IP Law Daily, COPYRIGHT—S.D.N.Y.: Preliminary injunction granted in online retailers’ copyright dispute over Aztec-style whistles, (Feb 23, 2026)

By Saurabh Kashyap, B.A., M.A., LL.B., LL.M.

Ongoing lost sales, market confusion, and reputational harm, coupled with a likely showing of copyright infringement, warranted preliminary injunctive relief.

A federal district court in New York granted an online retailer’s motion for a preliminary injunction against a competing whistle seller, finding that the retailer was likely to succeed on its copyright infringement claim and that ongoing lost sales, market confusion, and reputational harm constituted irreparable injury warranting immediate relief. The court also denied the competing whistle seller’s motion to dismiss the copyright claim, concluding that the registered Aztec-style whistle design plausibly satisfied the minimal originality requirement and adequately alleged substantial similarity. However, it dismissed the retailer’s state-law unfair competition claim, holding that it was preempted by the Copyright Act because it sought to enforce rights equivalent to those protected under federal copyright law (Broad Brook Ventures LLC v. DW Russell LLC, No. 1:25-cv-00893-DEH (S.D.N.Y. Feb. 19, 2026)).

Background. The plaintiff, Broad Brook Ventures LLC, designs and sells consumer products through online marketplaces, including Amazon. It developed and marketed an Aztec “war” or “death” whistle inspired by artifacts attributed to the ancient Aztec civilization. The defendant, DW Russell LLC, does business as Pacific Reef Spearfishing and similarly sells products through Amazon, Walmart, and eBay. The parties compete in the same online retail space and target similar consumers.

Broad Brook registered a copyright in its whistle design on April 27, 2022, and attached the certificate of registration to its complaint. It alleged that it invested nearly ten months in product design and market research and that it had sold approximately 28,000 units, generating over $1 million in revenue before the dispute arose. According to the complaint, DW Russell began selling “Aztec Death Whistles” in July 2024 that were substantially similar to Broad Brook’s product. The court’s opinion included side-by-side photographic comparisons of the parties’ whistles, depicting skull-shaped designs with feathered headdresses and similar sculptural features.

Broad Brook filed suit on January 30, 2025, asserting copyright infringement under 17 U.S.C. § 501 and unfair competition under New York law. It simultaneously sought a temporary restraining order and preliminary injunction barring further sales of the products. The court initially entered a temporary restraining order, which it later extended by consent. DW Russell moved to dismiss under Rule 12(b)(6), arguing primarily that the whistle lacked originality because similar “Aztec death whistles” existed in the public domain.

Copyright infringement. To state a claim for infringement, a plaintiff must allege ownership of a valid copyright, and the copying of original elements. Citing Abdin v. CBS Broadcasting Inc., 971 F.3d 57 (2d Cir. 2020), and Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991), the court held that Broad Brook adequately pleaded both elements. The registration certificate constituted prima facie evidence of ownership, consistent with Hamil America, Inc. v. GFI, 193 F.3d 92 (2d Cir. 1999).

On copying, the court relied on Williams v. Crichton, 84 F.3d 581 (2d Cir. 1996), noting that a plaintiff may establish copying by demonstrating access and substantial similarity. The court found that the public online availability of the product supported access, and that the side-by-side comparison plausibly showed that an “average lay observer” would recognize the appropriation of the protected design.

Addressing originality, the court emphasized that copyright requires only a minimal degree of creativity. Quoting Folio Impressions, Inc. v. Byer California, 937 F.2d 759 (2d Cir. 1991), the court reiterated that “an unmistakable dash of originality” suffices. Although DW Russell pointed to a prior whistle created by a Native American artist, the court found discernible aesthetic differences between that earlier design and Broad Brook’s whistle. The court therefore denied the motion to dismiss the copyright claim.

Unfair competition. The court dismissed the New York unfair competition claim as preempted. Under Telecom International America, Ltd. v. AT&T Corp., 280 F.3d 175 (2d Cir. 2001), unfair competition requires misappropriation through fraud or deception. However, where such a claim merely duplicates a copyright theory, it is preempted by federal law. Citing Bytemark, Inc. v. Xerox Corp., 342 F. Supp. 3d 496 (S.D.N.Y. 2018), the court held that Broad Brook’s state-law claim sought only to protect rights equivalent to those under the Copyright Act and therefore could not proceed.

Preliminary injunction. Applying the four-factor framework set forth in Salinger v. Colting, 607 F.3d 68 (2d Cir. 2010), the court found that Broad Brook satisfied each requirement.

On the likelihood of success, the court concluded that the plaintiff had demonstrated a prima facie case of infringement supported by its registration certificate and photographic evidence. On irreparable harm, the court declined to presume injury, but credited evidence of lost sales, market share erosion, and reputational harm stemming from negative reviews allegedly attributable to inferior copies. Citing Celsis In Vitro, Inc. v. CellzDirect, Inc., 664 F.3d 922 (Fed. Cir. 2012), and Presidio Components, Inc. v. American Technical Ceramics Corp., 702 F.3d 1351 (Fed. Cir. 2012), the court observed that price erosion, loss of goodwill, and damage to reputation constitute irreparable injury.

The court further determined that the balance of equities favored Broad Brook because DW Russell articulated no substantial countervailing hardship. Finally, echoing Apple Inc. v. Samsung Electronics Co., 809 F.3d 633 (Fed. Cir. 2015), the court held that the public interest generally favors protecting intellectual property rights in the absence of countervailing considerations.

Conclusion. Finally, the court granted DW Russell’s motion to dismiss as to the unfair competition claim, denied it as to copyright infringement, and granted Broad Brook’s motion for a preliminary injunction. It directed the parties to meet, confer, and submit a proposed order granting preliminary relief consistent with the court’s ruling and a proposed case management plan within fourteen days.

The Case is No. 1:25-cv-00893-DEH.

Judge: Ho, D.

Attorneys: Wing Keung Chiu (Mestechkin Law Group PC) for Broad Brook Ventures LLC. Jillian Tattersall (Joseph & Norinsberg, LLC) for DW Russell LLC d/b/a Pacific Reef Spearfishing.

Companies: Broad Brook Ventures LLC; DW Russell LLC d/b/a Pacific Reef Spearfishing

Cases: Copyright TechnologyInternet NewYorkNews