Brackett argued that Brett Toland — himself originally a Southerner from Tennessee — had been inspired by the same hymn and had suggested the idea for a cross-eyed bear to Lainie while she was still working for Toyland under an employment agreement that specified any fruits of her labor would become the sole and exclusive property of the company. Brackett contended that it was Toland himself who’d requested Lainie to sketch a cross-eyed bear for him, and she had delivered those sketches in September of last year, three months before she’d given the company notice. The bear he planned to test-market this Christmas was called Gladys the Cross-Eyed Bear because he hoped to capture a market not exclusively limited to Christians familiar with the hymn. The glasses on his bear made use of neither corrective lenses nor mirrors but were instead clear plastic lenses behind which uncrossed eyes had been painted. It was Brackett’s argument that Lainie had also designed these glasses for Toland, and that the more sophisticated design she’d later purchased from Nettleton was merely an improvement on Toland’s original idea.
He Stole It.
She Stole It.
That’s what it got down to.
Warren knew the names of most people in Newtown she would have to contact, but he didn’t see any of them in her address book. Maybe she was going someplace other than Newtown, maybe she figured she’d be too conspicuous down there, pretty white blond woman in the black section of Calusa. Maybe she knew someplace else to go for what she needed, if she needed it, but maybe he was wrong. He kept leafing through the book leisurely, didn’t want to miss any familiar name, but there was nobody there he could identify, so far she looked clean as a newborn babe. He closed the book. Looked around the room again.
She wasn’t expecting anybody to come in here and toss the place, so she’d have had no need to go stashing anything in ridiculous places like the inside of a lampshade or the underside of a toilet tank lid. Just her and her secret, if there was a secret, maybe he was wrong, maybe there was nothing here at all. He’d be the first to admit it, run out and buy them both a big dinner at the best restaurant in town. But he knew the signs.
Only place he hadn’t yet checked was the bathroom.
Santos was telling us that it was not the Court’s obligation to determine whether Dr. Nettleton had stolen his eyeglass design from the Optics and Lenses article. Which, by the way, he didn’t think had happened.
“In fact, I find that argument entirely specious,” he said, “and I’m rejecting it summarily. Rather, the duty of this Court is to determine whether the bear Toyland calls ‘Gladys’ is a copy of the bear Commins calls ‘Gladly’ and therefore an infringement of copyright. The Court must further determine whether the similar though not identical names of the two bears might cause confusion in the marketplace and therefore be an infringement of trademark. And last, as to the third count, the Court must consider whether the design features of the Commins bear are inherently distinctive or at least have secondary meaning among purchasers, in which case the bear may be granted trade dress protection. This is not a simple case,” he said, and sighed heavily. “I know, I know. This is already the middle of September, and Christmas is right around the corner. Ms. Commins has had feelers from two major toy companies, and Mr. and Mrs. Toland are eager to put their bear into production at once.
“But...”
And here he sighed again, and clasped his hands together as if building with his fingers a Here’s-the-Church-and-Here’s-the-Steeple edifice, resting his chin on the entrance door formed by his thumbs, peering out over them.
“I must give this serious thought,” he said. “Before I enjoin Mr. and Mrs. Toland from producing and selling their bear, I need to be certain in my own mind that what Ms. Commins charges in her complaint is absolutely unassailable. I ask you all to be patient. I’ll try to give you my decision by the end of next week. That would be...” He looked down at his open calendar. “The twenty-second. Failing that, and in accordance with federal law, I could extend another ten days. I can certainly promise a decision before then. In fact, let’s say no later than the twenty-ninth. Until then, the TRO will remain in effect. Are there any questions? Then let’s adjourn.”
Had to be a bathroom behind that closed door across the room. Warren left her address book open to the page it had been turned to, got up, pushed the chair back under the table again, and went to the closed door.
No surprises, no dead body in the bathtub or hanging from the shower head or sitting on the toilet bowl with a knife in his heart. Nothing like that. Thong panties drying over the shower rod, two of them white, the third one yellow, now he knew what she wore under her skirt. No bras in evidence. Twisted tube of toothpaste on the sink, at least she was still brushing her teeth and rinsing out her smalls. Force of habit, he took the box of Kleenex off the toilet tank lid, placed it on the sink to his right, lifted the lid, peeked into the tank, turned the lid over to see if anything was taped to it, put it back in place again, and put the box of Kleenex back onto it.
He opened the medicine cabinet.
Usual array of headache remedies ranging from aspirin to Advil to Tylenol to Bufferin. Bottles and tubes of sunscreen and lotion. Some prescription drugs in little brown plastic bottles with white lids. Several packages of tampons and maxi-pads. A few boxes of cold tablets and allergy tablets. A toothbrush in an unopened cardboard and cellophane container. A bottle of Pepto-Bismol. An empty DialPak dispenser. A toenail clipper. An open packet of dental floss. Several jars of moisturizers and mud. Nothing he was looking for. He closed the mirrored door. Opened the wooden door on the cabinet under the sink. Toilet-bowl brush. Wrapped bars of Palmolive soap; he visualized her showering. Wrapped rolls of toilet paper. An unopened box of Kleenex. A can of Lysol. He closed the door.
Pale blue shag rug in front of the toilet bowl. Matching blue plastic trash basket wedged into the narrow space between the sink cabinet and the bowl. He looked into the basket. Crumpled, lipstick-stained wads of Kleenex. Cellophane wrapper from a tampon. Wrapper from a stick of Wrigley spearmint chewing gum. Several soggy Q-Tips. He picked up the basket, rested it on the sink. Dug under the debris.
Bingo.
“He’s going to decide in their favor, I know it,” Lainie said.
We were eating a late lunch in a delicatessen near the courthouse. The place called itself the New Yorker, though the knishes and the hot dogs tasted as if they’d been made in Korea. Even the mustard was all wrong, a bright yellow stuff that lacked the bite of the grainy brownish blend my partner Frank insisted was essential to a true kosher frank. And besides, you had to pay an additional fifty cents for sauerkraut, which Frank said was outrageous. I wished Frank were here with us right this minute. Frank had a way of explaining law that made him sound like a justice of the Supreme Court. Frank was a comfort to distraught clients. On the other hand...
“I just think he needs more time,” I said.
“Why?”
“Because this isn’t a decision he can make lightly. He gave us fair warning right up front. Remember what he said?”
“What did he say?”
“He said, ‘The Court does not intend to be rushed into any decision.’ Those were his exact words. He’s aware of how much is hanging in the balance. For both sides.”