MAHARISHI HARDY BLECHMAN v. ABERCROMBIE & FITCH CO.No. 03 Civ.1028 VM.
292 F.Supp.2d 535 (2003)
MAHARISHI HARDY BLECHMAN LTD., a U.K. Company, Plaintiff,
ABERCROMBIE & FITCH COMPANY, a Delaware corporation, and Abercrombie & Fitch, Stores, Inc., an Ohio corporation, Defendant.
ABERCROMBIE & FITCH COMPANY, a Delaware corporation, and Abercrombie & Fitch, Stores, Inc., an Ohio corporation, Defendant.
United States District Court, S.D. New York.
December 8, 2003.
Philippe Bennett, Coudert Brothers, L.L.P., New York, NY, for Maharashi Hardy Blechman Ltd.
Frank J. Colucci, Colucci & Umans, New York, NY, for Abercrombie & Fitch Co., Abercrombie & Fitch Stores, Inc.
DECISION AND ORDER
MARRERO, District Judge.
The principal issue raised by the motion for summary judgment now before the Court is whether plaintiff, a high-end fashion designer, may recover under a theory of trade dress infringement where defendants allegedly have borrowed heavily from plaintiff's innovative line of pants. On that issue, the Court concludes that plaintiff's line of pants does not have a consistent overall look and is therefore unprotectable as a singular trade dress. The Court also addresses several related causes of action for, among other things, copyright infringement and unfair competition. As regards those causes of action, the Court concludes that plaintiff's claims fail as a matter of law. Accordingly, defendants' motion for summary judgment is granted. Because the facts of this case as described in the complaint present exceptional circumstances, the Court will stay the entry of judgment in defendants' favor to permit the plaintiff to assess whether it is able to amend its complaint to remedy the defects identified in this opinion with respect to its claims for trade dress infringement, unfair competition, and trade dress dilution, and if so, to file a motion for leave to amend its complaint.
As early as 1997, plaintiff Maharishi Hardy Blechman Ltd. ("Maharishi") began
In 1999 defendants Abercrombie & Fitch Company and Abercrombie & Fitch Stores, Inc. (collectively, "Abercrombie") began selling a style of pants called the Shi Ding Roll Up Pant ("Shi Dings") for around $75. Shi Dings are strikingly similar to at least one incarnation of Snopants. They contain a similar roll-up feature and somewhat similar embroidered dragon on the back of one leg. They also have a similar style of visible stitching and a similar pocket arrangement. In February 2000, Maharishi sent a letter to Abercrombie contending that it considered Shi Dings and other unspecified Abercrombie garments to be unlawful infringements of the Snopants trade dress. In an April 2000 letter, Abercrombie agreed to cease selling Shi Dings, though denying any infringement. The letter indicated that Abercrombie had already sold around 7,200 of its stock of 8,200 and that Abercrombie did not intend to order any more.
In February 2003, Maharishi filed the complaint in this litigation against Abercrombie alleging, among other related causes of action, that Shi Dings and other unspecified Abercrombie garments infringe upon the Snopants trade dress. Responding to the Court's request for specificity, Maharishi later identified twenty-eight (28) allegedly infringing Abercrombie garments, including various Abercrombie shorts, T-shirts, and cargo pants. The complaint's formulation of Maharishi's trade dress at issue describes nine distinctive features:
First Am. Compl. ¶ 16.
STANDARD FOR A MOTION FOR SUMMARY JUDGMENT
The Court may grant summary judgment only "if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." Fed.R.Civ.P. 56(c). The Court must first look to the substantive law of the action to determine which facts are material; "[o]nly disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment." Anderson v. Liberty Lobby, Inc.,
In a case such as this one where the non-moving party would bear the burden of proof at trial, the movant first has the burden to make a prima facie case that it is entitled to prevail on the motion. Celotex Corp. v. Catrett,
Throughout this inquiry, the Court must view the evidence in the light most favorable to the non-moving party and must draw all inferences in favor of that party. See Hanson v. McCaw Cellular Communications, Inc.,
A. TRADE DRESS INFRINGEMENT
Section 43(a) of the Lanham Act permits plaintiffs to recover damages against any person who
15 U.S.C. § 1125(a). "Section 43(a) is a broad federal unfair competition provision which protects unregistered trademarks similar to the way that section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1), protects registered marks." Chambers v. Time Warner, Inc.,
Although not originally classified under "trademarks," the concept of "trade dress" — the overall appearance or image of goods — has been incorporated into the general trademark law, including § 43(a). See Wal-Mart Stores, Inc. v. Samara Bros., Inc.,
However, courts exercise "particular `caution,' when extending protection to product designs" because those claims present an acute risk of stifling competition. Landscape Forms, Inc. v. Columbia Cascade Co.,
In a trade dress action under § 43(a), the plaintiff bears the burden to prove three things: first, "that the mark is distinctive as to the source of the good," Yurman Design, 262 F.3d at 115; second, "that there is a likelihood of confusion between its good and the defendant's;" id.; and third, "that the matter sought to be protected is not functional." 15 U.S.C. § 1125(a)(3). The first and third requirements, distinctiveness and functionality, are at issue in this case.
