author: HATFIELD, District Judge.

text:
    BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Plaintiff, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendant.
    No. CV-84-213-GF.
    United States District Court, D. Montana, Great Falls Division.
    July 31, 1985.

      Joseph Prekop, Harold A. Ross, Cleveland, Ohio, Benjamin W. Hilley, Hilley & Loring, Great Falls, Mont, for plaintiff.
    Thomas W. Spence, Billings, Mont., Alexander Blewett III, Jardine, Stephenson, Blewett & Weaver, Great Falls, Mont., Edward W. Mullen, Deacy & Deacy, Kansas City, Mo., Richard J. Schreiber, Chicago, Ill., for defendant.
   MEMORANDUM

HATFIELD, District Judge.

The present action for injunctive and declaratory relief has its genesis in a dispute between the plaintiff, Brotherhood of Locomotive Engineers (“Brotherhood”) and the Burlington Northern Railroad Company (“BN”) concerning the validity of the BN’s unilateral implementation of a program designed to deter the on-duty use of intoxicating substances by train crew personnel. The Brotherhood and the BN are parties to a collective bargaining agreement, subject to the provisions of the Railway Labor Act (“RLA”), 45 U.S.C. §§ 151 et seq. Jurisdiction of this action vests with this court under authority of 28 U.S.C. § 1331 and § 1337.

On October 5, 1984, the court entered a preliminary injunction maintaining the status quo of the relationship between the parties pending resolution of this matter upon the merits. Trial upon the facts without a jury commenced on November 13, 1984. After the Brotherhood completed the presentation of the case in chief, the parties informed the court that settlement of the controversy appeared imminent. At the request of the parties, trial was recessed pending negotiations between the parties. When the anticipated settlement never materialized, the court reconvened trial on February 13, 1985.

Having considered the evidence presented, by the parties, and applying the pertinent law to the facts as found to exist, the court enters the present memorandum as its findings of fact and conclusions of law, pursuant to Rule 52, Federal Rules of Civil Procedure.

FACTUAL BACKGROUND

The plaintiff Brotherhood is a labor organization representing the craft of locomotive engineers employed by the BN. The defendant BN is a corporation engaged in transporting goods and commodities by rail. Both parties are subject to the provisions of the RLA.

At all times material to this action, and for a period of at least forty years, the Brotherhood and BN have been parties to various collective bargaining agreements governing the rates of pay, rules and working conditions as negotiated between the parties. During that same period of time, the BN has had a unilaterally implemented safety rule in effect, denominated Rule G, which provides:

The use of alcoholic beverages, intoxicants, narcotics, marijuana, or other controlled substances by employees subject to duty, or their possession or use while on duty or on company property is prohibited. Employees must not report for duty under the influence of any marijuana, or other controlled substances, or medication, including those prescribed by a doctor, that may in anyway adversely affect their alertness, coordination, reaction, response or safety.

Any on-duty employee found to be in violation of the proscriptions contained in Rule G would be subject to suspension or discharge in accordance with established procedure. Prior to May 1984, the BN relied primarily upon the sensory observations of security personnel to detect violations of Rule G. If a supervisor had reason to believe that a particular on-duty employee was under the influence of an intoxicating substance, the supervisor would further investigate and, if warranted, remove the employee from service, pending a formal investigation via established procedures.

In May 1984, shortly after several tragic accidents occurred on its rail system, the BN intensified its efforts to enforce Rule G. At that time, the BN unilaterally implemented a surveillance and search program designed to curtail or prevent the “on-duty” use of alcohol and controlled substances by its employees. That surveillance-search program was based primarily, if not exclusively, on the use of dogs trained to detect the presence of drugs or controlled substances. The BN utilized the dogs to inspect the personal effects, including automobiles, of on-duty employees to detect the presence of substances prohibited by the terms of Rule G. The employees subjected to such inspections were chosen on a random basis. Although the BN may have chosen a particular locale to conduct an inspection on the basis of a suspected high incidence of violations, the existence of a reasonable belief that a particular employee was in violation of Rule G was not a prerequisite to inspection.

Upon receiving a positive indication from a dog that a controlled substance was in a particular employee’s possession, BN’s security personnel would ask that employee to consent to a physical search of his personal effects. If an employee refused to submit to inspection in the first instance, or to sign a consent form permitting a physical search after a positive indication, the employee was removed from service, charged with a violation of Rule G and threatened with discipline and loss of employment.

DISCUSSION:

The Brotherhood contends that the collective bargaining agreement extant between the parties was violated by the BN’s unilateral implementation of its surveillance-search program, the cornerstone of which is the random utilization of dogs trained to detect the presence of drugs, or controlled substances, in the possession of “on-duty” employees, i.e., an employee who has reported for work.

The unilateral implementation of the surveillance-search program, the Brotherhood submits, constitutes a change in “working conditions” accomplished in violation of the notice, negotiation and mediation requirements imposed by § 2 in conjunction with § 6 of the Railway Labor Act (“RLA”), 45 U.S.C. §§ 152 and 156.

The BN counters by vehemently asserting that the method of enforcing the proscriptions contained in its long standing safety rule regarding the use of intoxicating substances by employees, i.e., Rule G, is not a matter subject to the collective bargaining process. Rather, the BN submits, the implementation of safety rules like Rule G and the method by which those rules are enforced is a matter within the prerogative of the employer. In the alternative, the BN takes the position that even if the method by which Rule G is enforced is viewed as a matter properly determined through collective bargaining, the propriety of its unilateral implementation of the surveillance-search program presents a dispute which must be resolved in accordance with the procedures established by Section 3, First (i), of the RLA, 45 U.S.C. 153. In that regard, the BN contends that the dispute revolves around the interpretation and application of the collective bargaining agreement extant between the parties.

The issue of whether a particular dispute arising under the RLA falls within the purview of § 2 or § 3 of that act is a classic one which has spawned extensive litigation in the federal courts. The litigation emanates from the fact that the distinction between the two classes of disputes, the former being referred to as “major,” the latter as “minor,” is important from both a substantive and procedural standpoint. The classification has far reaching consequences in respect to the timing and role of the judicial function, including the jurisdiction of the courts themselves. O’Donnell v. Wien Air Alaska, Inc., 551 F.2d 1141, 1145 (9th Cir.1977). Section 3 of the RLA commits resolution of minor disputes to the exclusive jurisdiction of the Railroad Adjustment Board, or to mediation procedures on which the parties have agreed, thereby depriving the parties of access to federal court for resolution of the dispute. 25 U.S.C. § 153 First (i); see, Brotherhood of Railroad Carmen v. Pacific Fruit Express Company, 651 F.2d 651 (9th Cir.1981).

Section 2 in conjunction with § 6, on the other hand, establishes a distinct mechanism for settlement of major disputes, designed to encourage resolution through mediation under the auspices of the National Mediation Board, and ultimately arbitration, if necessary. 45 U.S.C. §§ 152 Seventh and 156; see, Elgin, Joliet and Eastern Railway Co. v. Burley, 325 U.S. at 724-25, 65 S.Ct. at 1290-91. The mechanism for resolving major disputes is deliberately designed to be a long and drawn out, almost interminable, process during which the parties are obligated to maintain the status quo. Detroit & Toledo Shore Line Railroad Co. v. United Transportation Union, 396 U.S. 142, 148-49, 90 S.Ct. 294, 298-99, 24 L.Ed.2d 325 (1969). Because the status quo requirement of § 6 is central to the RLA’s design, the parties to a major dispute have immediate access to federal court for the purpose of obtaining injunctive relief, to prevent the adverse party from attempting to alter the status quo pending exhaustion of the dispute resolution mechanism contained in § 6. 396 U.S. at 150-51, 90 S.Ct. at 299; see also, O’Donnell v. Wien Air Alaska, Inc., 551 F.2d at 1148. An injunction may issue under such circumstances regardless of whether a showing of irreparable harm has been made by the moving party. 396 U.S. at 150-51, 90 S.Ct. at 299.

In the case at bar, the court is called upon to determine whether the dispute between the Brotherhood and the BN, concerning the latter’s unilateral implementation of its surveillance-search program, is properly characterized as a major or minor dispute. Resolution of that issue, in turn, determines the propriety of maintaining the status quo pending resolution of the dispute in accordance with the appropriate provisions of the RLA. Disposition of the issue requires the court to undertake a two step analysis. First, the court must address whether the method which may be employed to detect violations of Rule G, the safety rule at issue, is properly a matter of negotiation and hence a “working condition” within the meaning of §§ 2 Seventh and 3 First(i) of the RLA. An affirmative answer to that first inquiry will necessitate a determination whether resolution of the dispute merely entails an interpretation of the agreements extant between the parties i.e., a minor dispute, or whether the unilateral implementation of the surveillance-search program constitutes a change in the agreements between the parties affecting working conditions of the employees of the BN, i.e., a major dispute.

WORKING CONDITIONS

In order to effectuate the purposes of the RLA envisioned by Congress, courts must afford the term “working condition” broad interpretation. Detroit & Toledo Shore Line Railroad Co. v. United Transportation Union, 396 U.S. at 152-53, 90 S.Ct. at 300-01; see also, United Transportation Union v. St. Paul Union Depot Co., 434 F.2d 220, 223 (8th Cir.1970), cert. denied, 401 U.S. 975, 91 S.Ct. 1194, 28 L.Ed.2d 324 (1971). Consequently, the term has been construed to include those actual, objective working conditions out of which a particular dispute arises and which may not necessarily be covered in an existing collective bargaining agreement. Detroit & Toledo Shore Line Railroad Co. v. United Transportation Union, 396 U.S. at 153, 90 S.Ct. at 301. In that regard, the Supreme Court noted that it would be virtually impossible to include all working conditions in a collective bargaining agreement. 396 at 154-55. Rather, when a particular condition has existed over time because that condition is satisfactorily tolerable to both sides, it may well be omitted from the agreement, a fact especially true in the railroad industry. 396 at 155.

Elevation of a particular practice or course of conduct to an implied contractual status, warranting treatment as a working condition under the RLA, requires that the practice or course of conduct achieve the level of an established practice or custom. See, United Transportation Union v. St. Paul Union Depot Co., 434 F.2d at 223. That level is attained when the conduct of the parties exhibits that continuity, interest, and purpose indicative of a mutual understanding as to the terms of the agreement. See, General Committee of Adjustment v. Burlington Northern Inc., 620 F.2d 161, 163 (8th Cir.1980).

