“Dr. Nettleton, I ask you to turn to page twenty-one of the magazine, would you do that for me, please?”
Nettleton leafed through the magazine, found the page, and looked up.
“Do you see the title of the article on that page?”
“I do.”
“Would you read it to the Court, please?”
“The whole article?”
“Just the title, please.”
“The title is ‘The Use of Corrective Lenses in the Treatment of Strabismus.’”
“Thank you. Dr. Nettleton, would you call your eyeglasses a way of using corrective lenses in the treatment of strabismus?”
“No, I would not.”
“Well, isn’t Ms. Commins’s bear cross-eyed?”
“It is.”
“And isn’t ‘strabismus’ the proper medical term for this condition?”
“Yes, but…”
“And don’t your eyeglasses correct this condition?”
“Yes, but…”
“Then wouldn’t you agree that your design makes use of corrective lenses in the treatment of…”
“Mirrors. It makes use of mirrors.”
“Lenses, mirrors, all have to do with optics.”
“A mirror isn’t a lens. A mirror is a surface that forms an image by reflection. A lens forms an image by focusing rays of light. They are two separate and distinct…”
“Doesn’t your design demonstrate one way of treating the condition known as strabismus?”
“Only in the very loosest possible sense. We’re not talking about real strabismus here, we’re…”
“Yes or no, please.”
“Given the widest possible interpretation…”
“Your Honor?”
“Yes or no, Dr. Nettleton.”
“All right, yes.”
“Would you please turn to page twenty-five?”
Nettleton turned several pages, and again looked up.
“Do you see the drawings on that page?”
“I do.”
“Would you describe those drawings as specifications for lenses designed to correct the condition of strabismus?”
Nettleton studied the drawings.
“Yes, I would.”
“Would you say they’re identical to the drawings you made for Miss Commins?”
“Absolutely not.”
“Would you say they’re remarkably similar?”
“No, not at all. These are lenses designed to correct strabismus. My mirrors were designed to create an optical illusion.”
“These specifications were published in an industry journal in March of 1987. Would you agree that you had a reasonable opportunity to have seen them?”
“Yes, but I didn’t see them. And even if I had…”
“By comparison, would you say that your design adds more than a trivial amount of creativity to the design in this magazine?”
“I would say they’re entirely different.”
“Oh? In what way?”
“To begin with, the design in the magazine is for eyeglasses”
“Well, isn’t your design for eyeglasses?”
Nettleton rolled his eyes.
“Your Honor,” Brackett said.
“Your Honor,” I said.
“Answer the question, please.”
“My design is for reflecting mirrors,” Nettleton said wearily.
“Well, those are eyeglasses hanging around the bear’s neck, aren’t they?”
“No. They couldn’t possibly serve as a tool for correcting or improving vision.”
“They look like glasses to me.”
“Your Honor, please,” I said.
“Sustained.”
“Would you agree that they look like eyeglasses?”
“Yes, but they’re not eyeglasses. That is not their purpose.”
“But the basic design is similar to the one in the magazine, isn’t it?”
“No, the designs are not at all similar.”
“You know, of course, that Miss Commins submitted your specifications together with her application for copyright?”
He’s trying to invalidate the copyright, I thought.
“Yes, I know that.”
“How did you come by this information?”
“She told me.”
“Did you tell her that the eyeglasses for which she was seeking copyright as part of her design were not entirely original with you?”
“They were original!”
“Did you tell her that a design for similar eyeglasses had been published in 1987?”
“I didn’t know that. And besides, they’re not similar.”
“But a few minutes ago you described those published drawings as specifications for the use of corrective lenses in the treatment of strabismus, didn’t you?”
“You asked me to read the title of the article…”
“But you agreed, didn’t you, that the glasses were designed to do exactly that?”
“Yes, I did.”
“And you also agreed that your glasses were also designed to…”
“In the loosest possible sense, is what I…”
“In whatever sense, you agreed…”
“Objection, Your Honor.”
“Sustained. Get off it, Mr. Brackett.”
“Tell me, Dr. Nettleton, you said earlier that Miss Commins came to you in April to show you her original drawings for a bear she’d designed.”
“Yes.”
“How do you know they were original?”
First the eyeglasses, I thought, now the bear itself.
“Well, they were signed by her,” Nettleton said.
“Yes, but how do you know they weren’t drawings premised on some other person’s idea?”
“Objection, Your Honor!”
“I’ll allow it, Mr. Hope. He earlier described the drawings as original. Answer the question, please.”
“Well, I didn’t know where her idea came from,” Nettleton said. “She told me it was her idea, I had to assume…”
“The same way you told her…”
“Objection!”
“…that the eyeglasses were your idea, when in fact…”
“Objection, “Your Honor!”
“When in fact the design for them…”
“Objection!”
“…had already been published as far back as…”
“Your Honor, I object!”
“Sustained,” Santos said.
“Your witness.”
The windows, three of them, were on the far side of the building, facing east, away from the parking lot. There was a view of a strip mall across the way, mini-market in it, video shop, Laundromat, dry cleaners, and bar. Two blond bronzed gods looking like beach bums in tank top shirts and baggy shorts were standing outside the bar, maybe waiting for it to open. A woman in a bathing suit and sandals walked into the Laundromat carrying a bundle of wash. It was still sunny and glaring bright outside.