Generally speaking, "the plaintiff may prove distinctiveness by showing either that the `intrinsic nature' of the mark serves to identify a particular source (what is known as `inherent distinctiveness') or that `in the minds of the public, the primary significance of [the mark] is to identify the source of the product rather than the product itself' (what is known as `acquired distinctiveness' or `secondary meaning')." Yurman Design, 262 F.3d at 101 (quoting Wal-Mart, 529 U.S. at 210-211, 120 S.Ct. 1339) (emphasis and alteration in original). In product design cases such as this one, however, the Supreme Court has held that the plaintiff must always make the more difficult showing of "acquired distinctiveness." Wal-Mart, 529 U.S. at 216, 120 S.Ct. 1339. The reason for that more rigorous requirement is that a product's design, as opposed to its packaging or labels, is almost never inherently source-identifying: "Consumers are aware of the reality that, almost invariably, even the most unusual of product designs — such as
First, even where the plaintiff can demonstrate acquired distinctiveness, a trade dress that seeks to protect an "idea, a concept, or a generalized type of appearance" is "generic," not distinctive, and therefore not subject to trade dress protection. See Jeffrey Milstein, 58 F.3d at 32 (denying trade dress protection to the concept of greeting cards die cut to the shapes of the photographs depicted on the cards). Extending trade dress to generic features would "undermine restrictions in copyright and patent law that are designed to avoid monopolization of products and ideas." Id.; see also Qualitex Co. v. Jacobson Prods. Co., Inc.,
Second, the plaintiff must articulate with specificity the design elements of the trade dress. Landscape Forms, 113 F.3d at 381. At least four problems arise when courts face imprecise trade dress definitions: (1) jurors may view the same trade dress differently; (2) jurors or courts may have trouble determining issues of functionality and secondary meaning; (3) the imprecision may indicate that the trade dress is overbroad; and (4) courts may have trouble issuing a narrowly-tailored injunction. Yurman Design, 262 F.3d at 117; McCarthy, supra § 8.3 at, 8-12.
Third, where, as here, the plaintiff seeks trade dress protection for an entire product line, as opposed to singular products, the plaintiff must demonstrate that the trade dress signifies an overall look which is "`consistent'" throughout the line. Id. at 116 (quoting Walt Disney Co. v. Goodtimes Home Video Corp.,
As mentioned above, a trade dress plaintiff also bears the burden to prove that the trade dress is not functional. 15 U.S.C. § 1125(a)(3). A trade dress feature is functional "`if it is essential to the use or purpose of the article or it affects the cost or quality of the article,' that is, if exclusive use of the feature would put competitors at a significant non-reputation-related disadvantage." Qualitex,
Where the asserted trade dress extends to the "overall look" of the combination of features comprising a product or product line, the Court must evaluate the distinctiveness and functionality of those features taken together, not in isolation. See LeSportsac, Inc. v. K Mart Corp.,
In this case, Maharishi seeks trade dress protection for the overall look of Snopants. However, Maharishi's confusing filings have made a moving target out of both the definition of Maharishi's trade dress and the precise pants to which that trade dress pertains. Unfortunately, these muddy preliminary issues overshadow the underlying merits and, as the Court explains below, require the Court to decide the motion based upon suppositions which may not accord with what Maharishi originally intended. The thorny threshold questions are: (1) Which pants are the subject matter of Maharishi's trade dress claim?; and (2) What features of those pants comprise the trade dress?
In regard to the first question, Maharishi claims for the first time in its opposition brief to this motion that it is only seeking protection for the Classic Snopants.
The complaint unambiguously seeks protection for the entire "line" of full-length Snopants and defines the term "Snopants," which is used throughout the complaint, as the collective of "Snopant," "Snopants," and "Sno Camp Pantz." See First Am. Compl. ¶ 15.