The parties in the present action agree that Rule G has been in effect for many years prior to 1980. It is equally undisputed that compliance with the terms of Rule G has been a condition of employment for that same period of time, with employees found to be in violation of its provisions being subjected to suspension or discharge. The text of Rule G, however, neither in its present nor past form, indicates the method by which the rule is to be enforced, or refers to any means which may be utilized to detect violations. Review of the collective bargaining agreement between the parties reveals that no reference is made to Rule G, let alone any statement either condoning or prohibiting any specific method of enforcement or detection with respect to the rule.

Emphasizing that no provision of the collective bargaining agreement between the parties restricts the BN with regard to the methods or procedures for enforcing Rule G, the BN asserts that the method of enforcement or detection is a matter within BN’s managerial prerogative. Given that fact, the argument goes, BN’s unilateral implementation of a particular method of enforcement or detection does not rise to the level of a labor dispute within the purview of the RLA. The position of BN is not only specious, but blatantly ignores the rationale espoused by the Supreme Court in Shore Line as applied to the facts established in this case.

The mere absence of any reference in the collective bargaining agreement to a particular method of enforcement or detection, standing alone, does not establish that the method which may be utilized to detect violations is a matter within the prerogative of management. Rather, the conspicuous absence may simply reflect the fact that a particular method, satisfactorily tolerable to both sides, has existed over time. Detroit & Toledo Shoreline v. United Transportation Union, 396 U.S. at 155, 90 5.Ct. at 302. Based upon the evidence produced at trial, the court finds that the parties have indeed acquiesced over time in a particular method by which the BN could detect violations of Rule G by on-duty employees.

The evidence of record unequivocally establishes that prior to the implementation of the surveillance-search program in 1984, the enforcement of Rule G was predicated upon sensory surveillance by certain supervisory personnel of the BN, i.e., “trainmasters” or “road foremen”. If, on the basis of his observations, a supervisor concluded that an on-duty employee was under the influence of a prohibited substance, the supervisor would conduct a further investigation and, if necessary, ultimately initiate the appropriate disciplinary procedures. The practice which evolved over time was one premised upon a determination, through sensory observation, that cause existed to believe a particular employee was under the influence of a substance prohibited by Rule G. The practice has clearly existed over a substantial period of time, becoming an acceptable method of detection to both the BN and the Brotherhood. The practice exhibits that continuity, interest and purpose indicative of the existence of a mutual understanding as to the terms of the practice which are tolerable by both parties. Affording the term “working condition” the liberal construction to which it is entitled, the court finds the practice of detecting Rule G violations by means of sensory observation of supervisory personnel has achieved the level of an established practice, deserving of an implied contractual status. Consequently, the BN is not at liberty to change the method by which it attempts to detect Rule G violations, except in conformity with the provisions of the RLA.

MAJOR VS. MINOR DISPUTE

Having concluded that the dispute between the parties involves a “working condition,” within the meaning of the RLA, the court now turns to the correlative issue of whether the dispute is a “major” or “minor” dispute. Application of the major-minor distinction espoused in Elgin to a particular factual situation has caused the courts considera ble consternation. The difficulty encountered in characterizing a particular dispute is obviously aggravated when, as in the case at bar, the controversy centers on a working condition established by an implied agreement. Consequently, those courts of appeal which have been presented with novel factual situations have formulated various “tests” in an effort to distinguish the two types of disputes in accordance with the Elgin standard. Local 553, Transport Workers Union v. Eastern Air Lines, Inc., 695 F.2d 668, 673-74 (2nd Cir.1982); Railway Express Agency v. Brotherhood of Railway Airline and Steamship Clerks, 459 F.2d 226, 231 (5th Cir.1971); cert. denied, 409 U.S. 892, 93 S.Ct. 115, 34 L.Ed.2d 149 (1971); Airline Stewards Assn. v. Caribbean Atlantic Airlines, Inc., 412 F.2d 289, 291 (1st Cir.1969). Although the various “tests” are phrased differently, they appear to be substantively identical. See, United Transportation Union v. Penn. Central Trans. Co., 505 F.2d 542, 544 and n. 5 (3rd Cir.1974).

The leading case in this circuit with respect to the major-minor distinction is Switchmen’s Union v. Southern Pacific Co., 398 F.2d 443 (9th Cir.1968), which framed the determinative inquiry as a relatively narrow one: Is the position of at least one of the parties arguably predicated on the terms of an agreement? See, O’Donnell v. Wien Air Alaska, Inc., 551 F.2d at 1145. The reasoning of the court in Switchmen’s, which led to this formulation, bears repetition:

It is true, as the union points out, that a controversy, although couched in terms of a disagreement as to interpretation of a contract, may under some circumstances be regarded as a major dispute. This result may be reached if it can be said that the change being imposed by one side on the other is in nowise contemplated or arguably covered by the agreement. The provisions of the Railway Labor Act may not be avoided merely through the device of unilateral action which the actor purposefully intends shall not become a part of the agreement. The major-minor dispute dichotomy does not relate to artfully contrived formalistic demands or responses, but to matters of substance, (citations omitted)
But where the position of one or both of the parties is expressly and arguably predicated on the terms of the agreement, as illuminated by long-standing practices, the question of whether the position is well taken involves a minor dispute.

398 F.2d at 447.

The Switchmen’s rule has subsequently been restated in varying factual contexts by the Court of Appeals for this circuit. Nonetheless, the essence of the rule remains the same, i.e., is the disputed action by one of the parties “arguably” justified by the agreement existing between the parties.

The method by which an employer like the BN detects violations of its safety rules, especially a violation which may result in job termination, strikes at the heart of the employer-employee relationship. Consequently, in determining whether an implied agreement exists between the parties with respect to the method of detecting violations, a court must carefully scrutinize the past practices of the parties, since they provide the most reliable means of elucidating the terms of the understanding extant between the parties. Illumination by “long standing practices” is critical to resolving whether the position of one or both of the parties to a dispute is arguably predicated on the terms of the agreement. See, Switchmen’s Union v. Southern Pacific Company, 398 F.2d at 447. Resort to those past practices of pertinence to the present controversy provides the illumination necessary to resolving the major-minor dichotomy presented.

As noted earlier, the Brotherhood and the BN impliedly agreed that the acceptable method of detecting Rule G violations was one based upon the sensory observations of BN’s supervisory personnel. Implicit in that agreement, and a matter conclusively established in the record, is the fact that at least a modicum of evidence must exist that a particular employee is operating under the influence of an intoxicating substance before any further investigation can be conducted by the supervisor. The requisite modicum of evidence must be based on the sensory observations of the supervisor. There is no indication that the practice of randomly searching the person or personal effects of employees was ever agreed to, or acquiesced in, by the Brotherhood. In that same vein, there is no evidence suggesting that the personal effects of an employee were searched under any circumstances, let alone on a randomly designed basis, prior to March 4, 1984.

Based upon the terms of the agreement between the parties regarding the method of detecting Rule G violations, as illuminated by long standing practices, the court finds the BN’s practice of randomly searching the person or personal effect of the members of the Brotherhood is not “arguably” justified by the terms of that agreement. The contention of the BN to the contrary is obviously insubstantial. Consequently, the dispute between the parties presents a major dispute subject to the status quo provisions of § 6 of the RLA, 45 U.S.C. § 156.

The court feels compelled to specifically address one argument advanced by the BN in support of its position. Contrary to the BN’s assertion, the present controversy does not fall within the “omitted case” doctrine espoused by the Supreme Court in Elgin, Joliet & Eastern Ry. Co. v. Burley, 325 U.S. at 723, 65 S.Ct. at 1289, as applied by the Court of Appeals for this circuit in Railway Labor Exec. Assoc. v. Atchison, Topeka & Santa Fe Railway Co., 430 F.2d at 996-97. The “omitted” case doctrine applies to those situations where a claim is “founded upon some incident of the employment relation, or asserted one, independent of those covered by the collective agreement, e.g., claims on account of personal injuries.” Elgin, Joliet & Eastern Ry. Co. v. Burley, 325 U.S. at 723, 65 S.Ct. at 1289. The “omitted” case only arises where no attempt is being made to change the terms of an existing collective agreement. Id. Rather, the claim arises as one normally incident to the employment relation and requires application of the terms of an agreement to the factual situation presented. Id.

In resolving the jurisdictional issue presented, the Court in Railway Labor Exec. Assn. v. Atchinson, Topeka & Santa Fe Railway Co., 430 F.2d at 996, held that the National Railroad Adjustment Board had primary jurisdiction to resolve the issues presented in an omitted case. The fact was undisputed in that case, however, that the controversy presented was “minor” in nature. Id. That case is clearly distinguishable from the case at bar.

A relatively recent statement by the Supreme Court, emphasizing the purposes of Congress’ commitment of minor disputes to the Board of Adjustment, elucidates what this court believes is meant by the term “incident of the employment relation”:

Congress endeavored to promote stability in labor-management relations in this important national industry by providing effective and efficient remedies for the resolution of railroad-employee disputes arising out of the interpretation of collective bargaining agreements. The Adjustment Board was created as a tribunal consisting of workers and management to secure the prompt, orderly and final settlement of grievances that arise daily between employees and carriers regarding rates of pay, rules and working conditions. Congress considered it essential to keep these so-called “minor” disputes within the Adjustment Board and out of the courts, (citations omitted).

Union Pacific R. Co. v. Sheehan, 439 U.S. 89, 94, 99 S.Ct. 399, 402, 58 L.Ed.2d 354 (1978).

The rationale of Sheehan is, of course, consistent with the rationale upon which the major-minor dichotomy was premised in the first instance by the Court in Elgin. That same rationale compelled the holding in Shore Line, extending § 6 protection to the terms of an implied agreement. The rationale is a pragmatic one, bottomed on recognition of the fact that the RLA is designed to provide a mechanism for the resolution of disputes which will cause the least amount of disruption to railroad traffic. As recognized by the Court in Shore Line, the primary objective of the RLA is the prevention of strikes. 396 U.S. at 154, 90 S.Ct. at 301. Consequently, interpretation and application of the provisions of RLA by the courts, as evidenced by El-gin, Shore Line and Sheehan, must be tempered with the fundamental purpose of the act in mind. The Court in Elgin summarized this proposition in espousing the major-minor dichotomy when it stated:

... The [major disputes] present the large issues about which strikes ordinarily arise with the consequent interruptions of traffic the Act sought to avoid. Because they more often involve those consequences and because they seek to create rather than to enforce contractual rights, they have been left for settlement entirely to the processes of noncompulso-ry adjustment.
The so-called minor disputes, on the other hand, involving grievances, affect the smaller differences which inevitably appear in the carrying out of major agreements and policies or arise incidentally in the course of an employment. They represent specific maladjustments of a detailed or individual quality. They seldom produce strikes, though in exaggerated instances they may do so. Because of their comparatively minor character and the general improbability of their causing interruption of peaceful relations and of traffic, the 1934 Act sets them apart from the major disputes and provides for very different treatment. 325 U.S. at 723-24, 65 S.Ct. at 1289, 1290.

