MEMORANDUM OF DECISION
This is an action for copyright infringement involving a catalogue of automobile distributors and a sequential numbering system identifying them. The plaintiff, Carolyn Lopez, is the sole оwner of Van *1134 Alen Automotive Catalogs, which has been publishing a catalogue using this code numbering system since 1948. The defendant is a firm involved in rebuilding automobile parts.
In Fеbruary 1974, the plaintiff’s predecessor in interest authorized the defendant to copy from the plaintiff’s 1973 catalogue, allegedly for one publication only. Subsequently, the defendant published an additional distributor catalogue containing the plaintiff’s code system, but which, the plaintiff contends, copied material from her 1974 catalogue, which had not been authorized. The plaintiff sued for copyright infringement and unfair competition over this catalogue of the defendаnt’s. The defendant has moved for summary judgment on the grounds that the code system was no longer protected by a copyright, having been placed in the public domain. For the reasons set out in this memorandum, the defendant’s motion for summary judgment will be granted.
The plaintiff’s code system consists of a two-letter prefix followed by а number. When a new engine is manufactured, the plaintiff analyzes the distributor for that engine model and assigns it a code number. The two-letter prefix designates the manufаcturer of the distributor. If the distributor contains the same individual parts as a previous distributor, it is assigned the same number as the one that identified the prior distributor. If the distributor under sсrutiny contains any new parts, it is designated by the next number in the sequence for that manufacturer. The catalogue indicates to remanufacturers what distributors arе used in particular engine models.
By this motion for summary judgment, the defendant has challenged the validity of the plaintiff’s copyright, contending that the numbering system has been placed in the public domain by its use without notice of copyright. There is no dispute over the fact that the code numbers have appeared in two аreas without such notice — in some of the plaintiff’s own catalogues, and in business documents of third party remanufacturers.
With respect to the first area, sincе the time that the first catalogue was published in 1948, eleven out of approximately forty of the plaintiff’s catalogues or supplements have failed tо contain the copyright notice. This apparently was due to oversight by the plaintiff.
With respect to the second area — third parties — remanufacturers of distributors have also used the plaintiff’s code numbers without any copyright notice in labeling their stock and printing price lists. Exhibits submitted by the defendant show price lists, inventоry lists, invoices, and box labels from various remanufacturing companies in the local area using the plaintiff’s code numbers to designate their products, all without any copyright notice. The plaintiff stated that she was aware that other re-manufacturers were using the code numbers in their businesses in this way, without including the notice of copyright. She admitted that, as the proprietor of Van Alen, she has printed price lists for remanufacturers using the code numbers without including copyright notices. In fact, the plaintiff is an employee of a local remanufacturer, named Margus, in addition to being the owner of the Van Alen catalogue business. Despite this dual capacity, she failed to place a notice of copyright on either the Margus price lists which she compiled and printed, or the Margus labels and invoices which she filled out.
Initially, the issue is whether 17 U.S.C. § 21 excuses the plaintiff’s failure to place the notice in every issue of her cataloguе. The essence of protecting a copyright is the copyright notice, and 17 U.S.C. § 10 provides that “such notice shall be affixed to each copy thereof published or offered for sale in the United States . .” However, in order to protect a proprietor who has sought to comply with the law, but, through accident or mistake, has omitted the notice from some copies, 17 U.S.C. § 21 provides:
“Where the copyright proprietor has sought to comply with the provisions оf this title with respect to notice, the omission by accident or mistake of the pre *1135 scribed notice from a particular copy or copies shаll not invalidate the copyright or prevent recovery for infringement against any person who, after actual notice of the copyright, begins an undertаking to infringe it, but shall prevent the recovery of damages against an innocent infringer who has been misled by the omission of the notice . . . .”
In this case, the defendant clearly had actual notice of the copyright, inasmuch as it sought authorization from the plaintiff in 1974. Thus the question is whether the plaintiff is entitled to the protectiоn of section 21.
Section 21 does not excuse a complete omission of the copyright notice, but only an omission on “a particular copy or copies.” Although the courts have not established a maximum percentage or figure, the typical situation would be where, through a manufacturing error, a small percentage of goods lacked the copyright notice.
E. g., United Merchants and Mfrs. v. Sarne Co.,
With respect to publications, however, an omission from one issue of the publication of a work has been held not to come within the protection of section 21.
National Comics Publications v. Fawcett Publications,
Accordingly, section 21 is inapplicable to this case where the omission was from entire issues of the plaintiff’s catalogues.
The defendant also argues that the plaintiff’s copyright is no longer vаlid because of widespread use of the code system throughout the industry without any copyright notice. This is essentially a contention of abandonment of the copyright. As set out in National Comics Publications v. Fawcett Publications, supra, abandonment occurs when the proprietor engages in some overt act which manifests his purpose to surrender his rights and to allow the public to copy his work.
In this case, the plaintiff’s actions, as hereinabove set forth, are not disрuted; the only argument is over her intent. The question is whether the plaintiff’s consent to industrial use of the code numbers without notice of copyright can be deemеd an abandonment of the copyright, cognizable in a motion for summary judgment. In a similar case,
Rexnord, Inc. v. Modern Handling Systems, Inc.,
Accordingly, judgment for the defendant is being filed contemporaneously herewith.