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ART LINE, INC. v. UNIVERSAL DESIGN COLLECTIONS

June 16, 1997

ART LINE, INC., Plaintiff and Counter-Defendant,
v.
UNIVERSAL DESIGN COLLECTIONS, INC. d/b/a UNIVERSAL STATUARY, Defendant, Counterclaimant and Third-Party Plaintiff, v. ART LINE HONG KONG, LTD., HECHINGER COMPANY, INC., and AMERICAN STORES COMPANY, Third-Party Defendants.



The opinion of the court was delivered by: NORGLE

 CHARLES R. NORGLE, SR., District Judge:

 Before the court is the Motion of Plaintiff Art Line, Inc. For Preliminary Injunction. For the following reasons, the motion is granted.

 I. BACKGROUND *fn1"

 Plaintiff, Art Line, Inc. ("Art Line"), and Defendant, Universal Design Collections, Inc. d/b/a Universal Statuary ("Universal"), are both in the business of producing indoor and outdoor statuary products which represents realistic animals. On August 11-14, 1996, Art Line debuted its entire new line of filled, naturalistic statuary animals ("Animals") at the National Hardware Show held in Chicago, Illinois ("trade show"), which Universal also attended. All of the Animals at issue in this case were displayed at that trade show.

 Shortly after the trade show, Universal's President, Paul Brueggemeier ("Brueggemeier"), contacted Art Line's President, Steven Pahos ("Pahos"), and inquired about Art Line's marketing plans with respect to its Animals. Pahos advised Brueggemeier that Art Line was actively marketing all of the Animals which it displayed at the trade show. Brueggemeier did not assert any copyright infringement at that time.

 In January 1997, Hechinger Company ("Hechinger"), one of Universal's major accounts, decided to carry Art Line's Animals rather than Universal's statuary animals. Shortly thereafter, Pahos received a letter from Brueggemeier. For the first time, Brueggemeier asserted that Art Line's filled frog, tortoise, squirrel, and rabbit statuary products infringed Universal's copyrights.

 Despite Art Line's assurances of independent creation, Universal sent letters to Art Line's customers claiming that their sale of "certain filled product(s)" may violate Universal's copyrights, and that their continued sale of those products may subject them to an infringement suit. Art Line is aware of Universal sending such letters to Ames Department Store ("Ames") and American Stores Company ("American Stores"), as well as Hechinger. Although Universal's letters did not name Art Line as the source of the allegedly infringing products, Universal did inform American Stores that Art Line's Animals are the subject of Universal's letter.

 On February 18, 1997, Art Line filed a Complaint against Universal. In Count I, Art Line seeks a declaratory judgment of non-infringement. In Count II, Art Line asserts a claim for trade libel. In Counts III and IV, Art Line asserts claims for unfair competition in violation of the Lanham Act and common law. In Count V, Art Line asserts a claim for violation of the Illinois Consumer Fraud Act and Deceptive Trade Practices Act.

 On March 31, 1997, Universal filed a counterclaim against Art Line. In Universal's counterclaim, Universal alleges that Art Line copied Universal's frog, tortoise, squirrel, and rabbit. For the first time, Universal also alleges that Art Line copied Universal's raccoon and fox. Universal alleges a claim for copyright infringement, unfair competition in violation of the Lanham Act and common law, and violation of the Illinois Consumer Fraud Act and Deceptive Trade Practices Act.

 On April 14, 1997, Art Line's attorneys wrote Universal's attorneys and insisted that Universal cease "telling current or potential Art Line customers or anyone else in the indoor/outdoor statuary industry that Art Line is infringing on any of Universal's intellectual property." Universal rejected Art Line's demand. Consequently, Art Line moves the court for a preliminary injunction, enjoining Universal from notifying Art Line customers or anyone else in the indoor and outdoor statuary industry that Art Line's filled Animals infringe Universal's intellectual property.

 II. DISCUSSION

 A. Likelihood of Success on the Merits

 The Seventh Circuit has opined that a party need only demonstrate that it has a "better than negligible" chance of succeeding on the merits to justify an injunctive relief. Chicago Acorn v. Metro. Pier & Exposition Auth., 941 F. Supp. 692, 705 (N.D. Ill. 1996) (citing Int'l Kennel Club of Chicago, Inc. v. Mighty Star, Inc., 846 F.2d 1079, 1084 (7th Cir. 1988)); see also Cleveland Hair Clinic, Inc. v. Puig, 968 F. Supp. 1227, 1996 U.S. Dist. LEXIS 17512, No. 96 C 3560, 1996 WL 691432, at *14 (N.D. Ill. 1996); Brunswick Corp. v. Jones, 784 F.2d 271, 274 (7th Cir. 1986) ("Although the plaintiff must demonstrate some probability of success on the merits, 'the threshold is low. It is enough that "the plaintiff's chances are better than negligible. . . ."'") (quoting Omega Satellite Prod. Co. v. City of Indianapolis, 694 F.2d 119, 123 (7th Cir. 1982).

 1. Non-infringement

 The manufacture, distribution and/or sale of an unauthorized copy which is substantially similar to a protected work infringes on the copyright in the work. See 17 U.S.C. ยงยง 106, 501(a); Wildlife Express Corp. v. Carol Wright Sales, Inc., 18 F.3d 502 (7th Cir. 1994) (finding copyright infringement of soft-sculptured animal heads and tails on duffel bags); Atari, Inc. v. North Am. Philips Consumer Elec. Corp., 672 F.2d 607, 614 (7th Cir. 1982).

 To prevail in its declaratory action, Art Line must show that Universal did not own a valid copyright, or that Art Line did not copy Universal's copyrighted work. Wildlife Express, 18 F.3d at 507. Art Line can show that it did not copy Universal's copyrighted work if "(1) the similarities between the works are not sufficient to prove copying, or (2) it is established that one work was arrived at independently without copying." Id. at 508.

 a. Copyright Protection

 Following the Wildlife Express analysis, the court first considers the validity of Universal's claimed copyright. See id. Certificates of registration are prima facie evidence of valid copyrights. Id. Although such evidence may be rebutted, id., Art Line makes no attempt to do so. As such, the court accepts Universal's assertion that Universal's frog, tortoise, squirrel, rabbit, raccoon and fox are protected.

 The question then becomes whether Art Line copied Universal's statuary animals. See Wildlife Express, 18 F.3d at 507. In determining copying, the court will consider whether Art Line had access to Universal's statuary animals and whether Art Line's Animals are substantially similar to Universal's statuary animals.

 b. Access

 Broad public display of a product may give rise to an inference of access. Eve of Milady v. Impression Bridal, Inc., 957 F. Supp. 484, 488-89 (S.D.N.Y. 1997) (inferring access from placement of a national magazine advertisement for copyrighted product); see also Gaste v. Kaiserman, 863 F.2d 1061 (2d Cir. 1988) (noting that access may be inferred from longstanding and wide dissemination). Cf. Selle v. Gibb, 741 F.2d 896 (7th Cir. 1984) (holding that limited play of a song inadequate to demonstrate access). A demonstration of access does not require proof of actual viewing, but proof of the opportunity to view the copyrighted work. Wildlife Express, 18 F.3d at 508.

 Although Art Line's consultant designer, Harry Brown ("Brown"), states that he did not refer to Universal's statuary animals while creating Art Line's Animals, Art Line does not argue that it did not have an opportunity to view Universal's statuary animals. Thus, the court will assume that Universal's statuary animals were ...


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