Affording the terms of the RLA that liberal construction necessary to effectuate the objectives of the act Congress envisioned, this court concludes that the present dispute is clearly not an “omitted” case, but presents a significant “major” dispute. The infringement upon the rights secured the members of the Brotherhood by their collective agreement with the BN which the surveillance-search program at issue would entail constitutes, in the colo-quial, the “stuff” of which strikes are made.

The complaint filed by the Brotherhood presents a myriad of other issues related to the validity of the procedures utilized by the BN after a positive indication of the presence of drugs was made by one of the trained dogs. In view of the court’s conclusion that the random use of the dogs presents a “major” dispute under the RLA, the court need not reach those issues.

An appropriate order shall issue.

      . The great majority of the Brotherhood’s members now employed by the BN are governed by one of four collective bargaining agreements entered into by predecessor companies of the present BN. The provisions of those agreements pertinent to this action are identical. Therefore, for purposes of clarity the four agreements shall be referred to collectively as one throughout the present memorandum opinion.

      . 45 U.S.C. § 152 Seventh provides:
      No carrier, its officers or agents shall change the rates of pay, rules, or working conditions of its employees, as a class as embodied in agreements except in the manner prescribed in such agreements or in section 6 of this Act.
      45 U.S.C. § 156, in turn, provides:
      Carriers and representatives of the employees shall give at least thirty days’ written notice of an intended change in agreements affecting rates of pay, rules, or working conditions, and the time and place for the beginning of conference between the representatives of the parties interested in such intended changes shall be agreed upon within ten days after the receipt of said notice, and said time shall be within the thirty days provided in the notice. In every case where such notice of intended change has been given, or conferences are being held with reference thereto, or the services of the Mediation Board have been requested by either party, or said Board has proffered its services, rates of pay, rules, or working conditions shall not be altered by the carrier until the controversy has been finally acted upon as required by section 5 of this Act, by the Mediation Board, unless a period of ten days has elapsed after termination of conferences without request for or proffer of the services of the Mediation Board.

      .45 U.S.C. § 153, First (i) provides:
      The disputes between an employee or group of employees and a carrier or carriers growing out of grievances or out of the interpretation or application of agreements concerning rates of pay, rules, or working conditions, ... shall be handled in the usual manner up to and including the chief operating officer of the carrier designated to handle such disputes; but, failing to reach an adjustment in this manner, the disputes may be referred by petition of the parties or by either party to the appropriate division of the Adjustment Board with a full statement of the facts and all supporting data bearing upon the disputes.

      . The terms “major" dispute and “minor” dispute were first coined by the United States Supreme Court in Elgin, Joliet & Eastern Railway Company v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1944), to describe the disputes falling within § 2 and § 3 of the RLA respectively. The Court in Elgin described major disputes as those “over the formation of collective agreements or efforts to secure them. They arise where there is no agreement or where it is sought to change the terms of one....” 325 U.S. at 723, 65 S.Ct. at 1289; see also, Switchmen’s Union of North America v. Southern Pacific Company, 398 F.2d 443, 445 (9th Cir.1968). The Court in Elgin contrasted minor disputes as those which "relate either to the meaning or proper application of a particular provision with reference to a specific situation or to an omitted case.” 325 U.S. at 723, 65 S.Ct. at 1289, see also, Switchmen’s Union of North America v. Southern Pacific Co., 398 F.2d at 445.

      . The collective bargaining agreement contains provisions establishing the procedures to be followed in a disciplinary action emanating from the violation of any operating or safety rule. That provision does not refer to any specific rule nor establish any acceptable or proscribed method of detecting violations of any rule.

      . The BN presented evidence that it had utilized trained dogs to detect prohibited substances on several occasions beginning in 1977. The BN clearly used the dogs, however, on a limited and sporadic basis. Because of the isolated nature of these previous incidents, the Brotherhood apparently never mounted a major campaign in opposition. The de minimis use of the dogs in violation of the implied agreement between the parties, however, even if deemed "successful," does not constitute acquiescence by the Brotherhood culminating in a valid change in that agreement. To conclude otherwise would be condoning a principle which would undoubtedly frustrate the purpose of the RLA.

      . In Railway Labor Executives Ass’n v. Atchison Topeka & Santa Fe Ry. Co., 430 F.2d 994, 997 (9th Cir.1970); cert. denied, 400 U.S. 1021, 91 S.Ct. 582, 27 L.Ed.2d 632 (1971), the Court essentially restated the Switchmen’s rule when it stated that if:
      ... the dispute grows out of the employment relationship and, in the final analysis, involves an attempt to impose a right which is incident to that relationship, the statutory forum is the Adjustment Board, absent a clear expression of legislative policy to the contrary.
      The Court again rephrased the rule Southern Pacific Trans. Co. v. United Trans. Union, 491 F.2d 830 (9th Cir.1974), cert. denied, 416 U.S. 985, 94 S.Ct. 2389, 40 L.Ed.2d 762 (1974), when it stated that a dispute is minor when the contract provision is “reasonabl[y] susceptible” to a party’s interpretation.

      . The court need not decide whether the quantum of evidence necessary to justify further investigation would be akin to the "reasonable suspicion” or “probable cause” standards which have evolved in our criminal jurisprudence. The term of the agreement between the parties is the only standard of concern.


source: Caselaw Access Project

license: Public Domain

text:
    BROTHERHOOD OF LOCOMOTIVE ENGINEERS, Plaintiff, v. BURLINGTON NORTHERN RAILROAD COMPANY, Defendants.
    No. CV-85-055-GF.
    United States District Court, D. Montana, Great Falls Division.
    July 31, 1985.

      Benjamin Hilley, Hilley & Loring, Great Falls, Mont., Joseph E. Prekop, Harold A. Ross, Ross & Kraushaar Co., Cleveland, Ohio, for plaintiff.
    Alexander Blewett, III, Jardine, Stephenson, Blewett & Weaver, Great Falls, Mont., for defendants.
   MEMORANDUM AND ORDER

HATFIELD, District Judge.

The plaintiff, Brotherhood of Locomotive Engineers (“Brotherhood”), instituted the present action for declaratory and injunc-tive relief, to enjoin the defendant, Burlington Northern Railroad Company (“BN”), from subjecting members of the Brotherhood to urine-testing, designed to curtail the “on-duty” use of alcohol and other intoxicating substances by employees, as forbidden by a safety rule of the BN. The action follows “on the heels” of another action decided today by this court, involving the BN’s utilization of dogs trained to detect the presence of drugs or controlled substances in the personal effects of “on-duty” employees. See, Brotherhood of Locomotive Engineers v. Burlington Northern Railroad Company, 620 F.Supp. 163 (D.Mont.1985) (“BLE I”). Both actions involve the issue of whether the BN’s unilateral implementation of the procedures at issue to detect violations of the BN’s safety rules prohibiting the “on-duty” possession or use of intoxicants by its employees violates the pertinent provision of the Railway Labor Act (“RLA”), 45 U.S.C. §§ 151 et seq. The present action is before the court on motion of the BN requesting the court to enter summary judgment in its favor with respect to the claims advanced by the Brotherhood.

The issue which the court must ultimately resolve is whether the BN’s unilateral implementation of its mandatory urine-testing policy constitutes a change in working conditions, accomplished in violation of the notice, negotiation and mediation requirements imposed by § 2 in conjunction with § 6 of the RLA, 45 U.S.C. §§ 152 and 156. Restated, the court must decide whether the controversy regarding BN’s implementation presents a “major” or “minor” dispute within the meaning of the RLA. See, Elgin, Joliet & Eastern Railway Company v. Burley, 325 U.S. 711, 65 S.Ct. 1282, 89 L.Ed. 1886 (1944).

In a memorandum entered in BLE I on this day, the court set forth its interpretation of the state of the law with respect to (1) the meaning of the term “working condition” as used in the § 2, Seventh and § 3, First (i) of the RLA, 45 U.S.C. §§ 152, Seventh and 153, First (i); and (2) the major-minor dichotomy presented in the RLA. Applying the rationale espoused in BLE I to the facts established in this matter, the court finds it appropriate to enter summary judgment at this juncture. In that regard, the court finds it appropriate to take judicial notice of the record in BLE I, especially the facts as found to exist by the court in that matter, in resolving the present motion for summary judgment. See, Union Mechling Corp. v. United States, 566 F.2d 722 (1977).

The evidence presented in BLE I established the terms of the agreement «extant between the Brotherhood and the BN regarding the means of detecting Rule G violations. The critical term of that agreement, found by the court in BLE I to have reached an implied contractual status, is the term requiring the existence of a modicum of evidence that a particular employee was operating under the influence of a prohibited substance, before a supervisor could conduct further investigation. For the identical reasons set forth in BLE I, the' existence of that term precludes the BN from utilizing urinalyses on a random basis to detect Rule G violations. The BN’s random use of urinalyses to detect violations would present a “major” dispute subject to the status quo provisions of 45 U.S.C. § 156. The subjection of an employee to a urinalyses on a random basis is not “arguably” justified by the terms of the implied agreement extant between the parties.

The complaint filed by the Brotherhood does not allege, however, that the use of urinalyses was done on a completely random basis. Rather, the complaint alleges that the BN subjects an employee to urinalysis when that employee is believed to have been involved in an operating rule violation. The question of whether the urinalyses practice is “arguably justified” by the implied agreement, regarding Rule G, found to exist between the Brotherhood and the BN in BLE I is not as clear cut as the question was with respect to the random use of drug detection dogs. In fact, based upon the pleadings and evidence of record in this matter, the court concludes the urinalyses practice challenged by the Brotherhood is “arguably justified” under the terms of the agreement extant between the Brotherhood and the BN.

Consequently, the court finds the present controversy to be a “minor” dispute within the meaning of the RLA. The minor nature of the dispute deprives this court of the jurisdiction necessary to grant the in-junctive relief sought by the Brotherhood.

For the reasons set forth herein,

IT IS ORDERED that the defendant’s motion for summary judgment be, and the same hereby is, GRANTED.

      . Although the BN's motion requested dismissal of the complaint for failure to state a claim, pursuant to Rule 12(b), Fed.R.Civ.P., the court treats the motion as one requesting summary judgment.


author: MacLAUGHLIN, District Judge.

text:
    ANIMAL FAIR, INC. d/b/a Carousel by Guy, Plaintiff, v. AMFESCO INDUSTRIES, INC., Defendant.
    No. Civ. 4-85-490.
    United States District Court, D. Minnesota, Fourth Division.
    Aug. 2, 1985.

