Full opinion text
MEMORANDUM and ORDER PRATTER, District Judge. I. Background, Procedural History and Summary Decision This matter concerns the alleged copyright infringement of a label used on pesticide products. The immediate issue involves a request for a preliminary injunction. A hearing having been held and briefs having been submitted, the Court will issue the preliminary injunction for the reasons and upon the terms discussed below. Plaintiff FMC Corporation (“FMC”) is headquartered in Philadelphia, Pennsylvania, and holds itself out to be “one of the world’s foremost, diversified chemical companies with leading positions in agricultural, industrial and consumer markets.” Defendant Control Solutions, Inc. (“CSI”), a producer of generic pesticide products, located in Pasadena, Texas, employs approximately 45 people and competes with FMC and others in the distribution of pesticides. The specialty products division at FMC, the division responsible for the TalstarOne pesticide/termiticide has a comparable number of employees to CSI. See 4/21/05 Hr. TV. at 8. Plaintiff FMC develops, manufactures, markets and distributes pest control products for professional and home use. CSI’s business is to manufacture and market pesticide products containing generic active ingredients. 4/22/05 Hr. Tr. at 96. FMC alleges that CSI is willfully violating FMC’s copyright on the TalstarOne pesticide product label and seeks to enjoin CSI from selling its generic Bifen I/T pesticide using an allegedly infringing product label. Pesticide product labels are heavily regulated by the United States Environmental Protection Agency (the “EPA”) pursuant to the Federal Insecticide Fungicide and Rodenticide Act (“FIFRA”), 7 U.S.C. §§ 136, et seq. Consistent with FIFRA, the process by which regulated pesticide products are registered for sale in the United States involves submission and approval of detailed product labels, typically in booklet or pamphlet form, providing specifically mandated information about hazards and directions for use, including identification of the pests to which the pesticides are directed and the application and mixing rates of the pesticides for a wide variety of uses. Portions of the Tal-starOne pesticide product label that FMC claims CSI is infringing were composed by FMC in conformity with specific legal and regulatory standards and guidelines. These standards and guidelines were established by Congress and the EPA as requirements for registering pesticide products for sale. CSI began distributing a generic brand of pesticide containing bifenthrin, Bifen I/T, more than five years after FMC’s patent on bifenthrin expired. Bifen I/T contains the exact ingredients, in the identical proportions as, and is thus functionally equivalent to, FMC’s TalstarOne product. CSI’s Bifén I/T label was prepared and submitted to the EPA as part of, in EPA parlance (or, as familiarly termed by the witnesses, “EPA speak”), a “me-too” submission. In fact, Mr. Joe Blake, CSI’s Director for Regulatory Affairs, initially represented to the EPA that the Bifen I/T product would be not only a me-too submission but also a “re-pack” of Talstar.TC Flowable, the immediate predecessor product to TalstarOne. A re-pack registration with the EPA generally takes less time and requires less information in order to secure EPA approval. See 4122/05 Hr. Tr. at 116-118. However, FMC claims it never sold any Talstar product to CSI. Thus, if FMC’s claim on this point is accurate, it is impossible that CSI could have submitted a re-pack of the FMC product. With regard to alleged copyright infringement by CSI of FMC’s TalstarOne product label, FMC delivered a cease and desist letter to CSI’s chief executive officer on March 4, 2005. FMC received no response until March 28, 2005, when CSI announced that it had retained counsel and rejected FMC’s claims of copyright infringement. Therefore, FMC contends that as of March 4, 2005, CSI’s alleged copyright violation is willful and knowing. Moreover, FMC contends that without immediate injunctive action, CSI will continue to illegally profit from FMC’s copyrighted and proprietary property, including by granting sub-registration rights to two other companies, Phoenix Environmental Care LLC (“Phoenix”) and Regal Chemical (“Regal”), to use a label substantially similar to the label CSI copied from FMC. See 4/22/05 Hr. Tr. at 118-120. FMC filed its Complaint (Docket No. 1) and, pursuant to Fed.R.Civ.P. 65, its Motion for Temporary Restraining Order and Rule to Show Cause Why a Preliminary Injunction Should Not Issue (Docket No. 3) and Motion for Expedited Discovery, alleging that CSI deliberately appropriated FMC’s copyrighted product label for TalstarOne™ Multi-Insecticide, for CSI’s Bifen/IT product rather than incurring the expense of independently developing a label of its own. At this stage in the litigation, namely, assessing whether a preliminary injunction should issue, the Court is to decide whether CSI’s admittedly virtually verbatim copying of FMC’s product label violates federal copyright law and justifies the entry of preliminary injunctive relief. Following a phone conference with the parties, the Court denied the Motion for Temporary Restraining Order, granted expedited discovery for both parties, scheduled an intermediate conference call to monitor the expedited discovery, established a supplemental briefing schedule and scheduled an evidentiary hearing and oral argument on the request for a preliminary injunction. The evidentiary hearing and oral argument was held on April 21 and 22, 2005. FMC seeks a preliminary injunction ordering CSI, and anyone or any entity acting in concert with CSI, to: (1) stop manufacturing the infringing label or causing the label to be manufactured; (2) halt using the infringing label; (3) stop placing any product that has the infringing label affixed to it into the stream of commerce; (4) recall all products bearing the infringing label that are not already in the hands of an end user; (5) destroy all existing infringing labels; and (6) immediately provide all of Bifen I/T’s distributors, customers and sub-registrants with a copy of the preliminary injunction order. For the reasons stated below, the Court finds that CSI is willfully violating FMC’s copyright to the TalstarOne product label and, as a result, is knowingly and willfully selling its Bifen I/T product with an infringing product label. CSI is also knowingly and willingly assisting other generic manufacturers to label their respective bifenthrin-based products with a similarly infringing label. Therefore, for the reasons detailed below, consistent with FMC’s relief request, supra, save subpart (4) and a portion of subpart (6), the Court issues a preliminary injunction to prevent further sales or facilitation of sales of any product utilizing a product label that has been approved by the EPA (or is currently within the EPA review process) based upon a me-too submission by CSI that consists of a product label based on the virtually verbatim copying of the TalstarOne label. The Court also requires that FMC post a $100,000 bond in accordance with Fed. R.CivJP. 