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RUSHTON v. VITALE

No. 123, Docket 23221.

218 F.2d 434 (1955)

Mary Phillips RUSHTON as sole general partner of The Rushton Company, a limited partnership, and The Rushton Company, Plaintiffs-Appellants, v. Joseph VITALE and Benny Rosano, individually and as copartners doing business under the firm name and style of Smile Novelty & Toy Company, Defendants-Appellees.

United States Court of Appeals, Second Circuit.

Decided January 26, 1955.

Attorney(s) appearing for the Case

Eugene L. Bondy, New York City (Bondy & Schloss and Bertram Braufman, New York City, on the brief), for plaintiffs-appellants.

Sam Panish, Brooklyn (Liebowitz, Cobert & Deixel, New York City, on the brief), for defendants-appellees.

Before CLARK, Chief Judge, and FRANK and HINCKS, Circuit Judges.

CLARK, Chief Judge.

Plaintiffs are suing to enjoin the infringement of a copyright, issued May 10, 1954, on a doll in the form of a chimpanzee named Zippy. This toy has been marketed by them, after a considerable expenditure of time, effort, and money, to fulfill a seasonal demand created by the Howdy Doody television program, on which a chimpanzee named Zippy appears. Despite the fact that defendants' doll is substantially identical to, and was obviously copied from...

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