In regard to the second question, Maharishi offered a formulation of the trade dress in its summary judgment opposition brief which is narrower than the complaint's formulation, and the Court must decide whether it would be procedurally proper to consider the new, narrower version. Again, Abercrombie objects to this maneuver as a belated attempt to amend the complaint. On this issue, the Court will assume, without deciding, that the narrower formulation was properly made.
In updating its trade dress definition, Maharishi responds to Abercrombie's argument that the trade dress formulation in the complaint is not specific enough. Abercrombie argues that extending trade dress protection to the nine elements either "alone in combination," as alleged in the complaint, would cover nearly one million conceivable pants styles. That argument overstates a nevertheless meritorious point. The paragraph in the complaint describing the trade dress alleges that Snopants incorporate "a number of elements that either alone or in combination are inherently distinctive and non-functional. ..." First Am. Compl. ¶ 16. Abercrombie apparently reads that sentence to allege that each of the nine features is, by itself, both inherently distinctive and non-functional and therefore protectable as a free-standing trade dress. In other words, Abercrombie reads Maharishi's complaint to be seeking a monopoly on, for example, the use of slanted and curved pockets.
The Court does not agree with Abercrombie's reading of the complaint and instead takes the more natural and plausible reading which alleges that each feature is either protectable taken alone or protectable in some combination with the other features. This narrower reading is still overbroad as pertains to this case, however, because neither a juror, in adjudicating the issue, nor a Court, in formulating an injunction, would know exactly which particular combination of numerous elements claimed would trigger trade dress protection. Given that high number of allegedly unique featured claimed here, the range of theoretically possible combinations would be quite extensive, inevitably inviting judicial guesswork as to which of the myriad permutations yields a sufficiently distinctive protectable product. Cf. Yurman Design, 262 F.3d at 117 (explaining that a specific formulation is necessary for determining material facts and for formulating injunctions).
Maharishi has attempted to remedy this defect by offering in its opposition brief a revised articulation which is essentially the conjunction of eight of the nine elements (all but the embroidery, which some Snopants lack):
See Plaintiff's Memorandum of Law in Opposition to Defendant's Motion for Summary Judgment, dated Oct. 2, 2003 ("Pl. Mem.") at 7. That formulation is very precise and would satisfy the specificity requirement.
It is unclear, however, whether a trade dress plaintiff must cling to the precise language of a trade dress as stated in a complaint, or whether a plaintiff may offer a revised formulation in another filing. There is at least some support for the proposition that a plaintiff may offer an updated formulation at a later stage in the litigation. See Coach, Inc. v. We Care Trading Co., Inc., No. 99 Civ. 11672 (DLC), 2001 WL 812126, *1 n. 3 (S.D.N.Y. July 18, 2001) ("Coach had provided varying formulations of this trade dress in its pre-trial papers but offered this definition at the pre-trial conference when asked by the Court for a final statement of its trade dress.").
On the other hand, it is inappropriate for Maharishi to attempt to remedy a legal deficiency in the trade dress articulation after Abercrombie's principal summary judgment briefing, especially where, as here, it is precisely that articulation which Abercrombie asserts is overbroad. Because the Court concludes, as explained below, that Abercrombie is entitled to summary judgment on this claim on other grounds, the Court assumes, without deciding, that the narrower formulation is procedurally proper.
The Court must address one final issue with regard to the narrowed articulation of the trade dress. The ninth "element" of the asserted trade dress is: "Sometimes Asian-themed embroidery on the rear side of the pant leg." Pl. Mem. at 7. This formulation is immediately problematic because as a matter of logic, every conceivable pair of pants either has, or does not have, Asian-themed embroidery. In other words, the addition of the "and/or" element of "sometimes" Asian embroidery adds nothing whatsoever to the asserted trade dress. Accordingly, the Court will disregard the embroidery element in considering the asserted trade dress. See Elements/Jill Schwartz, Inc. v. Gloriosa Co., No. 01 Civ. 904 (DLC), 2002 WL 1492197, at *5 n. 1 (S.D.N.Y., July 15, 2002) (disregarding elements which plaintiff asserted were "often" present).