65(c). A trial on the merits of the claims and defenses will follow promptly. II. Factual Background A. Development of Bifenthrin Products More than 20 years ago, FMC developed bifenthrin, a chemical that eradicates insects, including termites and other pests. See Declaration of Linda Froelich (“Froe-lich Deck”) ¶ 4. FMC obtained a patent protecting bifenthrin and later registered its technical formulation and end-use products with the EPA and state pesticide regulatory authorities. Froelich Decl. ¶ 5. Several of the FMC end-use product registrations are on pesticide products commonly sold to distributors for use by professional exterminators, landscapers and other pest management professionals. Id. By December 9, 1997, FMC’s patent on bifenthrin had expired, permitting its manufacture, use, and sale by producers of generic pesticides. Froelich Deck ¶ 6. CSI is such a producer of generic pesticides. In August 2003, FMC introduced Tal-starOne, in which bifenthrin is the active ingredient. TalstarOne is the successor product to a number of FMC’s prior pesticide products. Froelich Deck ¶ 7. Talstar-One is a multi-insecticide used to control many pests indoors and outdoors in residential, institutional, public, commercial and industrial buildings, and on lawns, ornamental plants, parks, recreational areas and athletic fields. Id. FMC contends that TalstarOne, distributed throughout the United States, is one of FMC’s most successful products. Froelich Deck ¶ 8. FMC further contends that TalstarOne is considered to be a premier insecticide for use by pest management professionals in the United States. Froelich Deck ¶ 9. FMC became aware of CSI’s marketing efforts for CSI’s Bifen I/T in late 2003 and early 2004. However, FMC did not attempt to assess whether CSI was violating FMC’s copyright on the TalstarOne label until November 2004. After completing a comprehensive comparison of the CSI label against its own TalstarOne label, FMC concluded that the CSI label was a virtually identical copy of the FMC label and sent a cease and desist letter to CSI in early March 2005 alleging that CSI was violating the copyright on the TalstarOne label. CSI never inquired of FMC whether it could buy or license the rights to use or copy the TalstarOne label. 4/21/05 Hr. Tr. at 128. FMC has also sent other cease and desist letters to other competitors which FMC claims are also in violation of FMC’s copyright. Neither FMC nor CSI has endeavored to notify either of CSI’s two sub-registrants with .regard to FMC’s attempt to enforce its purported copyright to the TalstarOne label. B. The TalstarOne Label Before marketing TalstarOne in 2003, FMC contends that it engaged in “a long and arduous process” of drafting the detailed label. Froelich Decl. ¶ 10. Pesticide labels do not consist of a mere list of ingredients. Froelich Decl. ¶ 11. Instead, they comprise multi-page pamphlets describing product uses, instructions for use and required warnings. Id. These pamphlets typically are attached to the product container. .Id. For example, the Talstar-One label contains 16 pages of small type in booklet form. Froelich Deck ¶ 13; Tal-starOne Label .(2004) (Pl.Ex.- A to Motion for TRO). This label contains specific and detailed directions for* use, directions for storage and disposal, information about application rates, precautionary statements and narrative text describing first-aid instructions and environmental, physical and chemical hazards. Id. FMC' contends that ■the process of creating a pesticide label involves “creativity, time and money” and, for a label such as TalstarOne, is the result of “many years of careful product development and stewardship,” as reflected by the particular words and phrases FMC uses on the label. See Froelich Decl. ¶ 12. C. FMC’s Process of Creating the TalstarOne Label The TalstarOne label is based upon copyrighted labels for other FMC products that are no longer on the market. See Froelich Decl. ¶ 14. The labels for the other products were created in 1992 and 1996. Id. Thereafter, the FMC labels were subject to significant review and revision, a process that FMC contends culminated in the TalstarOne label in its current form. See Froelich Decl. ¶ 15. More than two years ago, FMC decided to revise the information on its labels to produce the TalstarOne label. Froelich Decl. ¶ 16. That process began with FMC’s field representatives who determined recommended uses for the product. Id. To redraft the label, FMC claims that it relied upon conference calls and product management team meetings. In-house field representatives discussed use rates and patterns for the new TalstarOne product. Id. After the field personnel prepared an initial draft of the TalstarOne label, FMC alleges that the label was sent to in-house marketing personnel for input. Froelich Decl. ¶ 17. The label also was sent to in-house product developers, who reviewed the draft label and provided comments. Id. Pesticide manufacturers must follow the product label guidelines promulgated by the EPA, and FMC contends that its TalstarOne label complies with EPA requirements. Id. Before its final release, the FMC product development department re-reviewed the label for accuracy, the FMC registrations department assured that it adhered to the applicable EPA requirements, and the FMC marketing department finalized the language. Id. Following the three-month in-house creation and review process, the TalstarOne label was sent to the EPA for review and approval in June 2003. Id. It took the EPA more than a month to approve the label. Froelich Decl. ¶ 19. After the EPA’s final approval, the TalstarOne product label was subjected to an additional month of in-house review before FMC made its final determination that it was ready for use in product packaging. Id. As a result, FMC estimates that it spent more than 13 years and nearly $400,000 in the process of developing the current version of its TalstarOne label. Froelich Decl. ¶ 20; see also, TalstarOne label (2003) (Pl.Ex. B to Motion for TRO). The label was revised in 2004 to add directions for using certain containers and information about resistance that some insects may develop to the insecticide/termiticide. Froelich Decl. ¶ 21. Since the time of the product launch, FMC claims that it has spent more than $1 million promoting Tal-starOne. Froelich Decl. ¶ 22. D. FMC Registers the Copyright for each TalstarOne Label FMC only recently filed its copyright registration for the TalstarOne Multi-In-secticide (2004) and TalstarOne Multi-In-secticide (2003) product labels. Froelich Decl. ¶ 23; Copyright Registration Certificates (PLEx. C and D to TRO). The registration certificates state that FMC’s copyrighted label for TalstarOne was first published on July 1, 2003. Id. E. CSI Copied and Refused to Stop Using the Infringing Label CSI has made no evidentiary showing, and has not yet succeeded in undermining the material features of Ms. Froelich’s testimony, to contradict FMC’s version of the facts which is summarized as follows. In December 2003 FMC learned that CSI planned to compete in the market for bifenthrin-based products. See 4/21/05 Hr. Tr. at 96. By March 2004 FMC had received a version of the CSI label which FMC wanted in order to evaluate the merit of requiring CSI to compensate FMC for the data that FMC had compiled for its prior submissions to the EPA and upon which CSI would necessarily rely for its me-too registration of the competing product, Bifen I/T. See 4/21/05 Hr. Tr. at 96-98; 4/22/05 Hr. Tr. at 193-96. Data compensation agreements are not uncommon in the industry. See 4/21/05 Hr. Tr. at 79-83. FMC launched an in-house investigation in November 2004 to determine the extent of CSI’s copyright infringement. Froelich Decl. ¶ 25. By February 2005, FMC completed a word-by-word comparison of the TalstarOne and Bifen I/T labels. Froelich Decl. ¶ 26. As a result, FMC concluded that the two labels were virtually identical. Froelich Decl. ¶¶ 26, 28. Rather than spending the necessary time and money to compose and develop its own label for Bifen I/T, it appeared to FMC that CSI literally copied the TalstarOne product label. Froelich Decl. ¶28. In fact, CSI admits copying the FMC label, nearly word-for-word. See Oral Deposition of Joe Blake, April 19, 2005 (hereafter “Blake Dep.”), at 25-31. The only material difference between the labels for Bifen I/T and TalstarOne is the product name used on the label. Id.; see also, Bifen I/T color-coded label (Ex. E to Motion for TRO); TalstarOne label (Ex. A to Motion for TRO). During the hearing on the motion for preliminary injunction, Mr. Blake testified that CSI s business actually is premised on copying products and their labels: 4 [Ms. Fletman:] Were you responsible for the [Bifen I/T]label that is the 5 subject of this proceeding? 