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Roulo v. Russ Berrie & Co.

United States Court of Appeals for the Seventh Circuit

June 5, 1989, Argued ; October 2, 1989, Decided

Nos. 88-2270, 88-2600

Opinion

 [***1425]  [*934]   CUMMINGS, Circuit Judge

Defendant, Russ Berrie & Co., Inc. (Berrie), appeals from a judgment entered on a jury verdict of $ 4.3 million in favor of plaintiff, Georgia Lee Miller Roulo (Roulo), for infringement of her copyright and trade-dress rights in a greeting card line known as "Feeling Sensitive" (FS) cards. Roulo's FS cards are single-faced greeting cards with engraved sentimental messages appropriate for holidays and other emotional occasions. She first introduced her FS cards in July 1977 and promoted them herself until October of 1977, when she began negotiations with Berrie for [**2]  a distribution agreement. The parties entered into a two-year contract under which Berrie would exclusively manufacture, distribute and sell FS cards, remitting 10% of the sales receipts to Roulo as compensation for the use of her cards, while Roulo retained the ownership of her copyright and trade dress.

The FS cards were sold by Berrie pursuant to the agreement from approximately April 1978 to April 1980. Roulo indicated in late 1979 that she did not intend to renew the contract, prompting Berrie to begin development of a comparable greeting card line to be known as "Touching You" (TY) to substitute for the lost FS product, which it introduced in July 1980 at the Chicago Gift Show. Roulo observed the TY line at the Chicago Gift Show where she was also promoting another line of greeting cards. This suit for infringement of her FS line under the Lanham (15 U.S.C.  [*935]  § 1051, et seq.) and Copyright Acts (17 U.S.C. § 101, et seq.) was filed in April 1982.

Roulo's action was tried to a jury in a bifurcated trial of liability and damages. The jury returned a verdict in her favor under both the Lanham and Copyright Acts,  [**3]  awarding Roulo $ 4.3 million in damages based on Berrie's profits from the TY line. Berrie has launched an exhaustive attack on the jury's verdict and the district judge's rulings on pre-trial and post-trial motions. Roulo has cross-appealed from the district judge's denial of attorney's fees.

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886 F.2d 931 *; 1989 U.S. App. LEXIS 15079 **; 12 U.S.P.Q.2D (BNA) 1423 ***; Copy. L. Rep. (CCH) P26,478

GEORGIA LEE MILLER ROULO, Plaintiff-Appellee, Cross-Appellant, v. RUSS BERRIE & CO., INC., Defendant-Appellant, Cross-Appellee

Subsequent History:  [**1]  Rehearing Denied, November 9, 1989. Reported at: 1989 U.S. App. Lexis 19156.

Prior History: Appeal from the United States District Court for the Northern District of Illinois, Eastern Division. No. 82 C 2668 -- Charles P. Kocoras, Judge.

CORE TERMS

cards, trade dress, infringement, greeting card, profits, color, abandonment, display, stripes, resume, verse, attorney's fees, trade-dress, lines, rack, secondary meaning, marketed, damages, substantially similar, deductions, trademark, header, copyright protection, certiorari denied, district judge, side-by-side, contends, features, messages, wilful

Trademark Law, Subject Matter of Trademarks, Nontraditional Trademarks, Color Marks, Conveyances, General Overview, Entertainment Industry Falsity & Performance Misattribution, Trade Dress Protection, Labels, Packaging & Trade Dress, Business & Corporate Compliance, Causes of Action, Likelihood of Confusion, Consumer Confusion, Eligibility for Trademark Protection, Distinctiveness, Terms Requiring Secondary Meaning, Strength of Trademark, Abandonment, Intentional Abandonment, Intentional Nonuse, Evidence, Burdens of Proof, Burdens of Production, Infringement Actions, Burdens of Proof, Defenses, Trademark Cancellation & Establishment, Particular Subject Matter, Slogans, Descriptive & Laudatory Terms, Terms With Inherent Distinctiveness, Federal Unfair Competition Law, False Designation of Origin, Palming Off, Similarity of Marks, Appearance, Meaning & Sound, Factors for Determining Confusion, Appearance, Copyright Law, Elements, Copying by Defendants, Access, Copyright Infringement Actions, Civil Infringement Actions, Substantial Similarity, Presumptions, Scope of Copyright Protection, Restoration From Public Domain, Subject Matter, Protected Subject Matter, Limited Protection for Ideas, Collective & Derivative Works, Collective Works, Deposit & Registration Requirements, Registration, Literary Works, Graphic, Pictorial & Sculptural Works, Civil Procedure, Jury Trials, Jury Instructions, Criminal Law & Procedure, Counsel, Right to Counsel, Admissibility, Expert Witnesses, Damages, Types of Damages, Infringement Profits, Profits, Judicial Officers, Judges, Discretionary Powers, Lanham Act, Remedies, Remedies, Compensatory Damages, Measurement of Damages, Attorney Fees & Expenses, Basis of Recovery, Statutory Awards, Costs & Attorney Fees