Clarification: Covington vs. ADF
July 12, 2004
Sipco Publications,
I represent American Decorative Fabrics LLC (''ADF'') in the copyright litigation brought by Covington in the Southern District of New York. Your July 6, 2004 article regarding this case contains a number of inaccuracies. This is particularly surprising since the correct information was previously supplied to Sipco.net by Gary Stein, COO of ADF.
First, Covington did not ''win'' the copyright case on April 5 and Covington has not ''prevailed'' on its claim of copyright infringement. The April decision by the Court was a preliminary ruling that related solely to the originality of Covington's design. While the Court upheld the validity of Covington's copyright, it did not rule that the ADF design was an infringement of Covington's Maxwell design. Indeed, the similarity of the two designs remains in dispute and will be the subject of a trial in the district court. Thus, it is not just the ''awarding of any damages'' that remains to be determined, but whether there is even an infringement.
Second, it is not true that ADF stopped selling the design at issue ''since the Court upheld the validity of Covington's copyright.'' As Gary Stein explained in his written statement provided to Sipco.net, ADF voluntarily agreed not to sell the design during the pendency of the lawsuit as soon as the suit was brought. There was no change in ADF's position as a result of the Court's decision. ADF has always been willing to forego selling the design until the matter is finally resolved by the Court. However, it continues to believe that it is important to fight the kind of overreaching claims made by Covington. If simple plaids can be protected, then the whole industry is injured by the anti-competitive effects. That is why ADF remains determined to fight this case.
Finally, your headline that ''Covington Sues ADF for Bootlegging Damages'' is a misnomer. There is no such thing as ''bootlegging'' damages and there is no claim of ''bootlegging.''
Richard S. Mandel
Cowan, Liebowitz & Latman, P.C
I represent American Decorative Fabrics LLC (''ADF'') in the copyright litigation brought by Covington in the Southern District of New York. Your July 6, 2004 article regarding this case contains a number of inaccuracies. This is particularly surprising since the correct information was previously supplied to Sipco.net by Gary Stein, COO of ADF.
First, Covington did not ''win'' the copyright case on April 5 and Covington has not ''prevailed'' on its claim of copyright infringement. The April decision by the Court was a preliminary ruling that related solely to the originality of Covington's design. While the Court upheld the validity of Covington's copyright, it did not rule that the ADF design was an infringement of Covington's Maxwell design. Indeed, the similarity of the two designs remains in dispute and will be the subject of a trial in the district court. Thus, it is not just the ''awarding of any damages'' that remains to be determined, but whether there is even an infringement.
Second, it is not true that ADF stopped selling the design at issue ''since the Court upheld the validity of Covington's copyright.'' As Gary Stein explained in his written statement provided to Sipco.net, ADF voluntarily agreed not to sell the design during the pendency of the lawsuit as soon as the suit was brought. There was no change in ADF's position as a result of the Court's decision. ADF has always been willing to forego selling the design until the matter is finally resolved by the Court. However, it continues to believe that it is important to fight the kind of overreaching claims made by Covington. If simple plaids can be protected, then the whole industry is injured by the anti-competitive effects. That is why ADF remains determined to fight this case.
Finally, your headline that ''Covington Sues ADF for Bootlegging Damages'' is a misnomer. There is no such thing as ''bootlegging'' damages and there is no claim of ''bootlegging.''
Richard S. Mandel
Cowan, Liebowitz & Latman, P.C
