selection, coordination, or arrangement of those materials; and (3) the creation, by virtue of the particular selection, coordination, or arrangement, of an `original' work of authorship. Feist, 499 U.S. at 357. The choices made by the compiler must be made independently and entail a minimal degree of creativity. The second requirement is "key" and "instructs courts that, in determining whether a fact-based work is an original work of authorship, they should focus on the manner in which collected facts have been selected, coordinated and arranged." Id. at 358 (emphasis added).

To be original, "novelty is not required. originality requires only that the author make the selection or arrangement independently (i.e., without copying that selection or arrangement from another work), and that it display some minimal level of creativity." Id. at 358; Key Publ'ns, 945 F.2d at 512. The required level of creativity is "extremely low; even a slight amount will suffice." Feist, 499 U.S. at 345. originality does not require that facts be presented in an "innovative or surprising way." Feist, 499 U.S. at 362. "While no precise verbal formulation can capture it, there is some irreducible minimum beneath which a work is insufficiently original to find protection." Diamond Direct, 116 F. Supp. at 528 (citation omitted)

Silverstein's selection, arrangement and coordination reflect a substantial amount of creativity and judgment meeting the minimum requirement for originality.

1. Selection of and characterization of materials as poems

Selection "implies the exercise of judgment." Key Publ'ns, 945 F.2d at 512. In determining the level of creativity involved in the selection process, one must consider whether "industry conventions or other external factors so dictate selection that any person composing a compilation of the type at issue would necessarily select the same categories of information." Matthew Bender & Co., Inc. v. West Publ'g Co., 158 F.3d 674, 682 (2d Cir. 1998).

Silverstein exercised judgment in deciding which items to include in his work and how to coordinate and characterize them. Silverstein selected 122 items to include in Not Much Fun relying on his own taste, judgment and informed decision-making. He did not use objective criteria or a mechanical formulation in choosing the pieces to include. Silverstein spent a great deal of time locating items written by Parker from which he made his selections. He relied on not just items already classified as poems, but also letters, advertisements, and book reviews. Silverstein determined that seven items that Parker's biographer, Professor Randall Calhoun, had concluded were poems or verses were neither and did not include them in Not Much Fun. McCabe Exh. 15 at 45-51, 54-55, 107-08; Exh. 19 at ¶ 3(a). Breese admitted that Calhoun was a well-known Parker scholar. McCabe Exh. 5 at 235. Silverstein also concluded that some items were not written by Parker, even though they had been attributed to her by other sources. McCabe Exh. 15 at 57-65; McCabe Exh. 19 at ¶¶ 2(a), 2(b). These decisions reflect his subjective judgment.

Defendant's witness Dr. Colleen Breese testified in her deposition that there "could be" conflicting definitions of what a poem is and that answering the question "what is a poem' is a "scholarly subjective answer, an informed answer." McCabe Exh. 5 at 150-152. Breese in fact questioned some of Silverstein's determinations: "Is this even a poem?" (McCabe Exh. 22 at 174-181) and "Same?" (id. at 182), and debated whether to include them in Complete Poems. Id. at 174-181 ("include?").*fn1 Parker herself had difficulty describing precisely what constituted a poem. McCabe Exh. 24; The New Yorker, Jan. 7, 1928 ("There is poetry, and there is not. You can't use the words good or bad about it. You must know for yourself. Poetry is so intensely, so terribly, personal.")

The fact that Not Much Fun purports to be all the uncollected poems does not bar it from protection as determining what encompassed "all" required choices and contemplation. It was not simply all the works of Ms. Parker regardless of type. It was limited to her poems, specifically the "lost" ones. A "best of" collection would certainly be entitled to protection. However, the law does not require the compiler to make value judgments regarding or prioritize the items he is selecting and arranging; instead the law requires a minimum amount of originality.

Poems are not facts, nor is Silverstein's characterization of an item as a poem a "theory of fact" as defendant urges in its briefs and at oral argument. See Def.'s Mem. Supp. at 7. Against the backdrop of the testimony of defendant's own expert and the thoughts expressed by Ms. Parker herself, it would be improvident for the Court to conclude that determining what is poetry is not a subjective process.

