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HQ 451226

July 29, 1991
TRA CO:I:IT:I 451226 TPT

CATEGORY: COPYRIGHT

James Bikoff, Esq.
Baker & Hostetler
Washington Square, Suite 1100
1050 Connecticut Ave., N.W.
Washington, D.C. 20036

RE: Request for reconsideration of Headquarters case 450381 finding of non-infringement of the "Googles" Platypus stuffed animal (U.S. Copyright Office Registration No. VA 332-950; Customs Issuance No. 89-058)

Dear Mr. Bikoff:

This is in response to your letter dated May 15, 1991, wherein you requested reconsideration of our decision dated December 12, 1990 (450381 TPT).

FACTS:

Customs suspected copyright infringement of the above referenced copyrighted work. Customs detained 1,680 stuffed animals based upon the suspicion of infringement. The Intellectual Property Rights Branch, Office of Regulations and Rulings, issued a decision dated December 12, 1990.

Based upon the Headquarters decision, the imported merchandise was released from Customs's custody.

ISSUE:

Whether evidence presented on the request for reconsideration by the copyright owner is sufficient to reverse the December decision?

LAW AND ANALYSIS:

First, in regard to your reference of a stuffed doll, style number 31253, this doll was not referred to Customs Headquarters for a decision and, therefore, we cannot address the issue of infringement as to this article. Please note, however, that the importer's total shipment was detained on the basis of the bond filed on behalf of the copyright owner.

2

Turning to the imported stuffed platypus doll, style number 31252, you state that the decision is erroneous and contrary to the principle that "it is entirely immaterial that in many respects plaintiff's and defendant's works are dissimilar if in other respects similarity as to a substantial element of plaintiff's work can be shown." (citation omitted).

In Gund, Inc. v. Russ Berrie and Co., Inc., 701 F. Supp. 1013 (S.D.N.Y. 1988), the court was confronted with determining whether one stuffed ostrich doll infringed another ostrich doll. The court engaged in analyzing the dolls by comparing the features of each doll. The court noted similarities or differences of the necks, the color of the heads and necks, color of the eyes, shapes and texture of the beaks, shapes of the bodies and wings, and the colors. The court also discussed the effect of the color of the wings, shapes of the tails, and the dangling nature of the legs. From this analysis, we conclude that the substantial elements of the protected work are the ways in which the body parts of the protected work appears in the doll form.

In a Gund type of analysis, we conclude that the protected work has not been infringed. The protected work is a long- haired plush doll; the imported article is not. The body of the protected work is two tone in color; the imported article is not. The shapes of the webbed feet and beak are different. The main body portion of the imported doll differs from the protected work in that the body is narrower and rises to a high-centered back. The body of the Googles doll is broader and flatter across the body, having no ridge like appearance at the center of the back. The aspects of the two dolls compared here make up the substantial elements of the work.

HOLDING:

We conclude that when the total concept and feel are considered, the imported article does not infringe the Googles Platypus doll and, therefore, we affirm the initial decision rendered on December 12, 1990.

We note and appreciate your comments regarding Customs's need to implement steps to provide notice to the copyright owner in cases such as this.

Sincerely,

John F. Atwood, Chief

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