Abercrombie argues that Maharishi has not carried its burden of demonstrating that the claimed trade dress is not functional. In support of its contention, Abercrombie submitted the declaration of one of its own designers, who explains how each of the nine elements of Maharishi's asserted trade dress improves either the pants' quality (e.g., the double knee darts allow the knee to bend easier) or look (e.g., the contrasting pocket lining adds color interest), or both. Maharishi counters with the declaration of a fashion professor who offers alternate designs for each of the nine elements. He states, for example, that the roll-up feature could be achieved by Velcro, instead of epaulettes, and that the pockets could be squared, instead of slanted and curved. According to Maharishi, these alternatives demonstrate that competitors would not be at a "significant non-reputation-related disadvantage," Qualitex, 514 U.S. at 166, 115 S.Ct. 1300, if it they were precluded from copying the Snopants trade dress. Maharishi concedes that the features may add to the aesthetic appeal of Snopants but argues that the particular combination of features is primarily "source identifying," not aesthetically functional.
Abercrombie responds that the issue of alternate designs is entirely irrelevant in light of the Supreme Court's decision in TrafFix Devices v. Marketing Displays,
The Supreme Court reversed and held that the expired patent was "strong evidence" that the feature was functional. Id. at 29, 121 S.Ct. 1255. The Court explained that, in addition to underplaying the importance of the expired utility patent, the Sixth Circuit's "error likely was caused by its misinterpretation of trade dress principles in other respects." Id. at 33, 121 S.Ct. 1255. Specifically, the Sixth Circuit should not have relied on the quoted language from Qualitex as its definition of functionality. 532 U.S. at 32-33, 121 S.Ct. 1255.
The Supreme Court reaffirmed the "traditional" (or Inwood) test, under which a trade dress is functional "when it is essential to the use or purpose of the device or when it affects the cost or quality of the device." Id. at 33, 121 S.Ct. 1255 (citing Inwood Labs., 456 U.S. at 850 n. 10, 102 S.Ct. 2182). The language in Qualitex "[e]xpand[ed] upon the meaning of this phrase" and added what is sometimes called the "competitive necessity" test: "a functional feature is one the `exclusive use of [which] would put competitors at a significant non-reputation-related disadvantage.'" Id. (quoting Qualitex, 514 U.S. at 165, 115 S.Ct. 1300) (alteration in original). The Supreme Court stated that the Sixth Circuit's error was to treat the Qualitex expansion "as a comprehensive definition." Id. Instead, the Court noted: "Where the design is functional under the Inwood formulation there is no need to proceed further to consider if there is a competitive necessity for the feature." Id. at 33, 121 S.Ct. 1255. The Supreme Court suggested that it would be "proper to inquire into a `significant non-reputation-related disadvantage' in cases of "[a]esthetic functionality" because aesthetic functionality was the "central question" in Qualitex."
The Supreme Court concluded that the dual-spring design was "the reason the device works" and therefore declared that "[t]here is no need ... to engage ... in speculation about other design possibilities, such as using three or four springs which might serve the same purpose." Id. (emphasis added). Abercrombie highlights this last sentence to support the proposition that other design possibilities are irrelevant where an asserted trade dress is "functional" under the traditional definition of functionality.
Although Abercrombie's position is not without force, the Court instead agrees with the Federal Circuit's interpretation of TrafFix:
Valu Engineering, Inc. v. Rexnord Corp.,
Under TrafFix, the Court must first ask whether the trade dress is functional in the traditional sense, i.e., whether "it is essential to the use or purpose of the article or if it affects the cost or quality of the article." Inwood Labs., 456 U.S. at 850 n. 10, 102 S.Ct. 2182. "A design feature of a particular article is `essential' only if the feature is dictated by the functions to be performed; a feature that merely accommodates a useful function is not enough." Stormy Clime Ltd. v. ProGroup, Inc.,
Id. at 977.
In this case, the Court, resolving doubts and ambiguities in favor of Maharishi as the non-movant, especially in view of the uncertainty surrounding the functionality element following TrafFix, concludes that Maharishi has satisfied its burden of raising at least a factual issue as to whether the peculiar arrangement of Snopants features is nonfunctional under the traditional definition. Maharishi argues, for
On the question of aesthetic functionality, the Court finds substantial guidance from the Second Circuit's decision in Knitwaves. In that case, Knitwaves, Inc. ("Knitwaves"), a children's clothing manufacturer, created a Leaf Sweater and a Squirrel Cardigan. 71 F.3d at 999. Soon after, Lollytogs Ltd. ("Lollytogs") introduced a competing line of sweaters, "including a similar-looking Leaf Sweater and Squirrel Cardigan admittedly copied from Knitwaves' sweaters." Id. After a bench trial, the district court awarded Knitwaves damages for trade dress infringement. Id. The Second Circuit applied the "alternate designs test" in rejecting Lollytogs' argument on appeal that the Knitwaves trade dress was aesthetically functional: "According trademark protection to Knitwaves' designs would not preclude Lollytogs from using fall colors or motifs, squirrels or leaves. It would preclude only the use of designs so similar as to create a likelihood of confusion." Id. at 1006.