      Earl D. Reiland, Paul A. Welter, Janet Westrom and R. Lawrence Buckley, Merchant, Gould, Smith, Edell, Welter & Schmidt, Minneapolis, Minn., for plaintiff.
    Eugene L. Johnson, Stuart Hemphill, Dorsey & Whitney, Minneapolis, Minn., Gerard F. Dunne, Eliot Gerber, Bruce N. Proctor, Wyatt, Gerber, Shoup, Scobey & Badie, New York City, and Joseph Nürn-berg, Kane, Kessler, Proujansky, Preiss & Nürnberg, New York City, for defendant.
   MEMORANDUM

MacLAUGHLIN, District Judge.

This matter is before the Court on plaintiff’s motion for a preliminary injunction. Plaintiff seeks an order enjoining the defendant from manufacturing, distributing, promoting or selling one of defendant’s products, a novelty slipper resembling a bear’s foot, on the ground that the defendant is violating federal copyright and unfair competition laws. The Court heard testimony and arguments on plaintiff’s motion between June 26, 1985 and July 1, 1985. In view of the fact that the first shipments of defendant’s slippers were scheduled to take place soon after the hearing on plaintiff’s motion, the Court issued a brief Order on July 12, 1985 preliminary enjoining the defendant from any further manufacture, promotion, display, distribution or sale of its slipper or of any design confusingly similar to plaintiff’s copyrighted slipper. This Memorandum details the basis of the Court’s Order, and incorporates the findings of fact and conclusions of law required by Federal Rule of Civil Procedure 52.

FACTS

This is a civil action for infringement of United States Copyright Registration VA 170-162, a copyright on a slipper resembling a bear’s paw, for unfair competition under 15 U.S.C. § 1125(a) and the common law of unfair competition, and for violations of the Minnesota Deceptive Trade Practices Act, Minn.Stat. § 325D.43 et seq. Plaintiff Animal Fair, Inc., d/b/a Carousel By Guy (Animal Fair), is a Minnesota corporation with its principal place of business in Edina, Minnesota. Animal Fair is in the business of designing, manufacturing, and selling stuffed toys and related products, including novelty slippers. Defendant AM-FESCO Industries, Inc. (Amfesco) is a New York corporation with its principal place of business in Plainview, New York. Amfes-co is in the business of designing, manufacturing, and selling men’s, women’s, and children’s footwear, including slippers.

In March of 1984 John Hommes, Animal Fair’s director of custom sales and marketing, developed a highly original artistic design for a novelty slipper. The concept was a fanciful rendition of an animal’s foot, having some resemblance to a bear’s foot or paw. Hommes sought to achieve a “fun-loving” and “whimsical” look in his slipper design, and intended for the slipper to be distinctively different from other novelty slippers on the market. This design objective was consistent with Animal Fair’s marketing philosophy; Animal Fair is a relatively small firm which sells high quality products and which survives in the marketplace by offering distinctive and unique items. The bear’s paw style slipper developed by Hommes in March of 1984 was a highly unusual item. At the time that it was first developed and marketed, there was no other product similar to Animal Fair’s slipper being sold in the retail market.

During March and April of 1984, Hommes worked with a number of different prototype slippers until he settled on a final design for production. The production version of Hommes’ design, Plaintiff’s Exhibit 21, is a slipper stuffed with foam and fiber to give it an unusual, soft profile, with a tan sueded sole that is very broad at the toes and tapered toward the heel. The body of the slipper is covered with a brown fur-like material. The slipper sculpture has relatively larger length and width dimensions at the sole than other slippers. The bottom of the slipper carries a fanciful rendition of an animal print in the ground. This print design is dark brown, in contrast to the tan color of the rest of the sole. It consists of four oval shaped, toepadlike markings toward the front of the slipper, and one larger paw print-like marking positioned in the middle of the slipper. The most unusual feature of the Animal Fair slipper are four prominent tan stuffed projections, or “toes,” which extend forward and downward at the front of the slipper. The Animal Fair slipper is identified by the trademark “BEARFOOT™,”

An integral portion of the BEARFOOT novelty slipper is a story about a character named “J.J. Bearfoot,” which directly relates to the slipper’s characteristics. Plaintiff’s Exhibit 46. This story is printed on a large hangtag which is securely attached to each pair of slippers by a plastic filament which holds the pair together until the consumer has purchased them and brought them home. This hangtag carries a prominent copyright notice.

Retail buyers and consumers both responded enthusiastically to the BEAR-FOOT™. slipper. In late March or early April, 1984, Hommes showed his prototype design, Plaintiff’s Exhibit 1, to Laurel Kan-itz, a buyer for Dayton’s department stores in Minneapolis. Kanitz became extremely excited about the slipper because it was the first time that she had ever seen a slipper that was made to resemble the foot of an animal. Preliminary injunction hearing transcript, at 87. When she put the slipper on and walked around the Dayton’s office, the other buyers’ reaction was so positive that she immediately knew that the product would be one of the store’s most important items for the 1984 fall and Christmas selling season. Id. at 87-88. Kanitz subsequently ordered 1,800 pairs of the BEAR-FOOT™. slipper. This order, as well as the initial orders of buyers for other retailers, was somewhat conservative, because the consumer reaction to novelty items is quite unpredictable.

The BEARFOOT™. slipper was first shipped to retail outlets in August of 1984. There was a tremendous consumer reaction to the product. Department store buyers rapidly depleted their supplies of the BE-ARFOOT™. slipper, and sought to obtain more from Animal Fair for the 1984 Christmas season. Numerous customers wrote testimonial letters to Animal Fair expressing their enthusiasm for the unique and creative design of the slipper. Plaintiff’s Exhibit 62. In the span of one selling season, the BEARFOOT'" slipper became the most successful product ever developed by designer Hommes and the most successful product in terms of sales dollars in the 23-year history of Animal Fair.

Animal Fair designed the BEARFOOT'" slipper to have two copyright notices. Given the nature of the slipper design, it is somewhat difficult to place a prominent copyright notice which is clearly visible and also durably attached to the slipper. One of the notices on the BEARFOOT'" slipper, as the Court has noted, is on the hangtag connecting each pair of slippers. The second notice, in accordance with company policy, is placed on an interior sewn-in seam label. Animal Fair inadvertently omitted the copyright notice on the sewn-in labels of a certain percentage of the first slippers which it manufactured. Animal Fair first became aware of the absence of notice sometime in mid-November of 1984, when its attorney brought the problem to the attention of Animal Fair president Dean Fitch. Immediate action was taken to remedy the problem. Fitch promptly called the production facility, verified that there was an absence of notice from some labels, and instructed that such notice be added. Nicholas Brandt, the vice president in charge of manufacturing, testified that he took steps in mid-November to ensure that subsequently manufactured slippers contained a notice on the seam label. Later slippers contained the copyright notice on both the seam label and the hangtags. Animal Fair did not send replacement seam labels to its retail outlets to cover those slippers which had been shipped prior to the middle of November and which did not have the copyright notice on the seam label. It is undisputed, however, that all of those slippers contained a copyright notice on the hangtag. The Court finds that under all the facts and circumstances, Animal Fair acted reasonably in remedying the lack of notice.

After the BEARFOOT™ slipper arrived on the market in August of 1984, defendant Amfesco moved swiftly to copy Animal Fair’s copyrighted design. On or around August 20, 1984, an Amfesco sales representative gave Amfesco sample maker James Murphy an Animal Fair BEAR-FOOT™ slipper to copy. Murphy cut apart the slipper in order to determine how it was stuffed, and took measurements in order to duplicate the design. By the next day, Murphy had developed a sample slipper based on the BEARFOOT™ design, and a set of patterns for that slipper. Murphy and the other Amfesco design personnel working with him eventually made six sample slippers; some of these were sent to sales representatives to attempt to take orders for the slipper, and one pattern and slipper was sent to Amfesco’s manufacturing plant in Brewer, Maine. Murphy testified that he spoke with Amfesco president David Greenblatt about the design for the bear’s paw slipper.

At some point in mid-September of 1984, Greenblatt showed a bear’s paw style slipper to Edmund Farace, the president of Amfesco’s Apres Leisure Division; it was unclear from the evidence whether this slipper was Animal Fair’s BEARFOOT™ or one of Amfesco’s sample copies. Farace testified that he did not care for the slipper when he first saw it. Farace’s interest in the slipper, however, picked up considerably after he made a trip to several retail outlets later in September. On September 25, 1984, Farace saw an Animal Fair BE-ARFOOT™ slipper at Dayton’s department store in Minneapolis, and learned that it was extremely successful. Farace called Greenblatt from Minneapolis to tell him that he was excited about the product. On September 27, 1984 Farace looked at a pair of Animal Fair slippers at Marshall Fields in Chicago. He viewed the hangtag which contains the copyright notice. Upon Fa-race’s return to New York, he called a personal friend who was a department store buyer, and asked that an Animal Fair slipper sample be sent to him for his use. Farace met with Brenda Tillman, vice president of merchandising for Amfesco’s Apres Leisure Division, in early October, and discussed plans for producing and marketing a bear’s paw slipper and other animal foot style slippers. Tillman subsequently worked with Norman Roy, the production manager of Amfesco’s Brewer, Maine factory, on developing the Amfesco bear’s paw slipper.

In October of 1984, Amfesco began production of its bear’s paw style slippers for delivery to department store customers. Roy testified that he did not utilize the patterns sent to him by Amfesco designer Murphy in designing both the prototype and production slippers which he developed. Instead, he constructed his own patterns based upon an examination of the sample copy of Animal Fair’s slipper. Despite the fact that Roy constructed his own patterns, he still essentially duplicated Animal Fair’s BEARFOOT™ slipper. Amfes-co’s 1984 production version of its bear’s paw slipper (the “1984 slipper”), Plaintiff’s Exhibit 18, is virtually identical to Animal Fair’s BEARFOOT™ slipper. Amfesco copied the overall shape and design, the color and artwork on the sole of the slipper, and the aspect of four unrealistic stuffed cloth toes projecting from the front of the slipper, from Animal Fair’s slipper. The only difference between the two slippers that is discernible upon a casual inspection is the color of the fur; Amfesco’s slipper is a lighter brown than Animal Fair’s slipper, which has a mixture of brown and dark brown fibers. This difference, however, is negligible.

