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Parfums Givenchy v. Drug Emporium

This article was originally published in The Rose Sheet

Executive Summary

U.S. Court of Appeals for the Ninth Circuit affirms November 1992 district court ruling that permanently enjoined Drug Emporium from importing, selling, advertising, marketing or otherwise distributing the copyrighted box design for Givenchy's Amarige women's scent ("The Rose Sheet" Nov. 30, 1992, p. 1). The appeals court rejected Drug Emporium's argument that it is not liable under copyright law because it is protected by the "first sale" doctrine, which, according to the ruling, holds that "a sale of a 'lawfully made' copy terminates the copyright holder's authority to interfere with subsequent sales or distribution" of the copy. The appeals court ruled that the doctrine applies only to copies legally made and sold in the U.S.; therefore, Drug Emporium is not protected because Amarige and its packaging are manufactured in France. The decision does not technically bar Drug Emporium from selling the fragrance, but the drug chain would have to import the product without its box in order to do so. Drug Emporium plans to file a petition for reconsideration of the appeals decision and says it will take the case to the Supreme Court if necessary
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