A finding that Maharishi has satisfied its burden of production with regard to the issue of functionality, however, does not resolve this motion. As mentioned above, Maharishi would also have to establish the two other prerequisites of trade dress infringement, likelihood of confusion and distinctiveness. In connection with those elements, Abercrombie has advanced concrete evidence and compelling arguments on the distinctiveness issue (specifically, on the consistency of the trade dress) to support a finding that there is no material factual issue in dispute, and, as explained below, Maharishi has not sufficiently countered those points. The motion for summary judgment must be granted on the trade dress claim on this ground.
Abercrombie argues that the trade dress does not have a consistent overall look because Snopants contain only some of the nine features at issue.
Maharishi does not dispute this lack of consistency, but instead argues that it is only seeking trade dress protection for Classic Snopants. As explained above, however, that assertion simply comes too late for the Court to consider. The Court agrees with Abercrombie that no reasonable factfinder would find sufficient consistency in the Snopants line, and therefore Maharishi is not entitled to trade dress protection for the Snopants line as a matter of law. Cf. Walt Disney Co., 830 F.Supp. at 766-68 (denying trade dress protection to Disney's Classic Animated Features line of videocassettes because the overall look of the video packaging was inconsistent).
B. UNFAIR COMPETITION
Maharishi asserts a federal unfair competition claim under § 43 of the Lanham Act (the same subsection providing the basis for its trade dress claim) and a state common law unfair competition claim, both arising from these same facts.
Maharishi, citing Genesee, argues that an unfair competition claim may survive a trade dress deemed unprotectable. It is true that unfair competition "is a more broadly conceived tort than its frequent litigation partner, trademark infringement, and there are some instances where a defendant is guilty of competing unfairly without having technically infringed." Professional Golfers Ass'n of America v. Bankers Life & Cas. Co.,
At least two Second Circuit cases have found facts supporting an unfair competition claim even where the underlying trademark was unprotectable, but those cases are highly distinguishable from the facts here. In Genesee, Genesee Brewing Company ("Genesee") alleged that Stroh Brewing Company's ("Stroh") use of the phrase "Honey Brown" to describe its beer constituted trademark infringement. 124 F.3d at 137. Although the Court decided that Genesee's mark was generic, and thereby not protectable as a trademark, that finding did "not preclude a finding that Stroh has violated the Lanham Act by engaging in unfair competition." Id. at 149. Specifically, the Court held Stroh could not "market its beer in such a way as to lead consumers to believe that they are getting Genesee's product," notwithstanding the fact that Stroh had a right to use the phrase "Honey Brown." Id. at 150. The panel suggested that there was evidence of unfair competition in the record. Id. at 151. For example, (1) customers have long associated the phrase "Honey Brown" with Genesee's beer; (2) Stroh specifically emphasized the words "Honey Brown" on its label, similar to Genesee's label; (3) Stroh arranged to give its coupons to supermarket purchasers of Genesee's beer; and (4) bars which listed "Honey Brown" on their menus replaced Genesee's more expensive product with Stroh's, without changing their menus. Id. at 151.
