Page:Huk-A-Poo Sportswear v. Little Lisa.pdf/3

 counsel for Little Lisa, who represented that “the defendant cannot make an adequate and effective presentation to the Court on any motion for a preliminary injunction unless some limited discovery is had as to three principal issues.” Transcript of November 24, 1975, at 5. These principal issues were: (1) whether the copyright protected the plaintiff’s label rather than the design of the shirt; (2) whether the design was truly original; and (3) whether the copyright notice was sufficient.

On December 8, 1975, the parties appeared in Court. The defendant did not submit answering papers but instead requested a further adjournment of the motion, and the ensuing discussion focused primarily on discovery matters. At the hearing, the Court received a facially valid certificate of copyright by the plaintiff, and found “obvious copying” upon examination of the plaintiff’s shirt in comparison to the alleged infringing one. Transcript of December 3, 1975, at 9. Having received no opposing papers from the defendant and having not been convinced by the defendant’s assertions of irreparable harm, the Court granted a preliminary injunction in favor of the plaintiff. Discovery continued, and on April 15, 1976 Little Lisa moved under Rule 60(b)(5) to vacate the preliminary injunction.

A motion for relief from a judgment or order made upon the ground that “it is no longer equitable that the judgment should have prospective application” is addressed to the discretion of the district court, 7 Moore’s Federal Practice ¶¶ 60.19, 60.26[4] (2d ed. 1975) (“Moore’s”), and depends upon a showing of changed circumstances. The term “changed circumstances” refers to events which occurred subsequent to entrance of the order and which make it unfair to continue the injunction. United States v. Swift & Co., 286 U.S. 106, 114–15, 52 S.Ct. 460, 76 L.Ed. 999 (1932); Tanner Motor Livery, Ltd. v. Avis, Inc., 316 F.2d 804, 810 (9th Cir.), ''cert. denied'', 375 U.S. 821, 84 S.Ct. 59, 11 L.Ed.2d 55 (1963); American Optical Co. v. Rayex Corp., 291 F.Supp. 502 (S.D.N.Y.1967) (Tenney, J.).

The mere fact that the injunction creates hardships for the enjoined party is not in and of itself a changed circumstance. SEC v. Thermodynamics, Inc., 319 F.Supp. 1380 (D.Colo.1970), aff’d, 464 F.2d 457 (10th Cir. 1972), ''cert. denied'', 410 U.S. 927, 93 S.Ct. 1358, 35 L.Ed.2d 588 (1973).

Little Lisa’s position on this motion is not that the underlying facts and circumstances have changed, but that there is now available sufficient information to challenge the validity of the plaintiff’s copyright. The arguments go to the merits of the plaintiff’s infringement claims and, although some of them could have been raised earlier, they are raised for the first time on this motion. Other arguments are dependent upon the discovery that was conducted subsequent to the issuance of the preliminary injunction. Little Lisa’s arguments, in sum, constitute a detailed and cogent defense to the action.

Nevertheless, the defendant’s motion practice is defective since it is well established that Rule 60(b) applies only to final orders and not to interlocutory degrees such as that contested here. Ideal Toy Corp. v. Sayco Doll Corp., 302 F.2d 623 (2d Cir. 1962); 7 Moore’s ¶ 60.20. However, the Court will entertain the application under its continuing plenary power over its interlocutory orders, John Simmons Co. v. Grier Bros., 258 U.S. 82, 42 S.Ct. 196, 66 L.Ed. 475 (1922); Ideal Toy Corp. v. Sayco Doll Corp., supra; 7 Moore’s ¶ 60.16[4], under which the Court is not bound by Rule 60(b)(5)’s strict standard of “changed circumstances” in reconsidering the earlier order but may in its discretion apply general equitable principles in its consideration of the motion. The Court will therefore focus only upon the relative significance of newly presented evidence and discern whether the arguments currently posed could have been raised at the time the preliminary injunction was issued.

At that time the defendant made general allegations as to the merits of the plaintiff’s case but submitted no opposing papers and failed to persuade the Court that the hardships tipped in its favor.