Fraternity Collection, LLC v. FARGNOLI

Filing 63

ORDER denying 37 Motion for Declaratory Judgment. Signed by District Judge Carlton W. Reeves on 03/31/2015 (AC)

IN THE UNITED STATES DISTRICT COURT
FOR THE SOUTHERN DISTRICT OF MISSISSIPPI
NORTHERN DIVISION
FRATERNITY COLLECTION, LLC

PLAINTIFF

V.

CAUSE NO. 3:13-CV-664-CWR-FKB

ELISE FARGNOLI, d/b/a
FRANCESCA JOY

DEFENDANT
ORDER

Before the Court is the plaintiff’s motion for declaratory judgment. Docket No. 37. After
reviewing the evidence, arguments, and the law, the motion will be denied.
The parties’ factual allegations have been recited in a prior order and need not be
repeated here. Docket No. 62. In this motion, Fraternity Collection requests a declaration that its
sorority-themed line of pocket designs does not infringe upon Elise Fargnoli’s sorority-themed
line of pocket designs.
To determine whether an instance of copying is legally actionable, a side-by-side
comparison must be made between the original and the copy to determine whether
a layman would view the two works as substantially similar. Although this
question typically should be left to the factfinder, summary judgment may be
appropriate if the court can conclude, after viewing the evidence and drawing
inferences in a manner most favorable to the nonmoving party, that no reasonable
juror could find substantial similarity of ideas and expression.
Peel & Co. v. The Rug Mkt., 238 F.3d 391, 395 (5th Cir. 2001) (quotation marks and citations
omitted). “Under the ordinary observer or audience test used in making this factual
determination, a layman must detect piracy without any aid or suggestion or critical analysis by
others. The reaction of the public to the matter should be spontaneous and immediate.” Id. at 398
(quotation marks and citations omitted).
The Court has considered Fraternity Collection’s designs in Exhibit A alongside
Fargnoli’s designs in Exhibit B. It has given less weight to the fact that both designs contain the

specific letters, flowers, and other symbols used by a particular sorority, and more weight to the
artistic expression by which the symbols are presented. That is because all sorority-themed
products are likely to use a sorority’s particular letters or symbols in order to achieve the
associational purpose and idea inherent in the product.
In any event, it is evident that the competing designs have certain similarities. They both
use sorority letters, flowers, symbols, and, in some cases, the name of the sorority spelled out.
The competing designs also have a similar, “floating” look to them. That is, the letters and
symbols appear to be floating or jumbled in space.
Despite the similarities, there are differences in both the design of the pockets and in
what sorority-specific features are included. Whereas Fraternity Collection’s designs are mostly
two- and three-toned, Fargnoli’s designs usually (but not always) leave the distinct impression of
being monochrome even where there are in fact two colors buried in the design. Fraternity
Collection’s designs devote significant space to the year of the sorority’s founding, but that is not
a recurring element of Fargnoli’s designs. Fraternity Collection’s designs devote much more
space to a sorority’s symbol, while Fargnoli’s devote more space to the sorority’s flower.
Finally, Fraternity Collection’s designs have a “cleaner” look to them, which contrasts with
Fargnoli’s less precise, “hand painted” style.
It may be the case that Fraternity Collection’s designs are similar, but not substantially
similar, to Fargnoli’s. But that is an awfully close call to make at this juncture. At what is
essentially the summary judgment stage, fact disputes and close calls favor the non-movant –
Fargnoli. If the “typical[]” case lets the jury decide the question of substantial similarity, the
Court is hesitant to deviate from that instruction given the evident similarities between these two
sets of designs. Peel, 238 F.3d at 395 (reversing district court and setting question of substantial

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similarity for trial). It is unwilling to, today, hold that “no reasonable juror could find substantial
similarity of ideas and expression” between the parties’ designs. Id.
For these reasons, the plaintiff’s motion is denied.
SO ORDERED, this the 31st day of March, 2015.
s/ Carlton W. Reeves
UNITED STATES DISTRICT JUDGE

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