2. Coordination and Arrangement

The copyright in a factual compilation is "thin" and limited to the particular selection or arrangement. Feist, 499 U.S. at 349, 350-51. The choices regarding selection and arrangement, "so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original" that they are protected by the copyright laws. Id. at 348. Arrangement here "refers to the ordering or grouping of data into lists or categories that go beyond the mere mechanical grouping of data as such, for example, the alphabetical, chronological, or sequential listings of data." Key Publ'ns, 945 F.2d at 513; see also Lipton v. Nature Co., 71 F.3d 464 (2d Cir. 1995) ("any minimal level of creativity is sufficient to render an arrangement protectible") (citations omitted). Silverstein's arrangement was not simply chronological, alphabetical or in some other standard, predictable format. The arrangement of the poems in Penguin's work is "so-strikingly similar" to Silverstein's that it "preclude[s] an inference of independent creation." Lipton, 71 F.3d at 472.

Defendant devotes a great deal of time to arguing that the time plaintiff spent reviewing materials to find poems to include in his work is not protected. Feist, 499 U.S. at 347 ("[t]he distinction . . . between creation and discovery: . . . one who discovers a fact is not its `maker' or `originator.'"); Arica Inst., Inc. v. Palmer, 970 F.2d 1067, 1074-75 (2d Cir. 1992) The statute requires that copyrightability not be determined by "the amount of effort the author expends, but rather by the nature of the final result. To grant copyright protection based merely on the `sweat of the author's brow' would risk putting large areas of factual research material off limits and threaten the public's unrestrained access to information." Fin. Info., Inc. v. Moody's Investors Serv., Inc., 808 F.2d 204, 207 (2d Cir. 1986).

However, plaintiff does not seek protection for his research effort but merely provides a description of the time spent as background to the selection process for which he does seek protection. From his extensive research grew a universe of items from which Silverstein could choose works to include in his compilation. Were he seeking protection for only his research efforts his claims would fail, but because Silverstein seeks protection for the selection resulting from that research and final product reflected in Not Much Fun, he is entitled to protection. See, e.g., CCC Info Servs., Inc. v. Maclean Hunter Mkt. Reports, 44 F.3d 61 (2d Cir. 1994) (finding that the Red Book valuations represented prediction based on a multitude of data sources, as well as on professional judgment and expertise)

Plaintiff owns the registration for Not Much Fun. Plaintiff has a valid copyright in his work based on the principles underlying protection for compilations.

B. Infringement of Silverstein's Copyright

To succeed on his motion, plaintiff must not only prove ownership of a valid copyright but also infringement by defendant of the original elements of his work. Nester's Map & Guide Corp. v. Hagstrom Map Co., 796 F. Supp. 729, 733 (E.D.N.Y. 1992) (citations omitted). Copying can be proved by direct evidence or if such evidence is unavailable, copying may be inferred from the defendant's access to the work and alleged substantial similarity of the infringing work to the copyrighted material. Here copying has been admitted by defendant. Def.'s Mem. Supp. at 3. Dr. Colleen Breese edited Complete Poems and is a Parker scholar who wrote her thesis on Parker. Def.'s Mem. Supp. at 2. "Dr. Breese used photocopies of the text of the Poems in Not Much Fun as the source text for the "Poems Uncollected by Parker" published in Complete Poems." Def. Mem. Supp. at 3. Breese testified that when preparing Complete Poems she bought a copy of Not Much Fun, photocopied it in its entirety with the exception of one poem,*fn2 cut and pasted the photocopies and gave them to Penguin to be the "Poems Uncollected By Parker" section of Complete Poems. McCabe Exh. 5 at 95-96, 141-43, 156-58, 160, 215, 220-22. She did not edit or alter the original source submitting it to Penguin as part of her works exactly as it was published. McCabe Exh. 5 at 30-31, 106, 150. In a "Note on the Text" to Complete Poems, Penguin states that "[t]he poems that appear here are faithfully reproduced from Dorothy Parker's original collections [listing collections]." Complete Poems at xxxix.

