Ideal Toy Corporation v. Sayco Doll Corporation

302 F.2d 623, 5 Fed. R. Serv. 2d 1004, 133 U.S.P.Q. (BNA) 104, 1962 U.S. App. LEXIS 5489

• Court: Court of Appeals for the Second Circuit
• Decided: April 3, 1962
• Docket: 87, Docket 26918
• Status: Published

Opinions

HINCKS, Circuit Judge.

We have before us an appeal from Judge Dimock’s order granting a preliminary injunction and an appeal from Judge Bryan’s denial of a motion to vacate or modify the injunction.

Plaintiff Ideal brought the original action against Sayco on December 7, I960,, claiming that defendant’s “Chubby Toddler” doll was copied from plaintiff's copyrighted “Saucy Walker.” Judge Dimock, in an unreported order, granted a preliminary injunction on December 15, 1960. The evidence before Judge Dimock consisted of the Sayco doll, the Ideal doll, the Ideal copyright, and the self-serving affidavits of the parties. He found that “A visual comparison between copies of plaintiff’s Saucy Walker. doll and defendant’s Chubby Toddler doll establishes that the head of defendant’s doll incorporates so many distinctive features and characteristics of the head of plaintiff’s doll as to lead to the conclusion prima, facie that defendant’s doll head was copied from plaintiff’s * * Sayco appealed.

Judge Dimock’s factual finding of similarity and probable copying, while not necessarily one we would make ourselves, certainly was not clearly erroneous within the meaning of Rule 52(a), Fed.Rules Civ.Proc., 28 U.S.C.A. And. to the extent that the granting of a preliminary injunction is a matter for the-trial court’s discretion, see Perry v. Perry, 88 U.S.App.D.C. 337, 190 F.2d 601, 602 (1951); Doeskin Products v. United Paper Co., 195 F.2d 356 (7th Cir. 1952); 7 Moore, Federal Practice ¶ 65.04 [2] (2d ed. 1955), we cannot say that, on the evidence before him, Judge Dimock’s order was an abuse of discretion. It is-affirmed.

Subsequent to the granting of the preliminary injunction, on March 3, 1961, Sayco filed an answer and counterclaim,. adding as a defendant to the counterclaim the Goldberger Doll Manufacturing Company. Sayco charged that Goldberger and Ideal had conspired to suppress the fact that the disputed doll head was in the public domain, and to set up a monopoly. The nature of this claim became clearer on June 15, when Sayco, moving before Judge Bryan to vacate the injunction, claimed that Goldberger had marketed an uncopyrighted doll, more similar to Sayco’s than to Ideal’s, prior to either’s entry into the market; that Ideal had filed a complaint against Goldberger but that the complaint had been dropped in pursuance of a “deal” between Ideal and Goldberger. By the deal, the latter would suppress its doll, the better for Ideal to acquire a monopoly of all similar doll heads. Judge Bryan denied this motion and from this order also Sayco appeals.

It was proper, to be sure, for Judge Bryan to take jurisdiction of the motion pursuant to Rule 62(c), Fed.Rules Civ. Proc., which permits modification of injunction orders during the pendency of an appeal. But this rule is described as “merely expressive of a power inherent in the court to preserve the status quo where, in its sound discretion, the court deems the circumstances to justify.” 7 Moore j[ 62.05; see United States v. El-O-Pathic Pharmacy, 192 F.2d 62 (9th Cir. 1951); Shinholt v. Angle, 90 F.2d 297, 298 (5th Cir.), cert. denied 302 U.S. 719, 58 S.Ct. 40, 82 L.Ed. 555 (1937).

Of course, absent an appeal, a district court has complete power over its interlocutory orders. John Simmons Co. v. Grier Bros., 258 U.S. 82, 42 S.Ct. 196, 66 L.Ed. 475 (1922); 7 Moore ¶ 60.16 [4]. And, absent an appeal, it lay within the discretion of the district court to consider newly presented evidence, such as the Goldberger doll. Marconi Wireless Telegraph Co. v. United States, 320 U.S. 1, 46-49, 63 S.Ct. 1393, 87 L.Ed. 1731 (1943).

Once the appeal is taken, however, jurisdiction passes to the appellate court. Thereafter the appellant is not usually entitled as of right to present new evidence or argument to the trial court, which in the exercise of a sound discretion will exercise jurisdiction only to preserve the status quo as of the time of appeal. Appellant’s proper procedure is then to request leave of the court of appeals to proceed in the lower court. He need not even dismiss his appeal, for we have always been ready to suspend proceedings while new matter was introduced below. See, e. g., Triumph Hosiery Mills, Inc. v. Triumph International Corp., 191 F.Supp. 937 (S.D.N.Y.1961). But absent permission of the appellate court to reopen, sound judicial administration demands that unless the judge is satisfied that his order was erroneous he shall use his power under Rule 62(c) only to preserve the status of the case as it sits before the court of appeals. The right of a defendant to full hearing on the merits coupled with the interim protection afforded by the bond required under Rule 65(e), will generally suffice for the accomplishment of justice without the delays resulting from vacillating rulings.

Under the circumstances here, we think Judge Bryan could not properly change the whole posture of the case on appeal by vacating Judge Dimock’s injunction. Thus Judge Bryan’s order denying the motion was nonetheless right, though based on an erroneous belief that the injunction was a “final” judgment or order within the purview of Rule 60(b).

Affirmed as to both orders.