## Facts

- Cheney Brothers manufactured silk and created many new fabric patterns each season, investing substantial expense and effort.
- Only a small portion of Cheney’s patterns succeeded commercially, and successful patterns typically remained marketable for a single season of roughly eight to nine months.
- Cheney alleged it was impractical to secure design patents for all patterns, many lacked sufficient originality for design-patent protection, and the designs were not eligible for copyright protection under prevailing administrative practice.
- Doris Silk Corporation, a competitor, copied one of Cheney’s popular designs during the 1928 season and sold competing fabric at a lower price.
- Cheney sought injunctive relief and damages on a theory of unfair competition, asking at most for exclusivity during the season.
- The district court denied preliminary injunctive relief and dismissed the equitable claim; Cheney appealed, and the appellate court assumed (for purposes of decision) that Doris knowingly copied the design.

## Issues

1. Whether a manufacturer has an enforceable property right, under unfair competition principles, to prevent a competitor from copying an unpatented and uncopyrighted silk design.
2. Whether a court may recognize a time-limited exclusive right (“during the season”) in such designs when statutory intellectual property protection is unavailable.

## Decision

- The Second Circuit affirmed the denial of equitable relief and dismissed the complaint.
- The court held Cheney had no protectable right in the design itself beyond the physical fabric embodying it.
- Deliberate copying of an unpatented, uncopyrighted design—without deception, breach of confidence, or other independently wrongful conduct—was not actionable as unfair competition.
- The court rejected Cheney’s proposed season-long exclusivity as an impermissible judicial creation of a quasi-statutory intellectual property right.

## Legal Principles

- In the absence of a recognized common-law right or statutory protection, a creator’s protectable interest is limited to the tangible articles embodying the design; others may imitate the design freely.
- Courts will not create broad exclusive rights in product designs through unfair competition when patent and copyright law do not apply.
- A requested limitation in duration (e.g., exclusivity for a season) does not cure the defect if the theory would, in principle, justify exclusive rights for other designs, processes, machines, or secrets.
- Copying becomes actionable only when coupled with separate wrongful conduct (e.g., passing off, misrepresentation, breach of contract, or violation of a confidential relationship), none of which was alleged as the basis for relief.

## Conclusion

Because Cheney lacked patent, copyright, or a recognized common-law right in its silk pattern, the court held that copying alone did not constitute unfair competition and left the competitor free to continue using the design.


Cheney Bros. v. Doris Silk Corp., 35 F.2d 279 (2d Cir. 1929)