Oct 26, 2015

Boo-Hoo - Copyright Does Not Subsist in Pomeranian Dog Toy

Copyright does not subsist in a toy of the world's 'cutest dog', a Pomeranian named Boo, according to The District Court in The Hague.

Buddy Boo Inc. is an American Company founded by the owner of what has become an iconic Pomeranian dog – Boo. The company is responsible for commercialisation of Boo's public appeal which includes 17 million Facebook likes and has managed to develop a network of licensee's and distribution agreements, predominantly for a toy designed to look like Boo but also for a full range of merchandise. Buddy Boo Inc. also holds a Certificate of Registration of Copyright dated 21 August 2014 from the United States Copyright Office.  Readers will recall that the US has a system in place for the registration of copyright.

In this case a licensee, Enesco, brought an action in the Netherlands against Dino ("Defendant"), under the rights granted in a license agreement. The Defendant had released a range of stuffed dogs named 'Pom', based on a different Pomeranian dog.  Enesco claimed that these were copies of Boo and had therefore infringed its rights.

Enesco claimed that subjective choices had been made when designing the stuffed toy of Boo and that the toy was both original and creative.  It requested that the Court order the Defendant to cease trading in the infringing products, desist infringing the copyright subsisting in the Boo toys and destroy any remaining stock.

The Presiding Judge, however, found that copyright does not subsist in the Boo toy. The characteristics of Boo (the toy) lack originality and Enesco failed to show that Boo was original in comparison to other Pomeranian dogs.  The Judge's decision turned on the question of an author's own intellectual creation. The design of Boo consisted of characteristics of the real dog (which are not protected by copyright) coupled with industry standard adaptations which are therefore not creative choices to suit the creation of a stuffed animal.

The concept of an author's own intellectual creation, of which creative choices is a key element, has been incorporated in harmonisation of copyright across the European Union. It is therefore likely that a (largely) similar decision would be reached across the EU.

For our Dutch readers/speakers the decision is available here.

Posted by: in: Case Law, Copyright, News

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