Amfesco decided at an early stage in the development of its bear’s paw slipper that at the earliest possible time it would use molded plastic toes or projections on its slipper rather than the cloth covered stuffed toes of Animal Fair. The reason for this decision was that the molded toes are much less expensive to produce. At about the same time that Amfesco was manufacturing and distributing its 1984 copy of Animal Fair’s slipper, it was designing a new model with molded toes, which would be included in a collection of animal slippers called IT’S A JUNGLE OUT THERE™. The slipper that Amfesco finally developed, which the parties have referred to as the “1985 slipper” (as distinguished from the “1984 slipper”), is the product which Animal Fair seeks to restrain Amfesco from manufacturing and selling.

Amfesco sold approximately 15,000 pairs of its 1984 version of the slipper during the 1984 Christmas season, and manufactured approximately another 65,000 pairs which are currently in inventory in Brewer, Maine. On December 18, 1984, Animal Fair’s counsel sent a letter to Amfesco advising it of the proprietary rights which it asserted in the BEARFOOT™ slipper and demanding that Amfesco stop the sale of its “knockoff” slippers. In a letter dated January 7, 1985, Amfesco’s counsel advised Animal Fair that without admitting any copyright infringement or other liability, Amfesco would cease and desist from any further sale or shipment of its 1984 slipper. Amfesco did stop the sale and shipment of its 1984 slipper, and plaintiffs motion for a preliminary injunction does not seek relief with respect to that product. Subsequent to Amfesco’s letter of January 7, however, 'it did continue to utilize the 1984 slipper in a manner which was intended to confuse the marketplace and which in fact did cause such confusion. Amfesco showed its 1984 version to the public to promote sales at the January 14, 1985 New York market week and the February, 1986 shoe show, both of which draw department store buyers and others interested in purchasing slippers for resale to the public. Tillman testified that the 1984 slipper was brought to these shows in order to make it clear to buyers who had purchased the 1984 slipper that Amfesco was now marketing a new and different version of a bear’s paw slipper (the “1985 slipper”). It is clear to the Court, however, that the 1984 slipper was brought to these shows in order to capitalize on the excitement that had been generated by Animal Fair’s product by confusing prospective buyers.

In February of 1985, Amfesco continued its deceptive and unfair practices by running a deliberately misleading advertisement in Footwear News, a trade journal. See Plaintiff’s Exhibit 11, attached to this Memorandum as Appendix A. This advertisement, which was entitled “PLEASE BEAR WITH US WHILE WE MAKE AN IMPORTANT LEGAL ANNOUNCEMENT,” stated that “Amfesco Industries, Inc. has the sole right to manufacture and sell bear paw slippers and other types of animal feet slippers as copyrighted by Am-fesco Industries, Inc.” Amfesco president Greenblatt also sent reprints of this ad, along with a cover letter, to many department store buyers. Amfesco contends that the advertisement was not misleading, since it does have a copyright on the slipper design which it developed for the 1985 Christmas season. While an exceedingly technical reading of the language of the ad might support the view that Amfesco was merely trying to let the industry know that it would protect its copyright, the only reasonable interpretation is that Amfesco sought to convey the impression that it owned the concept of the bear’s foot slipper and that it was solely able to manufacture and sell such a product. A reader of the ad in question would naturally think that all other makers of bear’s foot style slippers, including Animal Fair, are infringing Amfesco’s copyright. Plaintiff presented credible evidence that some department store buyers did interpret the statement in the ad to mean that Amfesco owned all rights to produce and sell bear's paw style slippers. See Deposition of Katherine Ann Nysven, at 32-36; Affidavit of Lisa Jura-sinski, June 25, 1985, Plaintiff’s Exhibit 67; Affidavit of Diane Hauschile, June 20, 1985, Plaintiff’s Exhibit 68. The Court finds that this advertisement was a deceptive and outrageous device on the part of Amfesco. The egregious nature of the advertisement is heightened by the fact that it was distributed shortly after Amfesco’s response to Animal Fair’s “cease and desist” letter, in which Amfesco indicated that it would stop selling its “1984 slipper.”

Amfesco’s development of its “1985 slipper,” the product that is the focus of the present motion for preliminary injunctive relief, must be viewed in the context of the foregoing discussion. From the very outset, Amfesco set out to copy Animal Fair’s creative design and to interfere with Animal Fair’s proprietary rights. Amfesco’s “1984 slipper” was a brazen “knockoff” that was identical in every material respect to Animal Fair’s BEARFOOT™ slipper. Amfesco’s “1985 slipper,” although slightly different from its initial “knockoff” product, is still essentially a copy of the BEAR-FOOT™ slipper. Amfesco attempted to prove to the Court that its 1985 slipper was the result of independent creative efforts on the part of its designers, that Amfesco attempted to make the slipper “as different as possible” from the BEARFOOT™ product, and that the two slippers are not substantially similar products. The evidence presented to the Court clearly demonstrated that Amfesco’s positions are without support.

Amfesco’s 1985 slipper, Plaintiff’s Exhibit 20, was designed primarily by Norman Roy and Brenda Tillman, during the fall of 1984 and the first few months of 1985. Amfesco claims that this product was the culmination of independent creation on its part. Tillman testified that after she became aware of Animal Fair’s claim of infringement with respect to the 1984 slipper, she tried to make the slipper “as different as possible” from the BEARFOOT™. The Court cannot accept these claims. Tillman admitted that she made interchangeable reference to the 1984 Amfesco slipper and to Animal Fair’s slipper throughout the design of the 1985 version of Amfesco’s slipper. Moreover, in a February 4, 1985 memorandum to Roy, with copies to Farace and Greenblatt, Tillman stated that she needed to take a sample of the slipper "... to the attorney to assure we are going to have enough difference....” Plaintiff’s Exhibit 40. The Court finds that Tillman and Roy merely “fine tuned” the 1984 slipper for the 1985 line by adding molded plastic toes and by making some minor changes in detail. Amfesco’s 1985 slipper is substantially similar to Animal Fair’s BEARFOOT™ design. Amfesco incorporated numerous aspects of the artistic design it copied from Animal Fair’s slipper in 1984. These included the sculptural aspect of being stuffed, the same approximate height profile, the same profile when viewed from the top, the same unusual sole shape, the same number of unrealistic tan toes or projections, the texturing of the molded toes to make them appear “fuzzy” like the brushed nylon cloth toes of the Animal Fair slipper, a similar placement and presence of a dark colored animal print on the sole of the slipper, and a similar combination of fabric textures and colors.

While Animal Fair’s and Amfesco’s slippers both purport to be a representation of a bear’s paw, neither slipper accurately reflects the actual appearance of a bear’s paw. Moreover, both slippers differ from an actual bear’s paw in the same respects. This is significant because it highlights the extent to which Amfesco copied Animal Fair’s unique design features. David Gar-shelis, a wildlife zoologist and expert on bear anatomy, testified in great detail regarding the ways in which the slippers differed from actual bear’s paws. First, the fur on both pairs of slippers is shorter, less coarse, and more fuzzy and fluffy than real bear’s fur; the fur on each slipper also sticks up randomly rather than falling in one direction toward the toes as it would on a real bear. Second, the bottoms of the slippers are both unrealistic in that a real bear’s paw would have fur or hair covering all the tan portions of the slippers. Third, the toe prints on the bottoms of each slipper are not properly spaced from each other or positioned on the sole. Further, on a real bear there would be five rather than four toepads. Finally, a real bear has five distinct, separate fur covered toes, with claws projecting from those toes. The four projections which are attached to the front of the slippers of both parties do not resemble in any manner either the toes or claws of a real bear. These projections are perhaps the most outstanding feature of Animal Fair’s creative design. The comparison of both slippers to a real bear’s paw clearly reveals that Amfesco copied Animal Fair’s toe design, as well as a number of other features.

In an attempt to downplay the unique character of the BEARFOOT™ design, Amfesco argues that both slippers are similar in many ways to the "mop” slipper, a conventional item in the trade which AM-FESCO has manufactured for years. See Defendant’s Exhibits Z-30 to Z-32. It is clear from the testimony, however, that neither Amfesco nor Animal Fair made reference to conventional mop slippers in developing their respective designs. Moreover, the shape, profile, fabric, sole shape, projections, and artwork on the sole of the BEARFOOT™ slipper are all significantly different from the conventional mop slipper design. The Court therefore concludes that no significant portion of the design which Animal Fair seeks to protect, and which Amfesco copied in both its 1984 and 1985 slippers, comes from a conventional mop slipper.

There are some minor differences between the 1985 Amfesco slipper and the BEARFOOT™ design. Amfesco chose a somewhat darker brown fur, and it added a logo or trademark on the sole of its slippers designed for the department store trade, at approximately the same position as the large dark paw print on the BEAR-FOOT™ slipper. These differences are negligible. The difference upon which Am-fesco places the most emphasis is the toe, or claw, which it developed for its 1985 slipper. These toes are molded plastic, and have a black tip which somewhat resembles a nail. As the Court has already noted, the primary motivation for the development of the plastic toe was cost. Roy and Tillman developed several prototype toes before they settled on the final production version. This version was chosen in part because it was textured in order to make it look “fuzzy” like the brushed nylon cloth toes on Animal Fair’s BEARFOOT™ slipper. While the toes of the two slippers are slightly different in appearance, they are placed in a similar position on each slipper, and give the same overall impression to the casual observer.

In short, Amfesco’s 1985 bear’s paw slipper is substantially copied from Animal Fair’s copyrighted BEARFOOT™ slipper. Animal Fair presented credible evidence to the Court that department store buyers have recognized that the Amfesco slipper is a copy of Animal Fair’s design; Amfesco failed to produce any department store buyer to testify that its slipper was not a copy of the BEARFOOT™ slipper. The Court finds that both retail buyers and consumers would be confused as to the origin of the Amfesco slipper, given the similarities in design and Amfesco’s actions in marketing the item.

The presence of Amfesco’s confusingly similar slippers in the marketplace poses a serious threat to Animal Fair. The market for a novelty item such as the bear’s paw style slipper generally lasts for a maximum of two years. Items such as these are considered fads, for which consumer demand peaks quickly and then rapidly diminishes. Accordingly, the upcoming 1985 Christmas season is the last major retail opportunity with respect to Animal Fair’s slippers. As a result of Amfesco offering its 1985 version copying aspects of Animal Fair’s BEARFOOT™ slipper, department store buyers have become confused. Purchase order documents of Amfesco indicate that buyers are purchasing Amfesco’s slippers by referring to Animal Fair’s BEAR-FOOT™ trademark. Plaintiff’s Exhibit 87. This is a clear indication that the two slippers have become confused in buyers’ minds. Plaintiff has also offered credible evidence that some buyers are uncertain as to whether Animal Fair or Amfesco owns the rights to Animal Fair’s design. See, e.g., Testimony of Dean Fitch, Transcript at 466; Affidavit of Lisa Jurasinski, Plaintiff’s Exhibit 67; Affidavit of Diane Haus-chile, Plaintiff’s Exhibit 68. This confusion obviously poses a threat of harm to Animal Fair.

