Fonovisa, Inc. v. Cherry Auction, Inc. Richard Pilegard, W.D. Mitchell, Margaret Mitchell

This is a copyright and trademark enforcement action against the operators of a swap meet, sometimes called a flea market, where third-party vendors routinely sell counterfeit recordings that infringe on the plaintiffs copyrights and trademarks. The district court dismissed on the pleadings, holding that the plaintiffs, as a matter of law, could not maintain any cause of action against the swap meet for sales by vendors who leased its premises. The district court’s decision is published. Fonovisa Inc. v. Cherry Auction, Inc., 847 F.Supp. 1492 (E.D.Cal.1994). We reverse.

Background

The plaintiff and appellant is Fonovisa, Inc., a California corporation that owns copyrights and trademarks to Latin/Hispanie music recordings. Fonovisa filed this action in district court against defendant-appellee, Cherry Auction, Inc., and its individual operators (collectively “Cherry Auction”). For purposes of this appeal, it is undisputed that Cherry Auction operates a swap meet in Fresno, California, similar to many other swap meets in this country where customers come to purchase various merchandise from individual vendors. See generally, Flea Market Owner Sued for Trademark Infringement, 4 No.…