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HQ 469468




May 22, 2000

ENF-1 RR:IT:IP 469468 CRS

CATEGORY: COPYRIGHT

John Atwood, Esq.
4131 South 36th Street
Arlington, VA 22206

RE: Copyright infringement; COP 00-00063

Dear Mr. Atwood:

This is in reply to your request for a ruling, on behalf of your client, Eschenbach USA, as to whether the design of certain dinnerware imported by Great China, Inc., aka GCI Group, of Los Angeles, California, is piratical of your client’s registered and recorded copyright. This matter was also the subject of a meeting held at Customs Headquarters on May 16, 2000.

FACTS:

Eschenbach USA is the owner of a copyright registered with the U.S. Copyright Office (registration no. VA 985-828) and recorded with Customs (COP 00-00063). The copyright covers the two-dimensional artwork of Eschenbach’s “Evita” dinnerware design. A photograph of the copyrighted design is shown below left.

In connection with your ruling request you submitted a sample plate, the design of which you contend is piratical of the registered and recorded copyright. The back of the plate is marked with the “Great China” name and logo. Samples of genuine goods bearing the copyrighted design were also submitted. A photograph of the alleged piratical copy is shown below right.

Genuine goods are manufactured by Winterling AG, of Kirchenlamitz, Germany. Goods bearing designs that you contend are piratical of the registered and recorded copyright are believed to be manufactured in Japan. The suspect goods are believed to be shipped by sea and imported by Great China/GCI Group through the port of Los Angeles.

ISSUE:

The issue presented is whether the design on the sample Great China/GCI Group dinnerware is piratical of the registered and recorded Eschenbach copyright.

LAW AND ANALYSIS:

Articles that infringe a registered copyright are prohibited from importation into the United States pursuant to section 602(b) of the Copyright Act of 1976, as amended (17 U.S.C. §§ 101-810), and, if the copyright is recorded with Customs, the articles are subject to seizure and forfeiture in accordance with the provisions of 17 U.S.C. § 603. Anyone who violates any of the exclusive rights of the copyright owner as set forth in the Copyright Act, or who imports copies or phonorecords into the U.S. in violation of section 602 of the Act, is an infringer of the copyright.

In order to prove copyright infringement, it is necessary to establish ownership of a valid copyright in the article being infringed and that there was unlawful or illicit copying by the alleged infringer. Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 614 (7th Cir. 1982) (citing 3 M. Nimmer, Nimmer On Copyright, § 13.01, at 13-3 (1981)). See also, Eden Toys, Inc. v. Marshall Field & Company, 675 F.2d 498, 499 (2d Cir. 1982); Arnstein v. Porter, 154 F.2d 464, 468 (2d Cir. 1946).

As to ownership, a certificate of registration from the Copyright Office is prima facie evidence of copyright ownership. 17 U.S.C. § 410(c). Eschenbach USA is the owner of copyright registration VA 985-828 which covers the “Evita” dinnerware design. The copyright is also recorded with Customs (COP 00-00063).

Copying may be inferred where the alleged infringer had access to the copyrighted work and the alleged infringing work is substantially similar thereto. Warner Brothers, Inc. v. American Broadcasting Cos., Inc., 654 F.2d 204, 207 (2d Cir. 1981); ); Arnstein v. Porter, supra. Access may be inferred if the work in question has been widely disseminated. E.g., Id. at 464; ABKCO Music, Inc. v. Harrisongs Music, Ltd., 722 F.2d 988, 998 (2d. Cir. 1983). Eschenbach USA advertises its products through such means as brochures and its home page on the World Wide Web. Accordingly, we find that access can be inferred through widespread dissemination.

In addition, it is necessary to determine whether the challenged work is substantially similar to the copyrighted work. Substantial similarity is determined by reference to the Aordinary observer@ test, i.e., Awhether 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). See also, Atari v. North American Philips, 672 F.2d at 614 (The test is Awhether the accused work is so similar to the plaintiff=s work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff=s protectable expression by taking material of substance and value.@); Peter Pan Fabrics, Inc. v. Martin Weiner Corp., 274 F.2d 487, 489 (2d. Cir. 1960) (Judge Learned Hand, stating that substantial similarity exists where “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.”); Aliotti v. R. Dakin & Co., 831 F.2d. 898, 901 (9th Cir. 1987) (“Dissection of similarities is inappropriate because it distracts the reasonable observer from a comparison of the total concept and feel of the works.”).

In the instant case, as can be seen in the photographs reproduced above, the alleged infringing design is virtually identical to the copyrighted design. As they appear on the sample plates, both designs are comprised of a series of vertical lines bordered by circles running along the inner and outer rim of the plate, and tapering slightly from the outer to the inner circle. The two designs differ only in minor respects, e.g., the copyrighted design consists of a repeating series of four tapered, vertical lines whereas the challenged design is comprised of five tapered, vertical lines. Based on our examination of the two works, we find that the design on the Great China plate has the total concept and feel of Eschenbach’s copyrighted “Evita” design and that the ordinary observer would be disposed to overlook any minor differences and would regard the designs as having the same aesthetic appeal. Consequently, we find the Great China design to be substantially similar to the registered and recorded copyright.

HOLDING:

In conformity with the foregoing, the design on the sample Great China/GCI Group dinnerware is clearly piratical of the registered and recorded “Evita” copyright. Imported goods bearing the copyrighted design are subject to seizure and forfeiture pursuant to 17 U.S.C. § 603 and 19 C.F.R. § 133.42.

However, please be advised that in all cases, the actual decision whether or not to seize is to be made, at the appropriate management level, by the port of entry.

Sincerely,


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