The competition from Amfesco’s slipper has also resulted in a chaotic marketplace. Animal Fair president Dean Fitch testified that a number of buyers have delayed their orders and that others have purchased the BEARFOOT™ slipper at reduced levels due to the presence of copies in the market. Transcript at 467. See also Affidavit of Gerry Curatola, Plaintiff’s Exhibit 64. Other buyers have split their orders between the slippers despite recognition of Amfesco’s lower quality, to protect themselves in the event of the market being flooded with lower quality slippers from Amfesco which consumers may not distinguish from Animal Fair’s higher quality slipper. Deposition of Katherine Ann Nys-ven, at 29-82.

Because of the similarities between the slippers, and differences between the quality of the parties’ slippers, Animal Fair’s reputation for quality and its practice of offering a unique design to the marketplace are both in jeopardy. Moreover, the confusing similarity between the products will clearly result in lost sales for Animal Fair. Animal Fair’s vice president of sales testified that the company has cut its production by several hundred thousand pairs. Transcript at' 66. Finally, if the present situation of the chaotic market is allowed to persist without protection to Animal Fair, it will be essentially impossible to determine at a later time what Animal Fair’s sales would have been but for the presence of Amfesco’s copied design in the marketplace.

The Court was shocked at the evidence presented by Amfesco, as well as the manner in which it was presented. There was an almost total lack of candor on the part of Amfesco’s witnesses. The officers and employees of Amfesco who testified on its behalf at the preliminary injunction hearing were argumentative and evasive in answering clear, straightforward questions. The witnesses gave deliberately vague answers time and time again, even after the Court’s admonishment. Finally, testimony of Am-fesco’s witnesses contradicted each other on key points and was inconsistent with statements previously made in the witnesses’ own sworn affidavits. The Court is convinced from all the testimony and evidence that Amfesco failed to conduct itself in good faith either in the development of its bear’s paw slipper or in the presentation of its case in this lawsuit.

DISCUSSION

Plaintiff has moved the Court for an order enjoining the defendant from manufacturing, displaying, promoting, selling, and distributing its 1984 and 1985 copies of plaintiff’s copyrighted BEARFOOT™ slipper during the pendency of this action, and enjoining the defendant from advertising in such a manner as to create the impression of an affiliation between the plaintiff and the defendant. The test for whether preliminary injunctive relief should issue is set forth in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109 (8th Cir.1981). Four factors are to be considered: Dataphase, 640 F.2d at 114. There are two basic grounds for plaintiff’s motion. First, plaintiff contends that the defendant has infringed its valid copyright on the BEARFOOT”* slipper. Second, plaintiff argues that the defendant has engaged in unfair competition, in violation of the Lanham Trademark Act, 15 U.S.C. § 1125(a). While the Court has determined that plaintiff has demonstrated a likelihood of success on both grounds, the primary basis for the Court’s decision to grant plaintiff’s motion for a preliminary injunction is the claim of copyright infringement.

(1) the probability that movant will succeed on the merits;
(2) the threat of irreparable harm to the movant;
(3) the state of balance between this harm and the injury that granting the injunction will inflict on other parties litigant; and
(4) the public interest.

1. Likelihood of Success on the Merits

A. Copyright

In order to establish a claim of copyright infringement, a plaintiff must prove its ownership of a valid copyright, and copying, or infringement, of the copyrighted work by the defendant. Atari, Inc. v. North American Phillips Consumer Electronics Corp., 672 F.2d 607, 614 (7th Cir.), cert.00000ed, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 145 (1982); 3 Nimmer on Copyright, § 13.01. Plaintiff has introduced into evidence Certificate of U.S. Copyright Registration No. VA-170-162, dated December 17, 1984, issued to Animal Fair. This registration is prima facie evidence of the validity of the copyright and the facts stated in the certificate, including ownership. 17 U.S.C. § 410(c); Novelty Textile Mills v. Joan Fabrics Corp., 558 F.2d 1090, 1092 n. 1 (2d Cir.1977). Defendant has not contested the ownership of the copyright, but has attacked the validity of the copyright on the ground that plaintiff’s notice of copyright was inadequate pursuant to 17 U.S.C. §§ 401 et seq.

(1) Copyright notice

The requirements for copyright notice are set forth at 17 U.S.C. § 401:

(a) General requirement. — Whenever a work protected under this title is published in the United States or elsewhere by authority of the copyright owner, a notice of copyright as provided by this section shall be placed on all publicly distributed copies from which the work can be visually perceived, either directly or with the aid of a machine or device.
(c) Position of Notice. — The notice shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright. The Register of Copyrights shall prescribe by regulation, as examples, specific methods of affixation and positions of the notice on various types of works that will satisfy this requirement, but these specifications shall not be considered exhaustive.

Defendant attacks the adequacy of plaintiff’s copyright notice on two grounds: first, that the hangtags which have always been attached to the BEARFOOT™ slippers by plaintiff, and which have always included a copyright notice, nevertheless provide insufficient notice under the statute, and second, that the inner seam tag for some of the first produced BEARFOOT slippers did not originally include a copyright notice, and that plaintiff failed to adequately correct this omission. The Court has determined that notwithstanding the fact that some of plaintiffs slippers were distributed without a copyright notice on the seam label inside the slipper, plaintiffs copyright is valid under the notice savings provision of the Copyright Act. 17 U.S.C. § 405. Accordingly, the Court will not reach the question of whether the copyright notice on the hangtag between the pair of slippers was affixed in such a manner and location as to give “reasonable notice” of the claim of copyright. 17 U.S.C. § 401.

Publication of copies of a work with a defective notice of copyright does not necessarily impair a creator’s copyright protection. Section 405 of the Copyright Act provides, in part:

(a) Effect of Omission on Copyright. —The omission of a copyright notice prescribed by sections 401 through 403 from copies or phonorecords publicly distributed by authority of the copyright owner does not invalidate the copyright in a work if—
(2) registration for the work has been made before or is made within five years after the publication without notice, and a reasonable effort is made to add notice to all copies or phonorecords that are distributed to the public in the United States after the omission has been discovered. ...

17 U.S.C. § 405(a)(2). In the instant case, registration was made within five years after the first proven publication. In accordance with company policy, plaintiff routinely placed a copyright notice on a sewn-in seam label in the interior of its slipper. A certain percentage of the early slippers produced by plaintiff, however, inadvertently omitted the copyright notice from this label. Plaintiff first became aware of this omission in mid-November, 1984. Plaintiff’s president immediately called the production facility to verify the absence of the notice from the labels and to instruct the production personnel to add such a notice. Steps were promptly taken to place the copyright notice on the seam label, and later slippers contained such a notice. The Court therefore finds that the plaintiff made “reasonable effort” to add the copyright notice to its slippers, so as to cure the original omission of notice under section 405(a)(2).

While the defendant is not barred from raising the technical defense of copyright notice, the Court is mindful of the following facts in weighing the equities involved in the present motion and in preliminarily determining the sufficiency of plaintiff’s copyright notice and cure efforts. First, the defendant never looked for a copyright notice, either on the hangtag or the seam label. Second, the defendant boldly manufactured and marketed its 1985 copies of plaintiff’s copyrighted work even after it was notified by plaintiff of the existence of its copyright, in December of 1984. Finally, the defendant was not misled in any way by the alleged lack of notice. See American Greetings Corp. v. Kleinfab Corp., 400 F.Supp. 228, 234 (S.D.N.Y.1975). The Court therefore rejects defendant’s notice defense, and finds that plaintiff has a valid copyright in its BEARFOOT™ slipper.

(2) Scope of copyright protection

A threshold question in any copyright case is what characteristics of the plaintiff’s design are entitled to copyright protection. Eden Toys, Inc. v. Marshall Field & Co., 675 F.2d 498 (2d Cir.1982). The protection afforded a copyrighted work covers only the work’s particular expression of an idea, and not the idea itself. Mazer v. Stein, 347 U.S. 201, 217-18, 74 S.Ct. 460, 470-71, 98 L.Ed. 630 (1954); 17 U.S.C. § 102(b) (copyright protection does not extend “to any idea ... concept [or] principle ... regardless of the form in which it is described, explained, illustrated, or embodied ... ”). The defendant contends that plaintiffs position is therefore overly broad, since it would prohibit anyone from marketing any slipper that resembled a bear’s foot. The copyright laws, according to defendant, protect only the artistic expression actually embodied in Animal Fair’s particular bear’s foot slipper. Plaintiff’s theory in this lawsuit, however, is not as broad as the defendant contends. Plaintiff does not argue that it owns the concept of a bear’s paw type slipper. Indeed, neither plaintiff’s slipper nor defendant’s slipper are realistic representations of a bear’s paw. The plaintiff seeks only to protect what may be properly copyrighted under the law: the particular artistic expression embodied in its novelty slipper.

A second threshold issue relating to the scope of copyright protection is whether and to what extent the plaintiff’s slippers are “useful articles” so as to be excluded from coverage under the Copyright Act. Under the Act, a “useful” article is “an article having an intrinsic utilitarian function that is not merely to portray the appearance of the article or to convey information.” 17 U.S.C. § 101. The design of a useful article is protectible under the copyright laws “only if, and only to the extent that, such design incorporates pictorial, graphic, or sculptural features that can be identified separately from, and are capable of existing independently of, the utilitarian aspects of the article.” Id. Defendant attempts to limit the scope of plaintiff’s copyright by arguing that the BEARFOOT™ slipper is a useful article which cannot as a whole be the subject of a copyright. Defendant contends that the only artwork of the BEARFOOT™ slipper that can be identified separately from the slipper itself are the four toes extending from the forward portion of the slipper and the artwork on the sole of the slipper, and that the Court may examine only these features in determining whether defendant has infringed any copyright of plaintiff.

