HQ 458962: Suspected infringement of fabric design pattern # 816 (Customs ACS Recordation No.Cop-93-00063; Copyright Registration No. VA 522 719)

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 458962

September 26, 1994

CPR-3     CO:R:IT:I 458962   VEA

CATEGORY: Copyright

District Director
U.S. Customs Service
San Francisco, California
Attn: Kyle Allard

RE:  Suspected infringement of fabric design pattern # 816 (Customs ACS Recordation No.
Cop-93-00063; Copyright Registration No. VA 522 719) 

Dear Sir:

     Your correspondence dated September 1, 1994, requests our opinion on whether a
shipment of quilts containing fabric swatches which bear a rose pattern infringe the above-referenced copyright recorded with U.S. Customs. 

FACTS:

     You forwarded samples of two quilts to this office for our opinion on whether they
infringe copyrighted fabric design pattern # 816 owned by Concord Fabrics Incorporated.  The
imported articles are part of a shipment listed as entry number 607-0133790-3.  They contain
fabric swatches which bear a rose pattern suspected of infringing pattern # 816.  The importer,
Unique Quilts, admitted to Customs officials in a telephone conversation that it had  copied the
protected pattern.

ISSUE:

Whether the fabric swatches on the imported quilts infringe Concord Fabric's copyrighted
pattern # 816?

LAW AND ANALYSIS:

     Section 602(b) of the Copyright Act, 17 U.S.C. Section 602(b) prohibits the
importation of articles which infringe a copyright.  Under Section 603(b)(2), the person
seeking exclusion of infringing merchandise pursuant to Section 602(b) must furnish proof, of
a specified nature and in accordance with prescribed procedures, that the copyright in which
such person claims an interest in is valid and that the importation would violate the prohibition
in Section 602 of the Copyright Act.

     To prove infringement in copyright cases, the copyright owner must demonstrate: (a)
ownership of a valid copyright; (b) unauthorized copying of the protected material; and (c)
that the copying constituted unlawful appropriation.  Arnstein v. Porter, 154 F. 2d 464 (2nd

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Cir. 1946) and  Warner Bros, Inc. v. American Broadcasting Companies, 654 F. 2d 204 (2nd
Cir. 1981).  We note that courts have held that the scope of copyright protection for fabric
designs is narrow and extends only to the work's particular expression of an idea, not to the
idea itself.  See: Folio Impressions, Inc. v. Byer California; Macy's New York, Inc.; Lida
Manufacturing Co.; and John Does, 937 F.3d 759 (2nd Cir. 1991).  Since roses are articles
which appear in nature, we would only grant copyright protection to the particular roses and
pattern in which they are arranged.     

     Under Section 410 of the Copyright Act, 17 U.S. C. Section 410(c), "a certificate of
registration made before or within five years after the first publication of the work shall
constitute prima facie evidence of the validity of the copyright and of the facts stated in the
certificate".  Concord Fabrics Inc. has provided Customs with a copy of the registration
certificate issued by the U.S. Copyright Office for the pattern allegedly infringed in this case. 

     Proof that a copyrighted work has been copied may be shown by direct or indirect
evidence.  Direct evidence may include an admission of copying by the importer or testimony
by a witness to the copying {cite to case}.  The importer has admitted to copying the
copyrighted pattern.  Thus, the only question to resolve is whether the copying unlawfully
appropriates the protected work.     

     Courts generally apply a "substantial similarity" test to determine whether an
infringing article unlawfully appropriates a copyrighted work.  A finding of substantial
similarity means that the infringing article copies a substantial and material amount of the
protected work.  Atari, Inc. v. North American Philips Consumer Electronics Corp.,  672 F.
2d 607 (7th Cir. 1982), cert denied, 459 U.S. 880 (1992).  The standard courts apply to
determine whether an alleged infringing article is "substantially similar" to a copyrighted
work is that of the "ordinary observer".  Using the ordinary observer test, courts have held
that an article is infringing if it is so similar to the copyrighted work that an ordinary
reasonable person would conclude that it unlawfully appropriates a substantial and material
amount of the copyrighted work.

     Applying this test to the imported articles, we find that the quilts at issue contain a
flower pattern which is substantially similar to that of the copyrighted pattern.  The
copyrighted pattern consists of numerous open rose petals arranged in various horizontal,
vertical and up and down positions which are located in close proximity to each other on the
fabric.  The open petals are surrounded by three or four completely open petals.  The
imported articles contain fabric swatches which incorporate roses arranged in an identical
pattern.  Thus, an "ordinary reasonable person" would conclude that they unlawfully
appropriate a substantial and material amount of the copyrighted pattern.


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HOLDING:

     We find that the fabric swatches on the imported quilts infringe Concord Fabric's
copyrighted pattern #816.  Therefore, they are subject to seizure and forfeiture under 17
U.S.C. Section 603 and 19 C.F.R. Section 133.42 of the Customs Regulations.  If it is
shown to the satisfaction of the District Director that the importer had no reasonable grounds
for believing that its actions constituted a violation of the law, the article may be returned to
the country of export pursuant to 19 C.F.R. Section 133.47. 




                         John F. Atwood, Chief
                         Intellectual Property Rights Branch