Page:Alart Associates v. Aptaker (279 F.Supp. 268).pdf/3

 suffered by them or the public as a result of plaintiff’s mistake. On the contrary, the name “Alart, Inc.” appears sufficiently close to plaintiff’s full name to identify plaintiff as the copyright owner, so that the public would be aware of the existence of its copyright and not be misled. In the absence of prejudice, an innocent clerical error in the application and certificate of registration, unaccompanied by fraud, does not invalidate the copyright or render it incapable of supporting an infringement action. See United States v. Backer, 134 F.2d 533 (2d Cir. 1943); Advisors, Inc. v. Weisen-Hart, Inc., 238 F.2d 706 (6th Cir. 1956), cert. denied, 353 U.S. 949, 77 S.Ct. 861, 1 L.Ed.2d 858 (1957); Key West Hand Print Fabrics, Inc. v. Serbin, Inc., 269 F.Supp. 605 (S.D.Fla.1966); Wrench v. Universal Pictures Co., 104 F.Supp. 374 (S.D.N.Y.1952); Baron v. Leo Feist, Inc, 78 F.Supp. 686 (S.D.N.Y.1948), affd., 173 F.2d 288 (2d Cir. 1949). The result might well be different if plaintiff had failed to file any certificate of incorporation, cf. Haas v. Leo Feist, Inc., 234 F. 105 (S.D.N.Y.1916), but, as in Allen v. Walt Disney Prods., 41 F.Supp. 134 (S.D.N.Y.1941), where it was similarly contended that an infringement action could not be maintained because the copyright was registered in the name of “The Thornton Allen Company” whereas the certificate of incorporation was filed under the name of “T. W. Allen Company”, "“the difference between the name set forth in the certificate [of incorporation] and the name on the copyright is at most a slight variation and is not material. The name on the copyright notice gives sufficient notice to the public of the name of the owner of the composition upon which copyright is claimed, and the date when this right was obtained. That is all that the statute requires.” 41 F.Supp. at 135."

Accordingly, defendants’ motion being totally without merit, is denied. Since defendants have twice before raised this frivolous and dilatory contention, first on their prior motion for summary judgment and second on their motion for reargument of that motion, both of which efforts were unsuccessful, and it is difficult to believe that the present motion has been made in good faith, it is ordered pursuant to Rule 56(g), F.R.Civ.P., that within ten (10) days from the date of this decision defendants shall pay to plaintiff $300 as the amount of reasonable expenses, including reasonable attorney’s fees, which plaintiff has thus been caused to incur. See Munson Line, Inc. v. Green, 6 F.R.D. 470 (S.D.N.Y.1947).

So ordered.