Whether a compilation has been infringed requires a "somewhat more refined analysis" than that applied to a wholly original work. Key Publ'ns, 945 F.2d at 514. Copiers of a compilation must copy "the principles guiding that selection" in order to infringe a copyright. Id. at 516; Nester's, 796 F. Supp. at 733. "What must be shown is substantial similarity between those elements, and only those elements, that provide copyrightability to the allegedly infringed compilation." Key Publ'ns, 945 F.2d at 514 (citing Kregos v. Associated Press, 937 F.2d 700, 709 (2d Cir. 1991)). The elements of Silverstein's work that are subject to copyright protection are (1) the selection of the poems to be included, (2) the arrangement of the poems within his book.

Having established actual copying, plaintiff must show that the "copying amounts to an improper appropriation by demonstrating that substantial similarity to protected material exists between the two works." Laureyssens v. Idea Group, Inc., 964 F.2d 131, 140 (2d Cir. 1992); Castle Rock Entertm't, Inc. v. Carol Publ'g Group, Inc., 150 F.3d 132, 137 (2d Cir. 1998). If the section of uncollected poems in Complete Poems is substantially similar to Silverstein's Not Much Fun with regard to the selection of poems and their arrangement, a finding of infringement can be supported.

A critical factor in the analysis is not the amount of copying but the "principles guiding selection" of a copied compilation. Nester's, 796 F. Supp. at 734 (citing Key Publ'ns, 945 F.2d at 516); Eckes, 736 F.2d 859 (holding that the copying of less than one third of the listings was irrelevant as those copied had been designated "premium" cards therefore the infringing guide copied that portion based upon the same principle of selection). Here the amount is nearly the entire work and since it was copied exactly, the selection and its guiding principles were also copied. Therefore, defendant's actions rise to the level of infringing copying by qualitative and quantitative standards.

The existence of common errors in the two works demonstrates copying. See Eckes, 736 F.3d at 863 ("[C]ourts have regarded the existence of common errors in two similar works as the strongest evidence of piracy.") (internal quotation marks omitted); Lipton, 71 F.3d at 471-72 (same)

Based on the admitted "cutting and pasting" and duplication of errors from plaintiff's work into defendant's, the Court finds there to be actionable infringement here. Because defendant admitted to copying Not Much Fun wholesale with the exception of one poem, the Court finds this behavior to infringe on plaintiff's copyright.

C. Lanham Act Claims

Section 43(a) of the Lanham Act, 15 U.S.C. § 1125 (a), forbids the use of false designations of origin and false descriptions or representations in the advertising and sale of goods and services. This Section prohibits the practice known as "reverse passing off", i.e., the selling of another's product as your own. See Waldman, 43 F.3d at 780. Silverstein claims that Penguin is responsible for "reverse passing off".

To prevail on a claim for "reverse passing off", a plaintiff must show: (1) that the work at issue originated with plaintiff; (2) the origin of the work was falsely designated by defendant; (3) the false designation of origin was likely to cause consumer confusion; and (4) that plaintiff was harmed by the defendant's false designation of origin. Lipton, 71 F.3d at 473. Silverstein's work is original as a compilation based on the choices made as to selection and arrangement. Penguin did not attribute Silverstein at all in Complete Poems. Instead, the book credits Penguin and Breese as originators of the book. Penguin's book contains a copyright notice on behalf of the NACCP (to whom Parker bequeathed her poems in her will) and Breese. This failure to attribute Silverstein constitutes false designation. Without this attribution, consumers are likely to believe that Penguin compiled the previously uncollected works and arranged them whereas in fact the section was selected and arranged by Silverstein. Such a belief will result in consumer confusion. These two works are competitive in the marketplace. Plaintiff will certainly suffer from the misconception that Complete Poems is the primary work in this field or only work when that is not the case. Such a belief would direct all consumers to only one work and cause plaintiff harm.

