![]() Thomas McCarthy, McCarthy on Trademarks and Unfair Competition, § 31.04 (3d ed. See Sara Lee, 81 F.3d at 461 ("n consideration of the public interest, estoppel by laches may not be invoked to deny injunctive relief if it is apparent that the infringing use is likely to cause confusion" (citing 4 J. Inherently, such conduct cannot be so remote in time as to justify the application of the doctrine of laches. A prospective injunction is entered only on the basis of current, ongoing conduct that threatens future harm. But if the claim is one for injunctive relief, laches would not apply. When federal courts, in the exercise of their equitable power, consider laches, they are guided by the limitations period that they would borrow for actions at law and presume that if an equitable claim is brought within the limitations period, it will not be barred by laches. But, of course, the doctrine of laches may be applied to equitable claims brought under the Lanham Act, which contains no express limitations provision.But when it is clear that the work is intended for a more particular audience, the court's inquiry must be focused upon the perspectives of the persons who comprise that group. In most cases, when a copyrighted work will be directed at the public in general, the court need only apply a general public formulation to the intended audience test. This ordinary observer is to be a member of "the intended audience of the plaintiff's work." Id. The notion of intrinsic similarity can be a slippery one because it requires the court to inquire into "the `total concept and feel' of the works," but only as seen through the eyes of the ordinary observer. And second, the court must ask whether the works are "intrinsically similar" in the sense that they express those ideas in a substantially similar manner from the perspective of the intended audience of the work. First, the court must determine whether the two works are "extrinsically similar because they contain substantially similar ideas that are subject to copyright protection." Id. Proof of substantial similarity requires resort to yet another two-part analysis. When the plaintiff possesses no direct evidence that the defendant copied its protected work, it may create a presumption of copying by indirect evidence establishing that the defendant had access to the copyrighted work and that the defendant's work is "substantially similar" to the protected material. ![]() To establish a claim for copyright infringement, a plaintiff must prove that it owned a valid copyright and that the defendant copied the original elements of that copyright.
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