6 [Mr. Blake:] I was. 7 Q And how did you prepare that label? 8 A I copied the content of the other label in the 9 marketplace, in this case the Talstar TC label and copied the 10 content and submitted that to EPA as my label. 4/22/05 Hr. Tr. at 97 (emphasis added). It took Mr. Blake no more than 10 minutes to make the necessary changes to the Talstar label: 7 Q ... you went to the EPA Website, you found the label 9 of a product that Control Solutions already wanted to sell, 10 and you used that language exactly except for the name of 11 your product? 12 A And the warranty statement on the— 13 Q And the warranty statement? 14A Right. 15 Q Okay. So your testimony is that you changed the name and 16 the warranty statement? 17 A Yes, ma’am. 18 Q And then you took that and you submitted it to the EPA? 19 A Yes, ma’am. 20 Q And in fact either you or someone at your direction sat 21 and typed word-for-word from one document to the other, 22 changing only the name and the warranty statement? 23 A Yes, ma’am. 24 Q How long did it take you to make those changes from the 25 Talstar label into the [Bifen I/T] label? 1 A Minutes. 7 Q Ten minutes, 15 minutes? 8 A Ten minutes sounds fine. 4/22/05 Hr. Tr. at 107 (emphasis added). Although, Mr. Blake initially suggested that he thought that verbatim copying was required by the EPA, his testimony at the hearing drew back on that point: 15 Q But it is the Talstar TC Flowable label that you copied? 16 A Yes. 17 Q Now, the reason you copied the label, as I understand it 18 from your testimony today, was ... “that’s the way I do all my 20 labels that are me-too labels”— 21 A Yes. 22 Q — did I correctly state what your answer was today? 23 A Yes. 16 Q Let me direct you, please, to Page 29 [of your deposition]. And I asked you, 17 on Line 21, “Why did you copy the label?” 18 And you answered, “In order for me to get a me-too 19 registration and expedited review, that is essentially what I 20 am required to do.” 5 Q So, you copied the label so you could get a me-too 6 registration from EPA? 7 A Yes. 8 Q You copied the label so you could get an expedited 9 review, is that right? 10 A Yes. 11 Q And you copied the label because you believed that you 12 were somehow required to do so, is that correct? 13 A I use the word required, but the way I — that’s the way 14 —that’s my understanding of how I should do it. 15 Q Is it your understanding that EPA requires you to copy 16 the language of other labels to get a me-too registration? 17 A I don’t know about the word required, but that’s — it’s 18 my understanding in order to get a me-too registration for 19 expedited review that my label has to be substantially 20 similar or identical. So that I want the fastest review, so 21 I make it identical. 22 ■ Q And you want the fastest review because you want your 23 product to get on the marketplace as fast as possible? 24 A Yes. 25 Q You’re the one who’s responsible for label creation at 1 your company? 2 A Yes. 3 Q You’ve been responsible since 1998? 4 A Yes. 5 Q You were the only person who has ever had responsibility 6 for that function at Control Solutions? 7 A Yes. 13 Q And you’re the guy responsible for the label, yes? 14 A Yes, ma’am. 15 Q And you always copy the label except for the pieces that 16 we talked about before? 17 A Yes, ma’am. 18 Q Okay. And it’s fair to say that that’s the way that 19 Control Solutions does business? 20 A That’s my common practice, yes, ma’am. 4/22/05 Hr. Tr. at 108-110; 4/22/05 Hr. Tr. at 125. 7THE COURT: To your knowledge, has anyone with the 8 CSI organization endeavored to compose a label? 9 THE WITNESS: No. 4/22/05 Hr. Tr. at 136. Neither CSI nor Mr. Blake has ever attempted to submit to the EPA for expedited review for a me-too registration a substantially similar label (as opposed to a verbatim copy). Therefore, CSI has never had the occasion to learn whether, at a minimum, paraphrased language could be used to secure a me-too registration for that purpose: 13 [Ms. Fletman:] ... Am I correct that, as you sit here today, you don’t 14 know how EPA would react to a me-too registration where you 15 changed the label language from the underlying label? 22 A Yes, ma’am. 23 Q — you haven’t changed any language in a label from the 24 underlying product when you’ve submitted it to EPA, have you? 25 A Correct. 1 Q And so you have no personal experience with EPA 2 submitting labels with different language than the underlying 3 language, is that right? 4 A That’s correct. 5 Q And you told us that this is the common practice in the 6 industry, is that right? 7 A Yes. 8 Q So you haven’t talked to anyone else who has submitted a 9 me-too label that is different from the underlying label, is 10 that right? 11 A That’s right. 4/22/05 Hr. Tr. at 111-112. Finally, Mr. Blake candidly stated that he would not know how to redraft the Bifen I/T label to receive expedited review. See 4/22/05 Hr. Tr. at 103. 19 [Ms. Fletman:] Now, I just want to make sure that I understood you. Did 20 you say, Mr. Blake, that you didn’t know how you could 21 rewrite the [Bifen I/T] label to be different from the FMC 22 label and still get EPA approval, is that right? 23 A Yes, ma’am. Expedited review is what I was specifically 24 talking to. 25 Q Okay. Well, let me — do you know how you could rewrite 1 the [Bifen I/T] label and submit it for EPA approval and not 2 get expedited review? 3 A Yes, ma’am. I’m not sure if I could write it 4 substantially different. 5' Q Okay. Well ... 6 A Or I’ll say different enough. 7 Q Different enough? 8 A To satisfy the wishes of the opponent. 