Plaintiff argues that summary judgment on the Lanham Act claim can be awarded solely on the basis of likelihood of confusion. Defendant argues that it cannot be held liable for "reverse passing off" because plaintiff's work does not meet the originality requirement under the copyright law. An analysis of substantial similarity or of the origin of defendant's work is not necessary where, as is the case here, the copying has been admitted. Because Penguin admitted copying; plaintiff prevails on the basis of likelihood of confusion analysis without analysis under the Copyright law. Nonetheless, were the Court to review this claim under Copyright law, the Court has already held that the work is original and protected. Therefore, defendant's arguments based on originality are moot.

The failure to credit Silverstein was willful. Breese indicated that she did not want to credit Silverstein to avoid directing consumers to the "competition." McCabe Exh. 13. Millman agreed to this exclusion of crediting Silverstein. McCabe Exh. 6 at 181-183, 186-87; McCabe Exh. 2. Further, in a "Note on the Text" to Complete Poems, Penguin states that "[t]he poems that appear here are faithfully reproduced from Dorothy Parker's original collections [listing collections]." Complete Poems at xxxix. This complete lack of credit in print supports plaintiff's claim. Defendant cannot admittedly copy a source verbatim without attribution.

The Court grants summary judgment to plaintiff on his claims arising under the Lanham Act.

D. State law claims for Immoral trade practices and unfair competition

Defendant moves to dismiss the state law claims of unfair competition and immoral trade practices on the grounds that they are preempted by federal copyright law. Def.'s Mem. in Supp. at 37 ("Because Silverstein seeks redress for the alleged misappropriation (i.e., copying and distribution) of his work, his common law claims are preempted.")

The Copyright Act preempts state law claims that protect "legal or equitable rights that are the equivalent to any of the exclusive rights within the general scope of copyright as specified" in the federal statute. 17 U.S.C. § 301 (a). New York uses an "extra element" test to determine whether a claim is preempted. A claim is not preempted if extra element beyond that needed to prove copyright infringement is required to prove the state law claim. Samara Bros., Inc. v. Wal-Mart Stores, Inc., 165 F.3d 120, 131 (2d Cir. 2000), rev'd on other grounds, 529 U.S. 205 (2000); Archie Comic Publ'ns, Inc. v. DeCarlo, 141 F. Supp.2d 428, 432 (S.D.N.Y. 2001).

Defendant argues that all the elements of plaintiff's unfair competition claim are the same as those of a copyright infringement action. Plaintiff's unfair competition claim is based not only on defendant's copying of plaintiff's work, but also that defendant committed a false designation of origin or confusion as to source. Pl. Mem. in Opp. at 24. Silverstein alleges that consumers will likely be confused as to the true source of the compilation. Claims based on false designation of origin or confusion as to source are not preempted because the claims require a showing of actual confusion, an element not-required of a copyright infringement claim. Samara Bros., 165 F.3d at 131-32; Twentieth Century Fox Film Corp. v. Marvel Enters., Inc., 155 F. Supp.2d 1, 25 (S.D.N.Y. 2001), aff'd, 277 F.3d 253 (2d Cir. 2002). Plaintiff also argues that its unfair competition claims covering reverse passing off are not preempted because those claims involve the extra element of misrepresentation or deception. Pl. Mem. in Opp. at 24; Kaplan v. Stock Mkt. Photo Agency, Inc., 133 F. Supp.2d 317, 329 (S.D.N.Y. 2001). Based on the required presence of these elements, the Court finds that plaintiff's unfair competition claims are not preempted.


The Court finds that plaintiff holds a valid copyright in Not Much Fun which defendant infringed by publishing Complete Poems and grants summary judgment to plaintiff on the issue of liability of copyright infringement. Summary judgment is also granted to plaintiff on the Lanham Act and state law claims. Penguin's cross-motion to dismiss the complaint is denied.

Penguin is enjoined from selling or further distributing Complete Poems. A status conference is set for April 21, 2003 at 10 a.m. in Courtroom 20C to discuss the specific language of the injunction, the need for a recall of Complete Poems from retail outlets, and to set a date for a hearing and the procedures to be employed in fixing copyright infringement damages and damages for the Lanham Act and state law violations. Plaintiff's request for costs and attorney's fees will be addressed at that conference.


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