MEMORANDUM & ORDER Plaintiffs SMS Group Inc. (“SMS”), an online merchant of bottles and pump dispensers, and its president, Vyacheslav Podlubny, bring this copyright infringement and unfair competition action against Pharmaaid Corp. (“Pharmaaid”), which also sells pump dispensers online. Plaintiffs assert that Pharmaaid has infringed on their copyrighted photographs, each depicting part or whole of SMS’s pump dispensers, by including them on Pharmaaid’s Amazon webpage and product packaging. Plaintiffs moved for preliminary injunctive relief on the copyright infringement claim. After denying their request for a temporary restraining order, the Court held oral argument on Plaintiffs’ motion for a preliminary injunction. As set forth below, the motion is denied because Plaintiffs have not shown a reasonable likelihood of success on the merits. I. Background1 SMS owns and operates several online stores, including one on Amazon, that sell various bottles and pump dispensers. Compl. 11, ECF No. 1. One such product is a “Universal Shampoo/Conditioner Pump” dispenser for one-liter bottles. Id. 12. To advertise this product, SMS obtained “professional photographs” and uploaded them to their Amazon store in April 2021. Id. 13. After their publication on SMS’s Amazon store, Podlubny registered two photographs with the United States Copyright Office under Registration Numbers VAu 001431086 (“’086 Copyright”), and VAu 001490123 (“’123 Copyright”). Id. 15; Compl. Ex. C (“Pl. Copyright Registrations”), ECF No. 1-4. Each photograph depicts two pump dispensers against a white background. Compl. 16; see Compl. Ex. B (“Images of Pl. copyrighted photographs”), ECF No. 1-3. In the ’086 Copyright, the dispensers are oriented vertically and shown in side profile, with the pump heads in a compressed position and facing to the right; the length of the pump tube is also visible. The ’123 Copyright depicts enlarged images of the top part of the dispensers, with only a small portion of the tube visible. One pump head is in a compressed position and appears at a forty-five degree angle to the right, while the other is in a released position and appears at a forty-five degree angle to the left. Plaintiffs allege that Pharmaaid, which also operates an online store on Amazon, began selling “an identical product, called ‘Replacement Pumps for 1 Liter (33.8oz) Bottles’” in December 2022. Compl. 19. To sell and advertise this product, Plaintiffs allege, Pharmaaid copied the copyrighted photographs without authorization, posting them on its own Amazon store and using them on product packaging for three different products. Id.