4/22/05 Hr. Tr. at 126-127 (emphasis added). However, FMC presented as evidence examples of labels that had been both redrafted and approved by the EPA, apparently with an expedited result. See generally, 4/22/05 Hr. Tr. at 127-33. As indicated above, on March 4, 2005, FMC delivered a cease and desist letter to CSI. Declaration of Kelly Dobbs Bunting (“Bunting Decl.”) ¶ 2 (Ex. J to Motion for TRO); Letter, dated March 3, 2005 (Ex. F to Motion for TRO). The letter informed CSI’s CEO Boyd that a comparison of the Bifen I/T and TalstarOne labels demonstrated that CSI had copied FMC’s label. See id. FMC advised Mr. Boyd that FMC’s label was copyrighted, demanded that CSI stop all further sales of the product using the infringing Bifen I/T label and requested that CSI provide to FMC a plan that would result in recall of all infringing product not already in the hands of an end-user. Id. CSI received the cease and desist letter. Bunting Decl. ¶ 3; Federal Express receipt (Ex. G to Motion for TRO). CSI did not respond within the 10-day time limit set forth in FMC’s cease and desist letter. Bunting Decl. ¶ 4. Thereafter, on March 28, 2005, CSI advised FMC it had hired counsel. Bunting Decl. ¶ 5. Counsel for CSI rejected FMC’s infringement claims concerning its copyrighted TalstarOne product label. Bunting Decl. ¶ 6. CSI continues to market Bifen I/T with the allegedly infringing label. Froelich Decl. ¶ 29. Moreover, CSI has granted two sub-registrations for the infringing Bifen I/T label. See, e.g., Press Release, dated March 26, 2005 (Ex. A to Froelich Decl.); (Ex. B to Froelich Decl.) (copy of the Firebird LCO label). The sub-registrant’s label is also nearly identical to FMC’s TalstarOne label. On April 5, 2005, FMC filed its Complaint alleging copyright infringement and false designation of origin. III. Legal Analysis FMC seeks a preliminary injunction to immediately enjoin CSI from continuing to duplicate FMC’s label, placing the infringing label in the stream of commerce and facilitating the sale of any product that utilizes an infringing label. As described above, CSI began distributing its generic brand of pesticide containing bifenthrin, Bifen I/T, more than five years after FMC’s patent on bifenth-rin expired. Bifen I/T contains the exact ingredients, in the identical proportions as, and is thus functionally equivalent to, FMC’s TalstarOne product. CSI’s Bifen I/T label was prepared and submitted to the EPA as part of a me-too submission. For an expedited review, the EPA requires that labels for me-too submissions contain significantly similar content as those labels for the existing registrations for products with identical ingredients and proportions on which the generic me-too products are based. CSI alleges that it is a common practice for those seeking registration of generic pesticide products to engage in essentially verbatim copying of the content of labels for earlier-registered proprietary (or counterpart) pesticides on which the generic product is based. CSI suggests that such outright copying is what EPA requests and expects in evaluating applications to register generic products for sale. CSI raises many affirmative defenses to FMC’s establishment of a prima facie case of copyright infringement. On the record established thus far, however, none of these affirmative defenses is so persuasive as to undermine what appears as FMC’s likely success with its claim. CSI contends that any label’s purpose, as dictated by the EPA, is purely functional. FMC counters that, while a portion of the label contains mandated facts and functional information, much of the label evidences independent creativity, including language, usage and layout consistent with assessments by FMC’s marketing department. Nonetheless, CSI argues that its copying of the label is protected by the fair use doctrine and, alternatively, that FMC may not receive the benefits of copyright protection because FMC’s claim of copyright infringement is nothing more than copyright misuse, that is, an attempt by FMC to inequitably and unlawfully extend its previous legal monopoly on a bifenthrin-based pesticide beyond the termination of the prior patent. Thus, CSI contends that FMC comes to this Court with unclean hands. However, no evidence exists within this record to raise the specter of any improper motive by FMC in its attempt to protect its legitimate legal rights or maintain equitable, lawful competition with regard to the protectible intellectual property contained within its product labels. In sum, at this time and on the present record, the Court finds that it is sufficiently likely that FMC will succeed on the merits of its claim and that the other necessary elements for issuance of a preliminary injunction are met. A. Standard of Review An injunction is an extraordinary measure, and this Court recognizes that judicial analysis of the issues presented here demand considerable seriousness of purpose. See U.S. v. Oakland Cannabis Buyers’ Co-op., 532 U.S. 483, 498, 121 S.Ct. 1711, 149 L.Ed.2d 722 (2001). In fact, the issues and arguments require that the Court proceed with an abundance of caution and look at no facts in isolation. The standards for issuing a preliminary injunction are the same as those for issuance of a temporary restraining order. Ride the Ducks, L.L.C. v. Duck Boat Tours, Inc., 2005 WL 670302 (E.D.Pa. Mar.21, 2005) (citing Bieros v. Police Chief Nicola, 857 F.Supp. 445, 446 (E.D.Pa. 1994)); see also, Nutrasweet Co. v. Vit-Mar Enterprises, Inc., 112 F.3d 689, 692-93 (3d Cir.1997). The party seeking a preliminary injunction in a copyright action must convince the Court that, on balance, the following factors, when applied to the facts and weighed in conjunction to each other, favor granting preliminary in-junctive relief: (1) the likelihood that the moving party will succeed on the merits; (2) the extent to which the moving party will suffer irreparable harm without injunctive relief; (3) the extent to which the nonmoving party will suffer irreparable harm if the injunction is issued; and (4) the public interest. See Video Pipeline, Inc. v. Buena Vista Home Entertainment, Inc., 342 F.3d 191(3d Cir.2003); Novartis Consumer Health, Inc. v. Johnson & Johnson-Merck Consumer Pharms. Co., 290 F.3d 578, 586 (3d Cir.2002) (citing Clean Ocean Action v. York, 57 F.3d 328, 331 (3d Cir.1995); Council of Alternative Political Parties v. Hooks, 121 F.3d 876, 879 (3d Cir.1997)); Impax Laboratories, Inc. v. Aventis Pharmaceuticals, Inc., 235 F.Supp.2d 390 (D.Del.2002); Merrill Lynch v. Napolitano, 85 F.Supp.2d 491, 496 (E.D.Pa.2000). A district court should attempt to “balance[ ] these four ... factors to determine if an injunction should issue.” Am. Civil Liberties Union of New Jersey v. Black Horse Pike Regional Bd. of Educ., 84 F.3d 1471, 1477 n. 2 (3d Cir.1996) (en banc). As explained below, in this case as presented by the parties thus far, each of these factors weighs in FMC’s favor. The Court of Appeals for the Third Circuit has recognized that "[i]t is not necessary that the moving party’s right to a final decision after trial be wholly without doubt; rather, the burden is on the party seeking [injunctive] relief to make a prima facie case showing a reasonable probability that it will prevail on the merits.” Oburn v. Shapp, 521 F.2d 142, 148 (3d Cir.1975); see also Acierno v. New Castle County, 40 F.3d 645, 653 (3d Cir.1994). “ ‘Reasonable’ probability is used in the opinions interchangeably with ‘substantial’ likelihood of success.” Gucci Am., Inc. v. Daffy’s, Inc., 2000 WL 1720738, at *7 (D.N.J. Nov. 14, 2000) (citing Instant Air Freight Co. v. C.F. Air Freight, Inc., 882 F.2d 797, 800 (3d Cir.1989)). “ ‘Probability of success’ implies that the moving party, usually the plaintiff, must have a very clear and strong case.” 5 J. Thomas McCarthy, McCarthy on Trademarks & Unfair Competition, 30:45 (4th ed.2004). After consideration of the evidence and governing case law, the Court concludes that FMC has such a “very clear and strong ease.” B. The Copyright Act of 1976, As Amended Copyright law protects “original works of authorship fixed in any tangible medium of expression.” 17 U.S.C. § 102. Subject to certain enumerated exceptions within the Copyright Act, copyright owners have the exclusive right to do and to authorize: (1) reproduction of the copyrighted work in copies; (2) prepare derivative works, and (3) distribute copies. 