The Court will assume for purposes of the present motion that plaintiff’s slipper is a useful article within 17 U.S.C. § 101. Notwithstanding this assumption, defendant’s characterization of the scope of copyright protection in this case is far too narrow. Virtually all of the design aspects of plaintiff’s slipper “can be identified separately from, and ... exist ... independently of, the utilitarian aspects of the [slipper].” 17 U.S.C. § 101. It is clear that such features need not be physically separable from the useful article in order to be protectable; it is enough that they can be conceptually separated. Kiesel-stein-Cord v. Accessories by Pearl, Inc., 632 F.2d 989, 993 (2d Cir.1980). In the present case, plaintiff’s design features are conceptually separate from the utilitarian aspects of its slipper. Plaintiff correctly notes that one could draw a line drawing of the whole shape and design which would be recognizable as a fanciful artistic rendition of a bear’s paw, regardless of what type of functional or utilitarian object it was used to adorn. See Ted Arnold Ltd. v. Silver-craft Co., 259 F.Supp. 733 (S.D.N.Y.1966) (pencil sharpener with exterior shape in form of antique telephone held protecta-ble); Royalty Designs, Inc. v. Thrifticheck Service Corp., 204 F.Supp. 702 (S.D.N.Y. 1962) (toy banks in shape of dogs held protectable). The impractical width and shape of the BEARFOOT™ sole, the artwork on the sole, the particular combination of colors, the profile of the slipper, the stuffed aspect of the slipper, and the toes are all sculptural features which comprise the artistie design and which are wholly unrelated to function. The Court therefore finds that the entire exterior design of plaintiffs slipper is protectable under the Copyright Act.

(3) Infringement

The critical issue in plaintiffs copyright claim is whether defendant copied, or infringed, plaintiffs copyrighted work. The issue of infringement is divided into two sub-issues: whether the defendant had access to plaintiffs copyrighted work and whether the copyrighted and allegedly infringing work are “substantially similar.” Eden Toys, Inc. v. Marshall Field & Co., 675 F.2d 498 (2d Cir.1982). In the present case, the evidence clearly demonstrated that the defendant used plaintiffs copyrighted BEARFOOT™ slipper as a model when it designed its slipper. The infringement issue is therefore confined to the question of whether the two slippers are “substantially similar.”

The “substantial similarity” requirement “presents one of the most difficult questions in copyright law, and one which is the least susceptible of helpful generalizations.” 3 Nimmer on Copyright, § 13.-03[A]. The Eighth Circuit, in Wihtol v. Crow, 309 F.2d 777 (1962), adopted the following test:

The test of infringement is whether the work is recognizable by an ordinary observer as having been taken from the copyrighted source. Slight differences and variations will not serve as a defense.

Id. at 780, quoting Bradbury v. Columbia Broadcasting System, Inc., 287 F.2d 478 (9th Cir.1961). Stated slightly differently, if enough “material of substance and value” has been taken so that an ordinary observer would recognize that there is

“borrowing” from the original, the two items are “substantially similar.” Atari, Inc. v. North American Philips Consumer Electronics Corp., 672 F.2d 607, 614 (7th Cir.), cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 145 (1982). Plaintiff correctly points out that under the above test, since similarities rather than differences are considered, the presence of differences does not negate infringement. Novelty Textile Mills v. Joan Fabrics Corp., 558 F.2d 1090, 1093 n. 4 (2d Cir.1977). This test does not contemplate a detailed dissection of the two works, but rather hinges on whether the accused work has captured the “total concept and feel” of the copyrighted work. Atari, Inc., 672 F.2d at 614; Roth Greeting Cards v. United Card Co., 429 F.2d 1106, 1110 (9th Cir.1970).

The Court finds that the defendant’s 1985 bear’s paw style slipper is substantially similar to plaintiff’s BEARFOOT™ slipper. The Court has already made detailed factual findings on the similarities between the two slippers, and need not repeat that discussion here, except to note that the similarity is between the artistic or expressive aspects of the slipper design rather than simply the concept of a bear’s paw type slipper. In short, it is clear to the Court that the defendant copied a number of key design aspects of plaintiff’s slipper, and that the two slippers very closely resemble each other. Moreover, the ordinary observer would certainly recognize that defendant’s slipper was taken from plaintiff’s slipper. Wihtol v. Crow. There are admittedly some differences between the two slippers, the most prominent being the black tip on the end of the toes on defendant’s product. These minor differences, however, are insufficient to defeat plaintiff’s claim of infringement. Novelty Textile Mills, 558 F.2d at 1093 n. 4. They clearly do not alter the fact that defendant has captured the “total concept and feel” of plaintiff’s unique BEARFOOT™ slipper. Roth, 429 F.2d at 1110.

Based on the foregoing discussion, the Court finds that the plaintiff has demonstrated a substantial likelihood that it will succeed on the merits of its copyright claim at trial. Accordingly, the plaintiff has established the first prong of the four part test for the issuance of preliminary injunc-tive relief set forth in Dataphase.

B. Unfair competition

Plaintiff alleges that defendant is engaging in unfair competition by violating 15 U.S.C. § 1125(a), which provides in part as follows:

Any person who shall affix, apply, or annex, or use in connection with any goods or services, or any container or containers for goods, a false designation of origin, or any false description or representation ... and shall cause such goods or services to enter into commerce ... shall be liable to a civil action ... by any person who believes that he is or is likely to be damaged by the use of any such false description or representation.

The elements of a cause of action for unfair competition under 15 U.S.C. § 1125(a) are outlined in Truck Equipment Service Co. v. Fruehauf Corp., 536 F.2d 1210, 1217 (8th Cir.), cert. denied, 429 U.S. 861, 97 S.Ct. 164, 50 L.Ed.2d 139 (1976):

1. The copied features must be nonfunctional;
2. The non-functional features must have secondary meaning, that is, they must tend to be looked to as an indication of source or origin of the goods; and
3. There must be a likelihood of confusion among prospective purchasers as to source.

The Eighth Circuit in Fruehauf set forth the following test for functionality:

[WJhere the features are “functional” there is normally no right to relief. “Functional” in this sense might be said to connote other than a trade-mark purpose. If the particular feature is an important ingredient in the commercial success of the product, the interests in free competition permits its limitation in the absence of a patent or copyright. On the other hand, where the feature or, more aptly, design, is a mere arbitrary embellishment, a form of dress for the goods primarily adopted for purposes of identification and individuality and, hence, unrelated to basic consumer demands in connection with the product, imitation may be forbidden where the requisite showing of secondary meaning is made.

536 F.2d at 1217, quoting Bliss v. Gotham Industries, Inc., 316 F.2d 848, 855 (9th Cir.1963) (citations omitted).

Plaintiff argues that the features comprising the design of its slipper are arbitrary and have nothing to do with the product’s usefulness. Rather, plaintiff contends that its design serves to identify and individualize its product, and therefore sets it apart from others in the marketplace. Basic consumer demand for slippers, according to the plaintiff, centers on features such as fit, durability, cost, and machine washability. Plaintiff therefore argues that the BEARFOOT™ design is non-functional and entitled to trademark protection.

Defendant argues that it is the unusual appearance of the bear’s foot slipper that generates consumer demand, and that the bear’s foot design is therefore functional. Defendant places considerable reliance on the Ninth Circuit’s decision in Pagliero v. Wallace China Co., 198 F.2d 339 (9th Cir.1952). In Pagliero, a manufacturer and distributor of hotel china brought an unfair competition action based upon alleged copying of its designs. The court rejected the plaintiff’s claim on the ground that the designs on the china were non-protected functional features, noting that “[o]ne of the essential selling features of hotel china, if, indeed, not the primary, is the design[,] ... [and that] [t]he attractiveness and eye-appeal of the design sells the china.” Id. at 343.

Defendant’s argument is not without merit. The Court has determined, however, that the design features of plaintiff’s BEARFOOT™ slipper are non-functional. The decision in Pagliero should be interpreted narrowly in order to avoid creating disincentives for the development of creative and attractive designs. Keene Corp. v. Paraflex Industries, Inc., 653 F.2d 822, 825 (3d Cir.1981). The Ninth Circuit itself has retreated somewhat from its broad holding in Pagliero. In Vuitton et Fils S.A. v. J. Young Enterprises, Inc., 644 F.2d 769 (1981), the Ninth Circuit expressly noted that a product feature could not be viewed as functional simply because it contributes to consumer appeal and salability of the product. Id. at 773. In the present case, the unique design of plaintiff’s product is primarily related to identification and individuality, rather than to the utilitarian function of the product. Plaintiff has therefore satisfied the first element of the unfair competition cause of action under section 1125(a).

The second element of the unfair competition cause of action is that the non-functional features must have “secondary meaning.” The Eighth Circuit set forth the following description of “secondary meaning” in Fruehauf:

“[A] name, mark, or symbol by long and exclusive use and advertising by one person in the sale of his goods * * * may become so associated in the public mind with such goods * * * that it serves to identify them and distinguish them from the goods * * * of others. When such an association exists, the name, mark, or symbol is said to have acquired a ‘secondary meaning,’ in which the original user has a property right which equity will protect against unfair appropriation by a competitor.” * * * “A trade-mark or a trade name may have acquired a secondary meaning in one locality but lack such a meaning in another.”

536 F.2d at 1219, quoting Shoppers Fair of Arkansas, Inc. v. Sanders Co., 328 F.2d 496, 499 (8th Cir.1964).

Defendant argues that plaintiff has failed to demonstrate secondary meaning, since plaintiff entered the slipper market with its bear’s foot slipper only recently and is therefore not a company with a long and exclusive use of the product. Proof of secondary meaning, however, is unnecessary where a product’s exterior dress is inherently distinctive. Chevron Chemical Co. v. Voluntary Purchasing Groups, 659 F.2d 695, 702 (5th Cir.1981) cert. denied, 457 U.S. 1126, 102 S.Ct. 2947, 73 L.Ed.2d 1342 (1982); Perfect Fit Industries, Inc. v. Acme Quilting Co., 618 F.2d 950, 952-54 (2d Cir.1980); cert. denied, 459 U.S. 832, 103 S.Ct. 73, 74 L.Ed.2d 71 (1982). See also 1 J. McCarthy, Trademarks and Unfair Competition, § 7:31 at 263 (2d ed. 1984) (U.S. Patent and Trademark Office permits registration of inherently distinctive product shapes on the Principal Register without any further showing of secondary meaning). In the instant case, the unique design of plaintiff’s BEARFOOT™ slipper certainly qualifies as inherently distinctive exterior dress, so that plaintiff need not demonstrate secondary meaning.

Even if plaintiff was required to demonstrate secondary meaning, however, the facts in this case are sufficient to establish this element. An inference of secondary meaning arises when a defendant copies a plaintiff’s design. Fruehauf, 536 F.2d at 1220 n. 13. Such an inference is clearly present in this case, since the defendant brazenly copied key features of plaintiff’s slipper design. The presence of secondary meaning is further evidenced by buyers’ comments or questions regarding affiliation between the parties and by defendant’s advertisement misleadingly claiming rights in the bear paw slipper design. The Court therefore finds that the plaintiff has established the element of secondary meaning.

