HQ 452061: Suspected copyright infringement of the Mantae Catch Game(VA 423-007) protecting the etching of a baseball glove on thehandle side of a paddle (Customs recordation 91-00175, June 24,1991)

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 452061

                        January 14, 1992

TRA CO:R:P IPR 452061 TPT

CATEGORY:  Copyright

Port Director of Customs
700 Doug Davis Drive
Atlanta, GA   30354

RE:  Suspected copyright infringement of the Mantae Catch Game
(VA 423-007) protecting the etching of a baseball glove on the
handle side of a paddle (Customs recordation 91-00175, June 24,
1991)

Dear Sir:

     This is in response to a request for a substantive decision
on the issue of copyright infringement requested by a supervisory
import specialist in Atlanta.

ISSUE:

     Whether a catch ball game paddle which has the etching of a
baseball glove on the handle side has a degree of similarity
sufficient to invoke the regulatory procedures under either
section 133.42 or 133.43 (19 C.F.R. 133.42, 133.43) of the
Customs regulations?

LAW AND ANALYSIS:

     Imported articles which infringe a copyright are prohibited
importations under section 602(b) of the Copyright Act (17 U.S.C.
602(b)) and such articles are subject to seizure and forfeiture
under section 603(c) of the Copyright Act (17 U.S.C. 603(c)).
These articles are seized and forfeited in the same manner as
goods imported in violation of the Customs revenue laws.
Alternatively, infringing articles may be returned to the country
of export whenever it is shown to the satisfaction of the
Secretary of the Treasury (Customs) that the importer had no
reasonable grounds for believing that its acts constituted a
violation of law.  19 C.F.R. 133.47.  The party claiming that an
imported article is infringing shall bear the burden of proof.
19 C.F.R. 133.43(c)(1).

     Initially, we conclude that the work deposited with Customs
is subject to protection.  The submission of a copyright
registration is prima facie evidence of copyright ownership and
of the validity of the copyright.  17 U.S.C. 410(c); Quaker Oats
                                2


Co. v. Mel Appel Enterprises, Inc., 703 F. Supp. 1054 (S.D.N.Y.
1989).

     The examination of the imported article at this stage, i.e.,
retaining imported merchandise within Customs's custody pursuant
to section 1499 (19 U.S.C. 1499) to determine if any laws have
been violated, is to decide whether there is sufficient
similarity to invoke the procedures referenced above.  It is
essential that even at this preliminary stage that the "ordinary
observer" test be used for concluding whether to release, detain
or seize the merchandise.  Therefore, we must decide whether the
ordinary observer would be disposed to overlook the disparities
of the work and would regard its aesthetic appeal as the same.
See Gund, Inc. v. Russ Berrie and Co., Inc., 701 F. Supp. 1013
(S.D.N.Y. 1988).

     It has been previously determined that to the degree that
the similarity between the copyrighted work and an alleged
infringing work inheres only in the general ideas expressed, the
similarities are not infringing; therefore, it follows that
similarity in expression is non-infringing to the extent the
nature of the creation makes similarity necessary and that
"indispensable expression" of a generalized idea may be protected
only against virtually identical copying.  Gund, Inc. v. Smile
International, Inc., 691 F. Supp. 642, 645 (E.D.N.Y. 1988),
aff'd, 872 F.2d 1021 (2d Cir. 1989); see Durham Industries, Inc.
v. Tomy Corporation, 630 F.2d 905 (2d Cir. 1980) (when the
protected work and the alleged infringing work express the same
idea, the similarity that inevitably stems solely from the
commonality of the subject matter is not proof of unlawful
copying).

     The etching on the circle-shaped protected work is made up
of narrow lines which outline the four fingers, the thumb, and
the "pocket" of a baseball glove.  The surface is smooth in
appearance.  Near the end of the middle and ring fingers there
are intersecting lines to simulate where lacing might be on a
real glove.  In the "pocket" area there are dashed lines along
the edge to simulate stitching.  In the center of the "pocket"
there are curved lines conveying the appearance of a circular
pattern.

     The etching on the item shaped like a baseball glove to be
imported, while similar in that it is readily recognizable as a
baseball glove, is different.  The surface on this item is made
to appear "grainy".  Also, along the edge of the glove, in the
"pocket" area, and near the end of the middle and ring fingers
there are bolder, wider lines to simulate lacing around the
glove.  In the center of the "pocket" these bold lines are shown
in knots as well as along the edge of the small finger.

                                3


     The differences in the etchings are not so minor that they
can be easly overlooked.

HOLDING:

     We find that although the etching on the item to be imported
derives from the same idea as that of the copyrighted work, the
expression of the idea in tangible form is sufficiently different
so that it does not amount to infringement.  Therefore,
merchandise bearing etchings identical to the sample submitted
may be released.

                              Sincerely,



                              John F. Atwood, Chief
                              Intellectual Property Rights Branch