Tabberone is pronounced tab ber won not tay ber own

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This information is taken directly from the court opinion. It is not taken out of context nor is it altered.

From Folio Impressions, Inc. v. Byer California, 937 F.2d 759 (2d Cir. 1991)

[page 765] If copying is established then the second step--that of showing unlawful appropriation--is reached. See Walker, 784 F.2d at 51. This test for illicit copying to prove infringement of another's copyright demands that the similarities relate to protectible material; the test asks whether "the ordinary observer, unless he set out to detect the disparities, would be disposed to overlook them, and regard their aesthetic appeal as the same." Peter Pan Fabrics, Inc., 274 F.2d at 489; see Walker, 784 F.2d at 51. Of course, the ordinary observer would compare the finished product that the fabric designs were intended to grace (women's dresses), and would be inclined to view the entire dress--consisting of protectible and unprotectible elements--as one [page 766] whole. Here, since only some of the design enjoys copyright protection, the observer's inspection must be more discerning.