17 U.S.C. § 106. To establish a prima facie case of copyright infringement for preliminary injunction purposes, FMC needed to show that CSI’s wholesale copying of its label likely violates any provision of § 106. See 17 U.S.C. § 501(a), (b). The statute, in pertinent part, states: (a) Anyone who violates any of the exclusive rights of the copyright owner as provided by sections 106 through 122 ..., is an infringer of the copyright. (b) The legal or beneficial owner of an exclusive right under a copyright is entitled ... to institute an action for any infringement of that particular right committed while he or she is the owner of it. 17 U.S.C. § 501(a), (b). An established copyright prohibits unauthorized copying to the extent copies are, at a minimum, substantially similar to the copyrighted work. See Educational Testing Svcs. v. Katzman, 793 F.2d 533, 541 (3d Cir.1986). To prove copyright infringement pursuant to 17 U.S.C. § 501, the plaintiff must demonstrate two elements: (1) ownership of a copyright and (2) copying by the defendant. Dam Things from Denmark v. Russ Berrie & Co., Inc., 290 F.3d 548, 561 (3d Cir.2002); Whelan Associates, Inc. v. Jaslow Dental Lab., Inc., 797 F.2d 1222, 1231 (3d Cir.1986). The copying element is proven by demonstrating “not only that the defendant had access to a copyrighted work, but also that there are substantial similarities between the two works:” Id.See also, Ford Motor Co. v. Summit Motor Prods., Inc., 930 F.2d 277, 291 (3d Cir.1991) (“[cjopying is demonstrated when someone who has access to a copyrighted work uses material substantially similar to the copyrighted work in a manner which interferes with a right protected by 17 U.S.C. § 106.”) In this case, there is no dispute that CSI copied the FMC label. Verbatim copying is admitted. What is at issue, however, is CSI’s argument that for one reason or another, it was entitled to copy and use the FMC material with impunity. C. EPA Legislation and Regulations The Federal Insecticide, Fungicide and Rodenticide Act is the comprehensive statutory scheme which governs the registration of pesticide products manufactured or offered for sale in the United States. As a central part of the registration process, there are requirements governing the data that must be provided by original and subsequent applicants for pesticide registrations. See 7 U.S.C. § 136a(c)(2). Specific labeling requirements also must be satisfied. See 7 U.S.C. § 136p. The EPA is required to act “as expeditiously as possible” on any application for registration of a pesticide which proposes the initial or amended registration of an end-use pesticide that, if registered as proposed, would be identical or substantially similar in composition and labeling to a currently-registered pesticide identified in the application, or that would differ in composition and labeling from such currently-registered pesticide only in ways that would not significantly increase the risk of unreasonable adverse effects on the environment!!] See 7 U.S.C. § 136a(c)(3)(B)(i)(I). FIFRA identifies unlawful acts, including the sale of any pesticides not registered under its provisions and the use of any. pesticide “in a manner inconsistent with its labeling.” 7 U.S.C. § 136j(a)(l)(A) and (G). FIFRA establishes civil and criminal penalties for violations. 7 U.S.C. § 1361. The EPA is also authorized to prescribe regulations to carry out FIFRA’s provisions. 7 U.S.C. § 136w. Pursuant to that authority, the EPA has developed an extensive regulatory framework for the registration of pesticide products, including those regulations set forth in 40 C.F.R. §§ 152, et. seq. The EPA Label Review Manual (3d ed.2003) describes the review process for labels submitted by applicants and includes comprehensive instructions for agency review and approval of labels. The purpose of the registration and label review process is to “produce labels that are clear [and] correctly direct users in how to use the product.” 4/22/05 Hr. Tr. at 54; accord, i/22/05 Hr. Tr. at 157 (testimony by CSI’s expert, Mr; Sehatzow). The EPA Label Review Manual complements guidelines issued by the EPA that provide additional explanation regarding certain label requirements and the label review process. A product such as CSI’s Bifen I/T is referred to, in the vernacular of FIFRA guidance, as a me-too product. The EPA defines a me-too product as “an application for the registration of a pesticide product that is substantially similar or identical in its uses and formulation to products that are currently registered.” See “General Information on Applying for Registration of Pesticides in the United States.” EPA, August 1992, Glossary, G-16. With regard to me-too applications, the EPA is required to complete review of such applications within 90 days. 7 U.S.C. § 136a(c)(3)(B)(ii)(II). Furthermore, EPA Form 8570-1 (“Application for Pesticide Registration or Amendment”), which must be submitted by applicants for me-too registrations, contains the following required statement with respect to such expedited review: In accordance with FIFRA Section 3(c)(3)(B)(I), my product is similar or identical in composition and labeling to: [product number and name]. The EPA Label Review Manual, consistent with the EPA regulations, 40 C.F.R. § 156, sets forth specific requirements for language that must appear on an applicant’s label. For example, an applicant is required to list: (1) specific warning language based on the product’s toxicity; (2) the sites of application (i.e. crops); (3) the target pests; (4) the dosage rate associated with each site and pest; (5) the method of application; and (6) the frequency and timing of application. See 40 C.F.R. § 156.10(I). The basic directions for label review by the EPA undermine CSI’s contention that near-verbatim copying is necessary to achieve expedited review for a me-too product. Reviewers are specifically warned against limiting themselves to a label-to-label comparison but “must review a label based on the applicable law and guidance.” See EPA Label Review Manual, Ch. 1, at 2, III, B: This manual provides a systematic approach to the label review process. Most label reviews involve products that make reference to another label and which are not accompanied by data. When reviewers compare new proposed labels to previously registered labels, the existing, registered label may have errors or be out of date. If the existing label has deficiencies, the proposed label may bear the same errors. Consequently, label reviewers must not rely solely on a label to label comparison, but must review a label based on applicable law and guidance. See also, 4/22/05 Hr. Tr. at 72-73 (emphasis added). For pesticides with multiple use sites and different methods of application and application rates, the respective products’ “directions for use” may be many pages long and are often attached to the pesticide container in booklet form. The regulated disclosures are intended to provide the required information “stated in terms which can be easily read and understood by the average person likely to use or to supervise the use of the pesticide.” See 40 C.F.R. § 156.10(i)(l)(I). CSI contends that both the statute and the EPA guidance contemplate that the label of a me-too product will be essentially the same as that of the already-registered product. However, CSI produced, and this