In Murphy Door Bed Co. v. Interior Sleep Sys., Inc.,
What distinguishes Murphy and Genesee is that, unlike those cases, here there is no evidence of unfair competition grounded independently on wrongful conduct distinct from the alleged trade dress infringement. As discussed above, Maharishi's
C. DECEPTIVE TRADE PRACTICES
The Court dismisses Maharishi's deceptive trade practices claim under N.Y. Gen. Bus. Law § 349 because there is no allegation, let alone evidence, of public harm. "Claims that arise out of a trademark infringement action, and disputes between competitors where the core of the claim is harm to another business as opposed to consumers, both constitute situations which courts have found to reflect a public harm that is too insubstantial" for purposes of a claim under § 349. Gucci America, Inc. v. Duty Free Apparel, Ltd.,
The Court also dismisses Maharishi's claims of dilution under federal and state law because the Court has determined that there is no protectable trade dress to be diluted in the first place. Federal law only provides a dilution cause of action to "the owner of a famous mark." 15 U.S.C. § 1125. Maharishi has not demonstrated that it owns a protectable mark, much less that it is "famous" within the meaning of the statute. "To prevail on a trade dress dilution claim under" New York state law "a person must prove ... ownership of a distinctive mark...." Landscape Forms, Inc. v. Columbia Cascade Co.,
E. FALSE ADVERTISING
Abercrombie affixed a tag to its Shi Dings stating, "Our Most Original Pant Since 1892 ... Pure Abercrombie & Fitch design and fit." Maharishi argues that the tag constitutes false advertising under § 43(a) of the Lanham Act because the pants are neither "original," nor "pure[ly]" Abercrombie's creation. To establish a § 43(a) false advertising claim, the plaintiff must demonstrate that "(1) the advertising is literally false as a factual matter, or (2) although the advertisement is literally true, it is likely to deceive or confuse consumers." Lipton v. Nature Co.,
The claim that Shi Dings are Abercrombie's "Most Original" pants is obvious puffery and therefore not actionable. There is no way to prove that one pair of Abercrombie pants is more or less "original" than another pair of Abercrombie pants. The assertion that Shi Dings are "Pure Abercrombie & Fitch design and fit" is more non-actionable puffery. Again, there is no way to prove to what extent the design and fit of Shi Dings is "pure" or "impure" Abercrombie, especially where, as here, Abercrombie indisputably manufactured and sold the pants. Cf. Cytyc Corp. v. Neuromedical Sys. Inc.,
F. COPYRIGHT INFRINGEMENT
Maharishi claims that the fiery dragon embroidery on the leg of one particular Snopants style is protected under the laws of the United Kingdom and that Abercrombie's dragon embroidery on its Shi Dings, along with the dragon image on the accompanying hang tag, violate the Copyright Act, 15 U.S.C. § 501.
As an initial matter, the scope of copyright protection extends "only to the work's particular expression of an idea, not to the idea itself." Folio Impressions, 937 F.2d at 765. In Folio, the Second Circuit, in deciding whether one textile rose pattern, the Baroque Rose, infringed upon another, the Folio Rose, held that "what is protected in this case is the Folio Rose itself and the way in which that rose is arranged; the copyright umbrella does not cover the idea of arranging roses generally in a straight line pattern." Id. (emphasis in original). Similarly, in this case, only the particularized expression of the dragon is protectable, not the idea of the dragon itself or even the idea of putting a dragon on pants.
No reasonable factfinder could conclude that the dragons at issue are substantially similar in the relevant respect because virtually all of the similarity is attributable to the fact that the images are all dragons. See Mattel, Inc. v. Azrak-Hamway Int'l, Inc.,
Maharishi directs the Court's attention to Knitwaves, in which the Second Circuit, after noting a list of differences between the sweater patterns at issue, stated: "These differences in detail, while requiring considerable ink to describe, do little to lessen a viewer's overwhelming impression that the two Lollytogs sweaters are appropriations of the Knitwaves sweaters." 71 F.3d at 1004. Maharishi emphasizes that merely being able to list differences in the image should not suffice, especially on a motion for summary judgment.
The Court considers Knitwaves highly distinguishable, especially in comparing the similarity in the images appended to that opinion to the similarity among the exhibits in this case. In Knitwaves, the Court noted that "the differences pale in comparison to the overwhelming impression of similarity" and also stated, "An observer viewing the sweaters side by side cannot help but perceive them as coming from one creative source." Id. at 1004-05. Here, the overwhelming impression is of dis similarity, and the Court cannot imagine that the dragon images (as distinguished from the mere idea of putting a dragon on pants) came from the same creative source. The Court's noted differences are merely illustrative of a factual finding which is difficult to explain beyond saying that the dragons are obviously and substantially dissimilar.
G. MORAL RIGHTS
Maharishi asserts that the alleged dragon-copying is a violation of its "moral rights," or rights of attribution and integrity, under the Visual Arts Rights Act ("VARA"), 17 U.S.C. § 106A. That claim must fail for the same reasons that the Copyright Act claim fails. Additionally, that statute is available only to "author[s] of a work of visual art." Id. The dragon images at issue here plainly do not qualify as "work[s] of visual art" under the statute. See 17 U.S.C. § 101 (defining "work of visual art," in relevant part as "a painting, drawing, print, or sculpture, existing in a single copy, in a limited edition of 200 copies or fewer that are signed and consecutively numbered by the author ...").
H. LEAVE TO AMEND
Although generally disfavored,
For the reasons discussed, it is hereby
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