UNITED STATES DISTRICT COURT CENTRAL DISTRICT OF CALIFORNIA
October 28, 2011
STAR FABRICS, INC., A CALIFORNIA CORPORATION, PLAINTIFF,
TARGET CORPORATION, A MINNESOTA CORPORATION; KANDY KISS OF CALIFORNIA, INC., A CALIFORNIA CORPORATION; MOREX ENTERPRISES, INC., DEFENDANTS.
The opinion of the court was delivered by: Dean D. Pregerson United States District Judge
PRELIMINARY ORDER RE: DISCUSSION OF PROFITS AT TRIAL
It has been established that Defendants Kandy Kiss of California, Inc. ("Kandy Kiss") and Target Corporation ("Target") infringed upon Plaintiff's copyright by selling dresses bearing Plaintiff's copyrighted pattern.
Defendant's Proposed Special Jury Instruction Number 2, now withdrawn, stated that Plaintiff may not recover profits from Defendants Kandy Kiss and Target if those defendants "did not earn any additional profits from selling the infringing garments than they would have earned if they sold non-infringing garments . . . ."
To the extent this statement suggests that profits may be measured with reference to sales of other, non-infringing garments, the statement is correct. Defendants could, for example, compare the infringing sales to sales of garments bearing different, non-infringing designs.
However, the reference to "non-infringing garments" is potentially misleading. Defendants may try to draw comparisons between the unauthorized sales that occurred here and hypothetical profits that Defendants would have earned if Defendants had been authorized to distribute the protected design. Such argument is likely to confuse the jury as to the law of profit disgorgement, on which the court will give instruction.
Accordingly, the parties shall not present evidence or argument regarding hypothetical profits Defendants would have realized if they had, by obtaining authorization to distribute Plaintiff's design, not infringed upon Plaintiff's copyright. Defendants may not, for example, argue that it would have cost them $5,000 to obtain permission to distribute Plaintiff's pattern so, therefore, only $5,000 of profit from Defendants' infringing sales is attributable to the infringement.
IT IS SO ORDERED.
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