301 F2d 286 Prestige Floral Societe Anonyme v. Zunino-Altman Inc

301 F.2d 286

ZUNINO-ALTMAN, INC., Defendant-Appellee.

No. 299.

Docket 27375.

United States Court of Appeals Second Circuit.

Argued March 8, 1962.

Decided March 8, 1962.

Kane, Dalsimer & Kane, New York City (Emil Scheller, New York City, of counsel), for plaintiff-appellant.

Curtis, Morris & Safford, New York City (Daniel L. Morris, New York City, of counsel), for defendant-appellee.

Before WATERMAN, KAUFMAN and MARSHALL, Circuit Judges.


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Plaintiff, owner of a copyright upon an artificial cactus dahlia, made of polyethylene, complains that defendant has imitated its dahlia and infringed its copyright, and seeks a permanent injunction against continued imitation and infringement, for damages, and for other relief. Pending hearing upon the merits of its complaint, plaintiff obtained, ex parte, a restraining order, and prayed that a preliminary injunction also issue to remain in force until final hearing. Defendant moved to vacate the ex parte restraining order. On the cross-motions the district judge below in a reasoned opinion vacated the temporary restraining order and denied the motion for the preliminary injunction. Plaintiff appeals.


We affirm the district court. We are unpersuaded that in the posture of the case before the district judge the plaintiff made the prima facie showing required of it to obtain a preliminary injunction.