Court has found, no evidence, statute or regulation that permits or authorizes such direct infringement or plagiarism. Nor is there any indication within the applicable statutes and regulations to provide support for CSI’s proposition that copyright law is to be preempted- in the context of consumer or commercial product labels. CSI’s argument, taken to its logical conclusion, would even discourage consumer and commercial manufacturers from updating their labels. Specifically, with respect to me-too submissions, Chapter 11 of the EPA Label Review Manual provides:' If the application is a mé-too submission ..., reviewing the directions for use is fairly straightforward: The label reviewer should make a side-by-side comparison of the proposed set of use directions to the use directions on the label for the registered product(s) which are identified in the me-too application. CSI does not go so far as to argue that this directive is designed to assure (and, thereby, require) copying. However, despite this requirement for a comparison, CSI doe's claim that requiring independent creation of product labels would result in very significant consequences for the applicants, the EPA, and the users of pesticide products. Without any support for its proposition, and perhaps because CSI has never in fact attempted to independently create a product label, CSI surmises that applicants likely would be forced by the EPA back to using the exact form of wording as is in the already registered label. See 4/22/05 Hr. Tr. at 103-117, 136-40. CSI also makes much of its stated concern that the EPA would be required to utilize significant additional resources to review me-too labels to compare language that is different from the original label or is possibly presented at different places on the label. Thus, CSI states it is concerned that the EPA would be required constantly to determine whether the alternative language has the same meaning as the language originally approved by EPA for the pioneer product. Without a doubt, checking two documents merely to determine whether they are identical is not difficult. That is not the task assigned to the EPA reviewing staff, and this Court has more faith and confidence in the EPA’s abilities. There is simply insufficient reason to doubt that EPA personnel have the requisite education, skill and experience in their respective fields to determine, consistent with Chapter 11 of the EPA Label Review Manual, by a side-to-side comparison, whether the language in purportedly similar labels has the same import. Finally, CSI argues that under the type of drafting that FMC claims is appropriate and consistent with copyright law, expedited EPA review would become an impossibility. However, CSI’s argument is flawed, considering the evidentiary showing by FMC that, in fact, the EPA has been able to comply with the regulatory expedited time requirements when approving a me-too label application that consisted of language drafted to merely be substantially — and substantively — similar without being a near-verbatim copy. See generally, Exs. P-67 and P-69 (the generic AgValue PoaConstrictor product labels) and P-68 (the original Bayer Prograss product label). CSI’s Director for Regulatory Affairs, testified essentially that CSI eopied FMC’s label because CSI desired quicker entry and distribution into the bifenthrin-based pesticide market than it could enjoy if CSI took the time and expended effort to create its own label and submit it for EPA approval. This is a candid explanation of CSI’s motives, but candor does not make up for the fact that it is not a valid or legal defense to copyright infringement. As discussed above, nothing in the applicable regulations requires CSI to use the same label language as FMC. See 40 C.F.R. § 156.10. To the contrary, the regulations addressing the labeling requirements for pesticides provide significant latitude to determine the content and placement of product label language. For example, the provisions concerning “directions for use” require only that the label be drafted with plain language that is easily understood: (i) Directions for Use — (1) General Requirements — (i) Adequacy and clarity of directions. Directions for use must be stated in terms which can be easily read and understood by the average person likely to use or to supervise the use of the pesticide. When followed, directions must be adequate to protect the public from fraud and personal injury or to prevent unreasonable adverse effects on the environment. (ii) Placement of directions for use. Directions may appear on any portion of the label provided that they are conspicuous enough to be easily read by the user of the pesticide product. Directions for use may appear on printed or graphic matter which accompanies the pesticide.... 40 C.F.R. § 156.10(a). Nothing in the regulations regarding me-too applications requires verbatim copying of the original label. See 40 C.F.R. §§ 152.85 and 152.113(b). Moreover, the EPA Label Review Manual, including the relevant EPA Pesticide Registration Notices (the “PR Notices”) available as updates on the EPA website, have advised registrants to develop their own language for product labels. See Ex. P-50 (EPA Label Review Manual); Ex. P-51 (PR Notices) (“Registrants, should develop language of their own which follows the above guidelines ...” PR Notice 96-7 at 15; “[t]he Agency encourages the development of information and label provisions regarding the efficacy of such treatments ...” Id. at 19; “Specific storage instructions are not prescribed.” PR Notice 83-3 at 2) (emphasis added). Furthermore, FMC correctly argues that, while the EPA Label Review Manual requires that “[f]or me-too submissions, the pesticide product and the proposed use must be identical or substantially similar to a currently registered pesticide,” it does not require the pesticide label to be identical or substantially similar. Ex. P-50, EPA Label Review Manual, at 4-3. Not even a specific layout for the “directions for use” are mandated: “The format for the presentation of use information on the me-too label need not be identical to the format on the registered (cited) label as long as the critical information as described above remains the same and the me-too product meets applicable legal requirements on labeling.” Id. at 11-3 (emphasis added). The EPA Label Review Manual also offers examples of labels that may be partially filled-in for registrants to add necessary language, and further instructs that the EPA reviewer will look at each label to “make a case-by-case determination on the acceptability of label language.” Id. at Chapter 3, Sample Label Formats and 11-3. Finally, regardless of the Court’s interpretation of the statutory and regulatory language that supports FMC’s request for a preliminary injunction, as explained above, FMC has also made a persuasive evidentiary showing that verbatim or nearly wholesale copying of another registrant’s label is unnecessary to obtain expedited review by the EPA of a label. D. Preliminary Injunction Analysis and Discussion 1. Establishing a Prima Facie Case of Copyright Infringement (a) The Copyright Umbrella FMC’s copyright claim involves many of the underlying tenets of intellectual property rights. Pursuant to Article I, Section 8 of the Constitution, Congress is empowered to enact laws “To Promote the Progress of Science and useful Arts, by securing .for a limited Time to Authors and Inventors