Warren looked at his watch.
All right, let’s get to work here, he thought.
He took the cushions off the sofa, opened the bed—so simple a child of five could do it—hoping to find it neatly made, finding instead a tangled mare’s nest of sheets, pillow and a single blanket. The bed gave off a faint whiff of sweat and something else, he didn’t know what. He pulled back the sheets, looking for whatever might tell him he was right or wrong about what she was doing here in this apartment, but there was nothing he could see, so he closed the bed, and put the cushions back in place and turned to look around the room again.
Bright sunlight streamed through the windows behind him.
The air conditioner was off, the place was pitilessly hot. A pink baby-doll nightgown trimmed with lace at the hem was lying on the floor near the sofa, well, now he knew what she slept in. He picked it up, held it in his big brown hands, studying it. Put it down on the sofa, thought No, she’ll remember, and tossed it on the floor again, where he’d found it. S
earched the floor, saw nothing that told him anything. Checked the cabinet on the right-hand wall as you came in the room, opening doors and drawers, found nothing. Checked a standing combination bookcase/bar/entertainment center—actually a series of black wooden shelves resting on a black iron frame—CD and tape player on one of the shelves, but no TV set, another bad sign, he kept hoping against hope he was wrong. Another round table, wooden, larger than the one in the kitchen, with two chairs that matched those in the kitchen, was tucked into the corner just to the left of the entrance door as you came in. A phone was on the table, its cord leading to a jack near the floor. An open address book was resting beside the phone. He pulled out a chair and sat.
What it all got down to in the closing arguments was a simple case of She Said/He Said.
On Lainie’s behalf, I argued that Gladly the Cross-Eyed Bear was her wholly original work, that she had designed the stuffed animal early in April, had consulted an optometrist shortly thereafter, and had copyrighted bear and accessories in May, at which time she had also trademarked the name of the bear. I argued that the crossed eyes and the correcting eyeglasses were part and parcel of the bear’s distinctive trade dress. I further argued that the notion for the bear had come to her through memories of her own affliction—and here I asked her to look directly into Judge Santos’s face so that he could see for himself the similarity of the bear’s eyes to hers—and a hymn she had learned when she was a little girl in Winfield, Alabama.
Brackett argued that Brett Toland—himself originally a Southerner from Tennessee—had been inspired by the same hymn and had suggested the idea for a cross-eyed bear to Lainie while she was still working for Toyland under an employment agreement that specified any fruits of her labor would become the sole and exclusive property of the company. Brackett contended that it was Toland himself who’d requested Lainie to sketch a cross-eyed bear for him, and she had delivered those sketches in September of last year, three months before she’d given the company notice. The bear he planned to test-market this Christmas was called Gladys the Cross-Eyed Bear because he hoped to capture a market not exclusively limited to Christians familiar with the hymn. The glasses on his bear made use of neither corrective lenses nor mirrors but were instead clear plastic lenses behind which uncrossed eyes had been painted. It was Brackett’s argument that Lainie had also designed these glasses for Toland, and that the more sophisticated design she’d later purchased from Nettleton was merely an improvement on Toland’s original idea.
He Stole It.
She Stole It.
That’s what it got down to.
Warren knew the names of most people in Newtown she would have to contact, but he didn’t see any of them in her address book. Maybe she was going someplace other than Newtown, maybe she figured she’d be too conspicuous down there, pretty white blond woman in the black section of Calusa. Maybe she knew someplace else to go for what she needed, if she needed it, but maybe he was wrong. He kept leafing through the book leisurely, didn’t want to miss any familiar name, but there was nobody there he could identify, so far she looked clean as a newborn babe. He closed the book. Looked around the room again.
She wasn’t expecting anybody to come in here and toss the place, so she’d have had no need to go stashing anything in ridiculous places like the inside of a lampshade or the underside of a toilet tank lid. Just her and her secret, if there was a secret, maybe he was wrong, maybe there was nothing here at all. He’d be the first to admit it, run out and buy them both a big dinner at the best restaurant in town. But he knew the signs.
Only place he hadn’t yet checked was the bathroom.
Santos was telling us that it was not the Court’s obligation to determine whether Dr. Nettleton had stolen his eyeglass design from the Optics and Lenses article. Which, by the way, he didn’t think had happened.
“In fact, I find that argument entirely specious,” he said, “and I’m rejecting it summarily. Rather, the duty of this Court is to determine whether the bear Toyland calls ‘Gladys’ is a copy of the bear Commins calls ‘Gladly’ and therefore an infringement of copyright. The Court must further determine whether the similar though not identical names of the two bears might cause confusion in the marketplace and therefore be an infringement of trademark. And last, as to the third count, the Court must consider whether the design features of the Commins bear are inherently distinctive or at least have secondary meaning among purchasers, in which case the bear may be granted trade dress protection. This is not a simple case,” he said, and sighed heavily. “I know, I know. This is already the middle of September, and Christmas is right around the corner. Ms. Commins has had feelers from two major toy companies, and Mr. and Mrs. Toland are eager to put their bear into production at once.
