Zimnicki v. Neo-Neon Int’l, Ltd., No. 06 C 4879 (N.D. Ill. Nov. 9, 2009) (Norgle, J.)

Judge Norgle denied defendant Neo-Neon International’s ("Neo-Neon") Fed. R. Civ. P. 12(c) motion for judgment on the pleadings regarding plaintiff’s unjust enrichment claim in this copyright dispute.  Plaintiff sued Neo-Neon and others for alleged infringement of plaintiff’s copyrighted decorative holiday lighting products.  Plaintiff also asserted an unjust enrichment claim against Neo-Neon alleging that Neo-Neon profited from making, using and selling products based upon plaintiff’s designs.  The unjust enrichment claim met the first prong of the preemption test because plaintiff admitted the designs at issue were copyrighted.  But the second prong was not met.  Neo-Neon’s accused acts occurred outside the US, in China.  Because the alleged acts were extraterritorial, they did not fall within the exclusive rights granted to copyright holders pursuant to §106.  This was true even though the same acts in the US would presumably have been covered and, therefore, preempted.

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