the.exclusive. Right to their respective Writings and Discoveries.” Pursuant to 35 U.S.C. § 101, et seq. (“Inventions patentable”), inventors or discoverers of new and useful compositions of matter, such as bifenthrin, are given an exclusive right to their invention or discovery for a period of years after which the invention or discovery and its teachings inure to the benefit of the public. Under the Copyright Act of 1976, 17 U.S.C. § 101, et seq., the creators of “original works of authorship” may claim the benefit of statutory protection. § 102. Proprietors of compilations or derivative works, such as the labels at issue, are entitled to a valid copyright in such works. See 17 U.S.C. § 103. The concepts or ideas set forth in works of authorship, without more, are not protectible by copyright. See Baker v. Selden, 101 U.S. 99, 11 Otto 99, 25 L.Ed. 841 (1879); 17 U.S.C. § 102(b). Likewise, purely fáctual information is beyond the scope of copyright protection. Harper & Row Publishers, Inc. v. Nation Enterprises, 471 U.S. 539, 105 S.Ct. 2218, 85 L.Ed.2d 588 (1985). “[R]aw facts may be copied at will.” Feist Publications, Inc. v. Rural Telephone Service Co., Inc., 499 U.S. 340, 350, 111 S.Ct. 1282, 113 L.Ed.2d 358 (1991). The so-called “sweat of the brow” doctrine has been repudiated, and Section 102(b) was included within the Copyright Act of 1976 to emphasize that no copyright may be attained for factual information. Id. at 356, 111 S.Ct. 1282. (b) The Originality Requirement Originality is the sine qua non of a copyright. Id. A work must be original to its author for the work to qualify or be entitled to copyright protection. Id. (citing Harper & Row, 471 U.S. at 547-49, 105 S.Ct. 2218). “Original” means that the work was independently created by the author (as opposed to copied from other works), and that it possesses at least some minimal degree of creativity. 1 M. Nimmer & D. Nimmer, Copyright §§ 2.01[A], [B] (1990) (hereinafter Nim-mer). To be sure, the requisite level of creativity is extremely low; even a slight amount will suffice. The vast majority of works make the grade quite easily, as they possess some creative spark, “no matter how crude, humble or obvious” it might be. Id., § 1.08[C][1]. Originality does not signify novelty; a work may be original even though it closely resembles other works so long as the similarity is fortuitous, not the result of copying. Feist, 499 U.S. at 345, 111 S.Ct. 1282; see also, Miller v. Universal City Studios, Inc., 650 F.2d 1365, 1369-70 (5th Cir.1981) (“Copyright protection does not extend to the facts themselves, and the mere use of information contained in a directory without substantial copying of the format does not constitute infringement.”). Originality is also a constitutional necessity requiring “independent creation plus a modicum of creativity.” Id. at 346, 111 S.Ct. 1282 (citing The Trade-Mark Cases, 100 U.S. 82, 94, 10 Otto 82, 25 L.Ed. 550 (1879)). Protected writings are the result of “the fruits of intellectual labor.” Id. Moreover, nothing in the copyright statute “support[s] the argument that the intended use or use in industry of an article eligible for copyright bars or invalidates its registration.” Mazer v. Stein, 347 U.S. 201, 218, 74 S.Ct. 460, 98 L.Ed. 630 (1954). The Supreme Court has explicitly refused to read such a limitation into the copyright law. Id. In essence, CSI contends that regulated commercial product labels are per se excluded from copyright protection under the express terms of Section 102(b) of the Copyright Act and consistent with the precedent and principles underlying Baker v. Selden, 101 U.S. 99, 11 Otto 99, 25 L.Ed. 841 (1879). However, just as the Baker plaintiff could not secure a copyright in bookkeeping system, this Court is not holding that FMC has a copyright or any other intellectual property protection for the system of pesticide application. Nevertheless, just as the Baker plaintiff was entitled -to copyright protection for its forms and description on how to do bookkeeping, FMC’s description of how to most effectively. use TalstarOne is the proper subject of a copyright. See Apple Computer, Inc. v. Franklin Computer Corp., 714 F.2d 1240, 1250. “[FMC] does not seek to copyright the method which instructs the [user] to perform its [extermination] functions but only the [unregulated text of] instructions themselves.” See id. at 1251. This Court finds no reason to afford any less copyright protection to the partially regulated instructions on a commercial product label than to the instructions on a non-regulated or regulated consumer product label. See id. Stated otherwise, weak copyright is still a valid copyright, entitled to protection and, when applicable, injunctive relief. (c) Compilations and Originality In Feist, the Supreme Court analyzed and explained two well-established propositions in copyright jurisprudence: (1) facts are not copyrightable and (2) compilations of facts generally are. 499 U.S. at 344, 111 S.Ct. 1282. The Feist Court explained that the distinction between facts and factual compilations involves an understanding of the dichotomy between creation and discovery. Id. at 347, 111 S.Ct. 1282. Moreover, the Supreme Court emphasized that “[e]aeh of these propositions possesses an impeccable pedigree.” Id. at 344, 111 S.Ct. 1282. Furthermore, the Supreme Court also noted that “it is beyond dispute that compilations of facts are within the subject matter of copyright. Compilations were expressly mentioned in the Copyright Act of 1909 and again in the Copyright Act of 1976.” Id. at 345, 111 S.Ct. 1282. (d) Purely Factual Information Pro-tectible If Compilation Created With A Modicum of Creativity Factual compilations can possess the requisite originality to be afforded copyright protection. The compilation author typically chooses which facts to include, in what order to place them, and how to arrange the collected data so that they may be used effectively by readers. These choices as to selection and arrangement, so long as they are made independently by the compiler and entail a minimal degree of creativity, are sufficiently original that Congress may protect such compilations through the copyright laws. Nimmer §§ 2.11[D], 3.03; Deni-cola 523, n. 38. Thus, even a directory that contains absolutely no protectible written expression, only facts, meets the constitutional minimum for copyright protection if it features an original selection or arrangement. See Harper & Row, 471 U.S. at 547, 105 S.Ct. at 2223. Accord, Nimmer § 3.03. Feist, 499 U.S. at 348, 111 S.Ct. 1282 (emphasis added). The originality requirement for a copyright “is not particularly stringent” and no novelty is required. Id at 358, 111 S.Ct. 1282. Rather, “[originality requires only that the author make the selection or arrangement independently (ie., without copying that selection or arrangement from another work), and that it display some minimal level of creativity.” Id. Thus, “the vast majority of compilations will pass this test, but not all will. There remains a narrow category of works in which the creative spark is utterly lacking or so trivial as to be virtually nonexistent.” Id. at 358-59, 111 S.Ct. 1282. While case law explains that the alphabetized white pages of a phonebook is such an example, little other guidance has been provided. See Feist, generally. To this Court, however, FMC’s choice of language and layout for the non-mandated portions of the TalstarOne label