Audio Fidelity, Inc., a Corporation v. High Fidelity Recordings, Inc., a Corporation

This is an appeal by plaintiff below in an action for unfair competition based on diversity of citizenship. 28 U.S.C. § 1332 (a)(1). The district court denied recovery. This court has jurisdiction on appeal. 28 U.S.C. § 1291 .

This case raises no question as to patent, copyright or trademark. Appellant records and distributes phonograph records which are universally sold in record jackets or sleeves, usually made of cardboard. The unfair competition alleged is not related to the contents of the record, but solely to the choice of language and the art work and format expressing that language choice used on record jackets.

The district court found (1) that the record jacket was functional, i. e., that it served a functional purpose, and hence no cause of action could exist under the teaching of Pagliero v. Wallace China Co., 9 Cir., 1952, 198 F.2d 339 , (Finding 10); (2) that the appellant’s record jacket was attractive and desirable, but not unique, arbitrary or fanciful (Finding 9); (3) that on the appellant’s record jacket, the words including the term “Railroad Sounds” and the picture appearing thereon have not severally or in combination, acquired a secondary meaning (Finding…