APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF NEW JERSEY.
Aldisert, Gibbons, and Higginbotham, Circuit Judges.
The major question for decision in this appeal from a preliminary injunction order barring a toy distributor from marketing a puzzle allegedly infringing upon the trademark rights of a competitor is whether the district court's order is sufficiently specific to give the parties fair notice of the conduct prohibited. A threshold issue is whether the district court erred in granting the preliminary injunction. We decide that the preliminary injunction was properly entered, but we will amend the language of the order. We affirm the judgment of the district court as modified.
Pursuant to an exclusive arrangement with the Hungarian inventor, Erno Rubik, appellee Ideal Toy Corporation distributes the "Rubik's Cube" puzzle. Ideal packages its puzzle in a clear plastic cylinder that is sealed to a black plastic base by a strip of black and gold tape displaying the legend "Rubik's Cube." The cube itself is composed of 26 smaller cubes presenting a total of 54 faces colored with six primary colors -- red, blue, green, yellow, orange, and white -- on a black gridwork. When sold, the cube is aligned to present six monochromatic faces, the "start position." Ideal holds no patent rights to Rubik's Cube. Appellant Plawner Toy Manufacturing Corporation imports and distributes an identical cube which it calls the "Wonderful Puzzler" and sells in packaging identical to Ideal's, except for the lettering on the tape strip which reads "Wonderful Puzzler" instead of "Rubik's Cube." Unlike Ideal, Plawner sells its cube puzzle in a variety of sizes and configurations.
Seeking to enjoin distribution of the Wonderful Puzzler, Ideal sued Plawner in the district court claiming unfair competition and common law trademark infringement under New Jersey law, appending these claims to a complaint that Plawner had violated § 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).*fn1 Specifically, Ideal alleged that Plawner had, without consent, imitated the packaging and trade dress*fn2 of Rubik's Cube so as to confuse the public and to palm off Plawner's product as Ideal's. Pending resolution of these claims, Ideal moved for a preliminary injunction. The district court found, inter alia, that Ideal was likely to prevail on the merits of its claims, and it granted the preliminary injunction.*fn3 Plawner appeals, invoking our jurisdiction under 28 U.S.C. § 1292(a) (1).
In SK&F, Co. v. Premo Pharmaceutical Laboratories, 625 F.2d 1055, 1066 (3d Cir. 1980), we set forth the limitations of our review:
The scope of our review of a trial court's discretionary ruling on an application for preliminary injunctive relief is narrow.
Unless the trial court abuses [its] discretion, commits an obvious error in applying the law, or makes a serious mistake in considering the proof, the appellate court must take the judgment of the trial court as presumptively correct.
A.O. Smith Corp. v. FTC, 530 F.2d 515, 525 (3d Cir. 1976). Moreover, the burden on an appellant seeking reversal of a trial court's determination on an application for a preliminary injunction is a heavy one. Oburn v. Shapp, 521 F.2d 142, 147 (3d Cir. 1975); Scooper Dooper, Inc. v. Kraftco Corp., 460 F.2d 1204, 1205 (3d Cir. 1972) (per curiam).
We turn now to appellant's principal contentions.
Plawner accuses Ideal of attempting to circumvent its lack of a patent monopoly by using trademark law as a device to secure equivalent insulation from competition. Plawner relies on Sears, Roebuck & Co. v. Stiffel Co., 376 U.S. 225, 11 L. Ed. 2d 661, 84 S. Ct. 784 (1964), and its companion, Compco Corp. v. Day-Brite Lighting, Inc., 376 U.S. 234, 11 L. Ed. 2d 669, 84 S. Ct. 779 (1964), in which the Supreme Court held that state laws of unfair competition may not be used to impose liability for copying an unpatented product and thereby effectively to produce a perpetual patent. Because of the strong policy against affording this equivalent ...