Roulo v. Russ Berrie & Co.

Georgia Lee Miller Roulo (plaintiff) owned a copyright and trade-dress rights greeting-card line called Feeling Sensitive (FS). The FS cards were beige, single-sided, no-fold, brown-inked cards that used Roulo’s handwriting and sentimental verses with frequent ellipses. The FS card writing appeared between vertical borders that each featured four stripes: one brown and one colored stripe between two silver foil stripes. From about April 1978 to April 1980, the FS cards were sold under a distribution agreement between Roulo and Russ Berrie & Company, Inc. (Berrie) (defendant). In late 1979, Roulo notified Berrie that Roulo did not intend to renew the agreement. Berrie then began developing its own greeting-card line, Touching You (TY). Like the FS cards, the TY cards had similar sentimental verses; were priced identically, i.e., 80 cents; and were single-sided brown-inked cards with messages in cursive. However, the background of the TY cards was cream instead of beige. The TY cards also used border stripes, but only two colored stripes on the left side and a single colored stripe on the right side, and no foil strips. However, the TY cards depicted a foil butterfly upon the two left-hand stripes. Both the FS and the TY cards were displayed in four-sided, freestanding, rotating racks holding 32 cards. Berrie sold its TY cards through the same retailers that sold the FS cards during the parties’ distribution agreement. Roulo obtained copyright registrations for both the FS cards and a rack display header featuring her likeness. Roulo sued Berrie in the United States District Court for the Northern District of Illinois, asserting claims for trade-dress infringement and copyright infringement. The parties tried the action to a jury, which rendered a verdict for Roulo on both claims, awarding $4.3 million in damages. Berrie appealed.