“But…”
And here he sighed again, and clasped his hands together as if building with his fingers a Here’s-the-Church-and-Here’s-the-Steeple edifice, resting his chin on the entrance door formed by his thumbs, peering out over them.
“I must give this serious thought,” he said. “Before I enjoin Mr. and Mrs. Toland from producing and selling their bear, I need to be certain in my own mind that what Ms. Commins charges in her complaint is absolutely unassailable. I ask you all to be patient. I’ll try to give you my decision by the end of next week. That would be…” He looked down at his open calendar. “The twenty-second. Failing that, and in accordance with federal law, I could extend another ten days. I can certainly promise a decision before then. In fact, let’s say no later than the twenty-ninth. Until then, the TRO will remain in effect. Are there any questions? Then let’s adjourn.”
Had to be a bathroom behind that closed door across the room. Warren left her address book open to the page it had been turned to, got up, pushed the chair back under the table again, and went to the closed door.
No surprises, no dead body in the bathtub or hanging from the shower head or sitting on the toilet bowl with a knife in his heart. Nothing like that. Thong panties drying over the shower rod, two of them white, the third one yellow, now he knew what she wore under her skirt. No bras in evidence. Twisted tube of toothpaste on the sink, at least she was still brushing her teeth and rinsing out her smalls. Force of habit, he took the box of Kleenex off the toilet tank lid, placed it on the sink to his right, lifted the lid, peeked into the tank, turned the lid over to see if anything was taped to it, put it back in place again, and put the box of Kleenex back onto it.
He opened the medicine cabinet.
Usual array of headache remedies ranging from aspirin to Advil to Tylenol to Bufferin. Bottles and tubes of sunscreen and lotion. Some prescription drugs in little brown plastic bottles with white lids. Several packages of tampons and maxi-pads. A few boxes of cold tablets and allergy tablets. A toothbrush in an unopened cardboard and cellophane container. A bottle of Pepto-Bismol. An empty Dial•Pak dispenser. A toenail clipper. An open packet of dental floss. Several jars of moisturizers and mud. Nothing he was looking for. He closed the mirrored door. Opened the wooden door on the cabinet under the sink. Toilet-bowl brush. Wrapped bars of Palmolive soap; he visualized her showering. Wrapped rolls of toilet paper. An unopened box of Kleenex. A can of Lysol. He closed the door.
Pale blue shag rug in front of the toilet bowl. Matching blue plastic trash basket wedged into the narrow space between the sink cabinet and the bowl. He looked into the basket. Crumpled, lipstick-stained wads of Kleenex. Cellophane wrapper from a tampon. Wrapper from a stick of Wrigley spearmint chewing gum. Several soggy Q-Tips. He picked up the basket, rested it on the sink. Dug under the debris.
Bingo.
“He’s going to decide in their favor, I know it,” Lainie said.
We were eating a late lunch in a delicatessen near the courthouse. The place called itself the New Yorker, though the knishes and the hot dogs tasted as if they’d been made in Korea. Even the mustard was all wrong, a bright yellow stuff that lacked the bite of the grainy brownish blend my partner Frank insisted was es
sential to a true kosher frank. And besides, you had to pay an additional fifty cents for sauerkraut, which Frank said was outrageous. I wished Frank were here with us right this minute. Frank had a way of explaining law that made him sound like a justice of the Supreme Court. Frank was a comfort to distraught clients. On the other hand…
“I just think he needs more time,” I said.
“Why?”
“Because this isn’t a decision he can make lightly. He gave us fair warning right up front. Remember what he said?”
“What did he say?”
“He said, ‘The Court does not intend to be rushed into any decision.’ Those were his exact words. He’s aware of how much is hanging in the balance. For both sides.”
“Nothing’s hanging in the balance for Toyland,” Lainie said. “This is just another product for them. They’ll put it out in time for Christmas, if it catches on, great, if it doesn’t there’ll be another toy next Christmas and another one after that. But this is my future we’re talking about here. If Gladly makes it…”
“I understand, Lainie. But there’s no reason to…”
“No, I don’t think you…”
“…believe Santos will decide for the Tolands. Really. His caution isn’t unusual. There are factors he still has to consider, you know…”
“What factors?”
“Well, aside from deciding whether there was copying…”
“He doesn’t think there was. He said…”
“I know what he said.”
“He said he had to be certain in his own mind that Gladly really was copied.”
“Yes, but I think he knows…”
“How can you know what he…?”
“He dismissed that nonsense about Nettleton copying the eyeglasses, didn’t he?”
“That doesn’t mean he thinks their fucking bear was copied from mine.”
“Well, maybe not yet.”
“Maybe not ever.”
“The point is, Lainie, there’s more to this than whether or not there was just copying.”
“Yeah.”
Picking at her fries disconsolately. As far as she was concerned, Santos had already decided, and the case was lost. One eye on me, the other wandering elsewhere. Dipping a fry in the ketchup on her plate. Fine sheen of perspiration on her tanned face, the New Yorker’s air-conditioning unit had probably come from Pyongyang, too. Lifting the fry to her lips.
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