The final element in the section 1125(a) unfair competition cause of action is the likelihood of confusion among prospective purchasers as to source or origin. The plaintiff need not demonstrate actual confusion. Squirtco v. Seven-Up Co., 628 F.2d 1086, 1091 (8th Cir.1980). In the present case, there is clearly a likelihood of confusion between the two bear’s foot slippers. The substantial similarity which plaintiff demonstrated in order to prevail on its copyright claim is the primary factor which leads to this conclusion. A second supporting factor is the fact that consumers purchasing the slippers in question will likely do so on impulse rather than after “careful and deliberate examination of the products.” See Application of E.I. duPont DeNemours & Co., 476 F.2d 1357, 1361 (C.C.P.A.1973). Finally, likelihood of confusion can be inferred where the defendant has intended to trade upon the plaintiffs reputation. Fruehauf 536 F.2d at 1220. The evidence in the instant case, in particular the defendant’s direct copying of plaintiff’s product, its grossly misleading advertisement, and its use of its “1984 slipper” at trade shows after it had been advised of plaintiff’s copyright, strongly suggests an intent to trade on plaintiff’s reputation. Plaintiff has therefore established the third and final element of the cause of action for unfair competition under 15 U.S.C. § 1125(a). Accordingly, the Court finds that the plaintiff has demonstrated a substantial likelihood that it will succeed on the merits of its unfair competition claim at trial.

2.Irreparable Harm

The general rule in copyright infringement cases is that irreparable injury is presumed for the purposes of a preliminary injunction motion once the moving party has established a case of copyright infringement. Northwestern Bell Tel. Co. v. Bedco of Minn., Inc., 501 F.Supp. 299, 303 (D.Minn.1980); Metro-Goldwyn-Mayer v. Showcase Atlanta Co-op Prod., 479 F.Supp. 351, 362 (N.D.Ga.1979). The plaintiff has demonstrated a substantial likelihood of success on its copyright claim, and has therefore also established the irreparable harm prong of the Dataphase test.

The Court notes that even if there were no such presumption of irreparable harm, the evidence in the present case would support such a finding. In the absence of an injunction, the defendant would continue to flood the market with its inferior quality, infringing products. This would cause the plaintiff both lost profits and lost reputation. It would be exceedingly difficult, if not impossible, to assess the damage to plaintiff at a later time if the defendant were not restrained. Moreover, the short retail life of novelty items such as the BEARFOOT'" slipper heightens the need for a preliminary injunction in this case. See Atari, Inc. v. North American Philips Consumer Elec. Corp., 672 F.2d 607, 620 (7th Cir.) cert. denied, 459 U.S. 880, 103 S.Ct. 176, 74 L.Ed.2d 145 (1982). The plaintiff has therefore demonstrated a clear threat of irreparable harm.

3. Balance of Harms

The balance of harms does not militate against the issuance of a preliminary injunction. The only harm which the defendant will suffer is the lost profits on its infringing slippers. This is not a weighty equitable consideration. Atari, Inc., 672 F.2d at 620. A willful infringer which seeks to profit by copying from others’ creative ideas should not be heard to complain that its interests will be disturbed by an injunction. See Helene Curtis Industries v. Church & Dwight Co., 560 F.2d 1325, 1333 (7th Cir.1977), cert. denied, 434 U.S. 1070, 98 S.Ct. 1252, 55 L.Ed.2d 772 (1978). Moreover, the potential harm to the plaintiff in terms of lost profit and reputation is considerable, and quite likely outweighs any harm which the defendant might suffer. The Court therefore concludes that the balance of harms favors the issuance of a preliminary injunction.

4. Public Interest

The copyright laws are designed to “... encourage individual effort and creativity by granting valuable enforceable rights.” Atari, Inc., 672 F.2d at 620; see Mazer v. Stein, 347 U.S. 201, 219, 74 S.Ct. 460, 471, 98 L.Ed. 630 (1954). The granting of a preliminary injunction would help to promote the above goal and would therefore serve the public interest. The defendant argues that the public has an interest in competition. The public’s interest, however, is in fair competition, and not the unlawful and unfair competition engaged in by the defendant.

CONCLUSION

The plaintiff has demonstrated a substantial likelihood of success on the merits of its copyright and unfair competition claims. Plaintiff has further established the equitable prerequisites for in-junctive relief set forth in Dataphase Systems, Inc. v. C L Systems, Inc., 640 F.2d 109 (8th Cir.1981). A preliminary injunction restraining the defendant from manufacturing, promoting, displaying, distributing, or selling its 1984 or 1985 copies of plaintiffs copyrighted BEARFOOT™ slipper, or any other design confusingly similar with the BEARFOOT™ slipper, is therefore warranted in the present case.

This Memorandum accompanies and is made a part of the Court’s Orders of July 12, 1985, and July 19, 1985.

APPENDIX A

      . The Court also preliminarily enjoined the defendant from advertising or promotion which tends to communicate that defendant or its representatives have the sole right to distribute bear’s foot slippers, and from any other advertising or promotion which tends to create the impression of an affiliation or licensing relationship between Animal Fair, Inc. and defendant. In a subsequent Order dated July 19, 1985, the Court required the plaintiff to post a surety bond in the amount of $300,000 with the Clerk of Court.

      . The Animal Fair slipper is also available in white fur. See Plaintiffs Exhibit 45.

      . The precise number of BEARFOOT™ slippers produced without a copyright notice on the interior seam label has not been determined. Animal Fair president Dean Fitch estimated that approximately 50,000 slippers were manufactured between August 1, 1984 and early November, 1984, the time period in question. Twenty percent of these slippers were assembled in Haiti, and all contained a notice on the seam label. The remaining 80 percent of the slippers were assembled in Eden Valley, Minnesota, where the absence of notice was detected. It is unclear how many of the slippers assembled in Minnesota lacked a copyright notice on the inner seam label.

      . Richard Duff, Animal Fair’s vice president of sales, had some recollection of hearing of the absence of notice from the sewn-in seam label, and speculated that it probably would have been in July, 1984. This could not have been with respect to Animal Fair BEARFOOT™ slippers intended for distribution and sale to the public, however, since production did not begin until August, 1984, and distribution did not begin until late August, 1984.

      . The toe pads on its sole pattern are somewhat oblong, whereas the toe pads on Animal Fair’s BEARFOOT™ slipper are of more rounded shape. This difference, however, is apparent only upon fairly close inspection of the two products.

      . A knockoff is a copy of another product’s design that sells for less than the original.

      . This letter stated, in part:
      Please note that I have taken the liberty to enclose a recent publication which depicts Amfesco’s exclusive "BEAR PAW” slipper and mentions other animal feet slippers that are the exclusive and copyrighted property of Am-fesco Industries Inc.
      Plaintiffs Exhibit 12.

      . One of Animal Fair's advertising brochures serves as an excellent example of the type of neutral language which Amfesco could have utilized if it had simply been interested in letting the trade know that it intended to protect its copyright. This brochure contained pictures of several different Animal Fair slipper products. The back of the brochure contained the following statement:
      COPYRIGHT NOTICE. It is the policy of Carousel by guy’" to protect its creative designs by all legal means, including copyrights and patents. We solicit trade cooperation in the avoidance of infringement. Carousel by guy’“ will take action against infringers to protect its interests. All rights are reserved under the Universal Copyright Convention and the Pan American Union.
      Plaintiffs Exhibit 54.

      . The Court does not mean to suggest that this is a complete and exhaustive description of the many ways in which the two slippers differ from a real bear’s paw. Garshelis enumerated a number of other discrepancies.

      . Amfesco, like Animal Fair, also manufactures a bear’s foot slipper with white fur. Defendant’s Exhibit Z-2.

      . Amfesco did not add this logo to those of its slippers designed for sale in discount retail stores. On these slippers, it removed the large paw print, leaving only the four toe prints which it borrowed from Animal Fair’s slipper.

      . The Court has the discretion on a motion for preliminary injunction to consider affidavits as well as live testimony, given the necessity of a prompt decision. See, e.g. Bracco v. Lackner, 462 F.Supp. 436, 442 (N.D.Cal.1978). The Court has admitted the affidavits of buyers into evidence in the present case solely as proof of the buyers’ state of mind.

      . The plaintiff has also asserted a claim under the Minnesota Deceptive Trade Practices Act, Minn.Stat. § 325D.43 et seq. In light of the Court’s holding that the plaintiff has demonstrated a substantial likelihood of success on the merits of its copyright and unfair competition claims, so as to justify the issuance of a preliminary injunction, the Court will not reach this state law claim.

      . Defendant’s argument is based on 37 C.F.R. § 202.2(b)(9), which provides that copyright notice on detachable tags does not meet the requirements of proper notice for a work published before January 1, 1978. This regulation derived from cases which held that the requirement in the Copyright Act of 1909 that the notice be "affixed” to the work mandated a permanently attached notice. E.g., Gardenia Flowers, Inc. v. Joseph Markovits, Inc., 280 F.Supp. 776, 783 (S.D.N.Y.1968). The 1976 Copyright Act apparently liberalized this requirement by providing that "the notice shall be affixed to the copies in such manner and location as to give reasonable notice of the claim of copyright.” 17 U.S.C. § 401. Plaintiff contends that 37 C.F.R. § 202.2(b)(9) is inapplicable to this case because its slipper was published after January 1, 1978. Plaintiff further argues that the copyright notice on the hangtag satisfies the requirements of 17 U.S.C. § 401(c).

      . The Court would simply note that there is no doubt in this case that the copyright notice on the hangtag was prominent to anyone purchasing or inspecting the product, and that defendant’s vice president Edmund Farace admitted viewing the hangtag when he first saw the BE-ARFOOT" slipper.

      . The date of first publication of the BEAR-FOOT" slipper was June 12, 1984, and the effective date of the copyright registration was December 17, 1984.

      . Plaintiff makes a strong argument that the BEARFOOT'" slipper is not a useful article within the statutory definition. The slipper is a novelty item which is primarily intended for personal adornment. The story on the hangtag, as well as the impractical aspects of the design as a piece of footwear, suggest that the essential quality of the slipper is its unique appearance rather than its use as a functional piece of clothing. The Court need not resolve this issue, however, since it is clear that plaintiffs design is fully entitled to copyright protection even if it is assumed to be a useful article.

      . Defendant also argues that certain features of both slippers are similar to aspects of the designs of conventional "mop slippers" and other designs. Design aspects of another work are relevant, however, only if plaintiff or defendant copied from the work. Dollcraft Industries, Ltd. v. Well-Made Toy Mfg., 479 F.Supp. 1105, 1111 (E.D.N.Y.1978). Neither fact has been established in this case.