would not fall into this “utterly-lacking-spark” category, as the Court finds that not only does a non-trivial creative spark exist consistent with the protections provided by the Copyright Act, but within the non-regulated content of the TalstarOne label there is a significant amount of material that FMC objectively and subjectively believes is specifically drafted to market to and assist current and prospective customers. Here, even if FMC, as a compilation author, added no written expression, “[t]he only conceivable expression is the manner in which [FMC] selected and arranged the facts. Thus, if the selection and arrangement are original, these elements of the work are eligible for copyright protection.” See Feist, 499 U.S. at 349, 111 S.Ct. 1282. The Supreme Court held that the copyright in a factual compilation may not necessarily be robust. See id. However, even if the Court finds that the copyright in a factual compilation may be weak or “thin”, and notwithstanding a valid copyright in the FMC product label, CSI is permitted to use the purely factual material contained in FMC’s labels to aid in preparing the labels for CSI’s generic product, “so long as [CSI’s] competing work does not feature the same selection and arrangement.” Id. “[T]he very same facts and ideas may be divorced from the context imposed by the author, and restated or reshuffled by second comers, even if the author was the first to discover the facts or to propose the ideas.” Id. (citing Ginsburg, Creation and Commercial Value: Copyright Protection of Works of Information, 90 ColuM.L.Rev. 1865, 1868 (1990)). Here, FMC has never argued, and could not argue, that CSI could not use the TalstarOne label as the basis or starting point for the Bifen I/T label. Paraphrasing is permitted. The EPA guidelines even suggest such a derivative work. See Ex. P-50 at 15,19. FMC correctly contends that CSI is not permitted to “feature the same selection and arrangement” as FMC featured, yet CSI has admitted to doing exactly that. The FMC TalstarOne label is, at a minimum, a factual compilation that is eligible for copyright. CSI has so far failed to rebut FMC’s showing that the TalstarOne label “features an original selection or arrangement of facts, [even if,] the copyright is limited to the particular selection or arrangement.” See Feist, 499 U.S. at 350-51, 111 S.Ct. 1282. (e) Valid Copyright — The Idea/Expression Dichotomy CSI challenges the copyright of regulated product labels relying on the line drawn between ideas and their expression. Only expressions with at least a modicum of creativity are entitled to a copyrighted. Baker v. Selden remains a legal benchmark regarding the scope of copyright for its discussion in Mazer v. Stein, where the Court stated, “[ujnlike a patent, a copyright gives no exclusive right to the art disclosed; protection is given only to the expression of the idea-not the idea itself.” Apple Computer, 714 F.2d at 1252 (citing 347 U.S. at 217, 74 S.Ct. at 470 (footnote omitted)). Copyrights protect originality, not novelty or invention. Franklin Mint Corp. v. National Wildlife Art Exchange, Inc., 575 F.2d 62, 64 (3d Cir.), cert. denied, 439 U.S. 880, 99 S.Ct. 217, 58 L.Ed.2d 193 (1978). Of particular significance to the FMC-CSI dispute, |j]ust as a patent affords protection only to the means of reducing an inventive idea to practice, so the copyright law protects the means of expressing an idea; and it is as near the whole truth as generalization can usually reach that, if the same idea can be expressed in a plurality of totally different manners, a plurality of copyrights may result, and no infringement will exist. Id. at 1253 (quoting Dymow v. Bolton, 11 F.2d 690, 691 (2d Cir.1926) (emphasis added)). Such a conclusion necessarily presumes that there is no infringement when there has been independent drafting of another version so that plurality results, while infringement can be found where, as here, there has been wholesale or verbatim copying. (f) Apple Computer, Near-Verbatim Copying, and a Plurality of Copyrights Apple Computer, supra, 714 F.2d 1240, is instructive for its holdings as well as its factual similarity to this case. In Apple Computer, the Court of Appeals for the Third Circuit found that the programs sold by Franklin were virtually identical with those covered by the [ ] Apple copyrights. The variations that did exist were minor, consisting merely of such things as deletion of reference to Apple or its copyright notice. Id. at 1245. The following factual situation from Apple Computer is similar to the instant matter, Franklin did not dispute that it copied the Apple programs. Its witness admitted copying each of the works in suit from the Apple programs. Its factual defense was directed to its contention that it was not feasible for Franklin to write its own operating system programs .... Franklin’s vice-president of engineering ... concluded that ... identical [copying] was necessary in order to ensure 100% compatibility with application programs created to run on the Apple computer. He admitted that he never attempted to rewrite Autostart ROM and conceded that some of the works in suit (i.e. Copy, Copy A, Master Create, and Hello) probably could have been rewritten by Franklin. Franklin made no attempt to rewrite any of the programs prior to the lawsuit except for Copy [but] was “in the process of redesigning” some of the Apple programs and that “[w]e had a fair degree of certainty that that would probably work.” Apple introduced evidence that Franklin could have rewritten programs ... and that there are in existence operating programs written by third parties which are compatible with Apple II. Franklin’s principal defense [was] its contention that the Apple operating system programs are not capable of copyright protection. Id. at 1245. Therefore, the threshold question here is whether the idea that is the subject of copyright is capable of various modes of expression. See Dymow, 11 F.2d at 691. If a label for a competing product can be written or created which performs the same function as FMC’s label, then that label is an expression of the underlying idea and is itself copyrightable. See id. The Apple Computer court held that “[i]n essence, this inquiry is no different than that made to determine whether the expression and idea have merged, which has been stated to occur where there are no or few other ways of expressing a particular idea.” See, e.g., Morrissey v. Procter & Gamble Co., 379 F.2d 675, 678-79 (1st Cir.1967); Freedman v. Grolier Enterprises, Inc., 179 U.S.P.Q. 476, 478 (S.D.N.Y.1973) (“[e]opyright protection will not be given to a form of expression necessarily dictated by the underlying subject matter”). Here, evidence presented during the preliminary injunction hearing supports the conclusion that there are multiple means to express the non-regulated language contained within the FMC label. It seems entirely consistent with common sense that the language structure and selection used by FMC does not represent the only means of expression of the ideas described by that language. While a successful effort would likely require more than a well-thumbed thesaurus, the task is not so daunting as to chill or thwart legitimate competition as CSI suggests. In fact, CSI’s expert testified that his company personnel could draft other language to represent the ideas on which FMC’s label is based. See 4122/05 Hr. Tr. at 167-68. With regard to the