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

301 F.2d 286

PRESTIGE FLORAL, SOCIETE ANONYME, Plaintiff-Appellant,
v.
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.

PER CURIAM.

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1

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.

2

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.