The opinion of the court was delivered by: ROBERT SWEET, District Judge
Defendants Safavieh Carpets, Inc. and Safavieh, Inc.
("Safavieh") have moved pursuant to Rule 56, Fed.R.Civ.P., for
summary judgment to dismiss the claim of copyright infringement
contained in the complaint of plaintiff Odegard Inc. ("Odegard").
For the reasons set forth below, the motion is granted.
On June 2, 2004, Odegard filed its complaint alleging causes of
action for copyright infringement, unfair competition, conversion
and unjust enrichment arising out of the alleged substantial
similarity between the Mahogany carpet in Safavieh's Rodeo Drive
collection and the Takyu III design in Odegard's Kyoto
collection. An answer containing affirmative defenses and
counterclaims was filed and Odegard filed its reply. Discovery
was had and the instant motion was marked fully submitted on July
The facts are set forth in the parties' Local Rule 56.1
Statements. For the purposes of this motion, Safavieh does not
challenge Odegard's assertion that Safavieh had access to
Odegard's Takyu III design. Odegard designs, manufactures, and sells Tibetan carpets. Among
its various lines of carpets, Odegard sells a design called
Stephanie Odegard is the president of Odegard who created the
Takyu III design in the middle to late 1990's, elements of which
were inspired by and derived from an antique Japanese Kimono
depicting vines. Odegard sells the Takyu III carpet as part of
its "Kyoto Collection."
Takyu III is a hand-drawn design. The work "takyu" means vine
in the Tibetan language, perhaps a particular vine. The spindly
vines in Takyu III turn and curl in every direction. In Takyu III
some of the vines spill from the broken border into the large
open field at the center of the design. Most of the vines in
Takyu III have stems and leaves and curlicues. Some of the vines
in Takyu III have multiple leaves on the vine stems and have a
floralesque aspect. Most of the vines in Takyu III are
curvilinear, constituting a curvy design rather than a geometric,
straight-edge design. The blocks of color in the border of the
Takyu III design are separated by straight edges between them
except that the handmade process sometimes alters the straight
appearance. Each edge between the colored blocks in the border of
Takyu III consists of a narrow scissored line. Borders are common elements in carpet design while broken
borders are not. Branches of plants are common elements in carpet
design. The combination of patterned borders (but not broken
borders) and floral motifs were commonly used in carpets before
the middle to late 1990's.
Odegard carpets are known for their "contemporary classic"
U.S. Copyright Registration No. VA-1-035-311 for the Takyu III
fabric design identified the textile design created by Odegard
known as "Takyu" as a preexisting work on which Odegard holds a
copyright registration and identified the material added to the
work as motifs selected from "Takyu" and made into a new design
layout. The fabric design known as "Takyu III" was created by
In addition, the unrebutted affidavit of Stephanie Odegard,
president of Odegard, describes her background, including service
in the Peace Corp., familiarity with Tibetan products, and the
development and establishment of Odegard and its success in the
design world. Odegard is preeminent in the importation of
hand-knotted woolen carpets, its sales exceed $10 million and its
sales of 350 Takyu III rugs have produced $1.6 million in
revenues. Odegard has spent $300,000 between 2000 and 2004
advertising the Takyu III rug. Stephanie Odegard described in detail the process
by which she created the Takyu III design.
Safavieh sells carpets in the United States and among its many
designs Safavieh sells a collection called the "Rodeo Drive
Collection" which includes a carpet design named "Mahogany."
Sales of the Mahogany design totalled $5,196.20 and have been
Albert Laboda ("Laboda"), the employee of Safavieh who created
the Mahogany design of Safavieh used a computer to create the
Mahogany design. Laboda, who was employed for about a year, is no
longer an employee of Safavieh and is a missing witness.
Odegard advertised its Takyu III design from 2000 to 2004 in
prominent design magazines, many of which are ...