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A rug designer has raised issues of fact regarding a wholesaler’s access to its copyrighted designs and the degree of similarity between its design and an allegedly infringing rug, the 5th U.S. Circuit Court of Appeals ruled Jan. 24 ( Peel & Co. Inc. v. The Rug Market, No. 99-31051, 5th Cir.). The court reversed the entry of summary judgment for The Rug Market in a copyright infringement action brought by Peel & Co. Inc. At issue is Peel’s “Directoire” rug, designed in 1991 and later copyrighted, which features two rows of panels, each of which is decorated with a floral design and trompe d’oeil triangular shading intended to suggest a coffered ceiling. The design also features laurel garlands, punctuated by rosettes, surrounding each panel, and an outer border of repeated squares. 4,000 SOLD IN U.S. Approximately 4,000 copies of the hand-woven wool rug, priced at $1,000, have sold throughout the United States since 1993; the rug is also displayed in a number of showrooms and has appeared in numerous trade shows. The Rug Market, an importer-wholesaler located in Los Angeles, began selling the “Tessoro” rug, manufactured by Ambadi Enterprises in New Delhi, India, in 1998. The rug is machine-woven of jute and sells for $99. Peel alleged that the Tessoro was a copy of the Directoire and that any differences between the two rugs make the Tessoro cheaper and faster to manufacture. After The Rug Market failed to comply with a written demand that it cease selling the Tessoro, Peel sued in the U.S. District Court for the Eastern District of Louisiana, alleging copyright infringement. The court granted The Rug Market’s motion for summary judgment, finding that Peel failed to produce evidence showing that it would meet its burden of proving that Ambadi had access to the Directoire and holding that the rugs were not sufficiently similar to imply access. Peel appealed. ACCESS Reversing and remanding, the 5th Circuit said that factual questions remain as to “whether the Directoire was widely disseminated among those involved in the United States rug trade, thus providing both Rug Market and Ambadi with access to the Directoire.” The panel cited the U.S. District Court for the Southern District of New York’s ruling in Odegard Inc. v. Costikyan Classic Carpets Inc. (963 F.Supp. 1328 [S.D. N.Y. 1997]), in which adequate evidence of access was found based on the dissemination of three carpets and the alleged infringer’s opportunities to see them. “Those opportunities included a visit by one of the defendants to a designer showroom next door to another showroom where one of the plaintiff’s carpets were displayed; the defendants’ attendance at a carpet show where two of the plaintiff’s carpets were shown; and a defendant’s examination of the type of magazine in which two of the plaintiff’s carpets were advertised,” the 5th Circuit said. “Although the access evidence in Odegard may be more specific than that proffered by Peel, it appears to be of the same type.” SIMILARITY Moreover, the court said, Peel has raised factual questions on the issue of similarity. “We believe that reasonable minds — particularly minds of reasonable laymen — could differ as to whether these two rugs are probatively similar,” the panel said. “Even though the Tessoro design omits some of the more complex elements employed in the design of the Directoire, an average lay observer could find the appearance of the two rugs similar enough to support a conclusion of copying. “The rugs have the same overall proportion, and generally employ the same color schemes. They use the same number of repeating panels, each of which features shaded triangles and a central floral medallion. Their repeating square-patterned borders also are similar. We cannot agree with the district court that the two rugs are so dissimilar that, as a matter of law, no reasonable jury could find copying here.” Peel is represented by Steven G. Bullock of Stone, Pigman, Walther, Wittmann & Hutchinson in New Orleans. Rug Market is represented by Ellis B. Murov and Charles F. Seemann III of Deutsch, Kerrigan & Siles in New Orleans. � Copyright 2001 Mealey Publications, Inc.

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