HQ 450288: Suspected copyright infringement of "Googles" Platypusstuffed animal which is registered with the U.S. Copyright Office(No. VA 332-950, March 3, 1989) and recorded with U.S. Customs(Issuance No. 89-058, April 28, 1989).

Native CBP ruling rendition. Applicability is fact-specific; modification/revocation relationships and original publisher date are retained. Publisher sentinel year0001 means unknown date, not a historical legal adoption.

                            HQ 450288

                        December 12, 1990

TRA CO:R:P IPR 450288 TPT

CATEGORY: Copyright


District Director of Customs
511 N.W. Broadway
Portland, Oregon   97209

Re:  Suspected copyright infringement of "Googles" Platypus
stuffed animal which is registered with the U.S. Copyright Office
(No. VA 332-950, March 3, 1989) and recorded with U.S. Customs
(Issuance No. 89-058, April 28, 1989).

Dear Sir:

     This is in response to your letter dated July 24, 1990,
requesting a Headquarters ruling on the possible infringement of
the "Googles" Platypus stuffed animal.

FACTS:

     The instant matter involves the importation of 420 stuffed
animal toys described on a commercial invoice as Plump Duck.  The
value of the merchandise is $2,268 as shown on the invoice.  Upon
examination by Customs, Customs detained the subject merchandise
for possible infringement of the copyright referenced above. 
Upon notification of the importer that the goods were suspected
of copyright infringement, the importer submitted a statement
denying infringement of any copyright.

     Customs informed the copyright owner concerning the
importation of the merchandise.  Upon notification from Customs,
the copyright owner requested that the merchandise not be allowed
entry and posted a bond in the amount of $2,800.

ISSUE:

     Whether the shipment of plump duck stuffed animals infringes
the registered and recorded copyright of the "Googles" Platypus
stuffed animal?

LAW AND ANALYSIS:

     A party claiming infringement of its copyright must prove
that it owns the copyright, that the alleged infringer had access
to the                             2


copyrighted work, and that there is substantial similarity
between the copyrighted work and the alleged infringing work. 
Aliotti v. R. Dakin & Co., 831 F.2d 898, 900 (9th Cir. 1987).  A
party makes a prima facie case as to copyright ownership by
submitting the copyright registration which carries with it a
presumption of validity and ownership.  17 U.S.C. 410(c); Quaker
Oats Co. v. Mel Appel Enterprises, Inc., 703 F. Supp. 1054, 1058
(S.D.N.Y. 1989).  Access may be established by direct proof of
copying or by circumstantial evidence that an alleged infringer
had access to the copyrighted work.  Gund, Inc. v. Russ Berrie
and Co., Inc., 701 F. Supp. 1013, 1018 (S.D.N.Y. 1988).  Whether
a work is substantially similar to another is determined by the
"ordinary observer" test which is whether the ordinary observer
would be disposed to overlook the disparities of the works and
would regard their aesthetic appeal as the same.  Id. at 1018.  A
determination that copying has taken place does not require a
finding that every detail is the same, the key being similarity
rather than the differences.  Id. at 1018.

     Imported articles which infringe a copyright are prohibited
importations under section 602(b) of the Copyright Act (17 U.S.C.
602(b)) and such articles are subject to seizure and forfeiture
under section 603(c) of the Copyright Act (17 U.S.C. 603(c)). 
These articles are seized and forfeited in the same manner as
goods imported in violation of the Customs revenue laws. 
Alternatively, infringing articles may be returned to the country
of export whenever it is shown to the satisfaction of the
Secretary of the Treasury (Customs) that the importer had no
reasonable grounds for believing that its acts constituted a
violation of law.  19 C.F.R. 133.47.  The party claiming that an
imported article is infringing shall bear the burden of proof. 
19 C.F.R. 133.43(c)(1).

     Initially, we conclude that Ganz Brothers has established a
prima facie case of ownership of the copyright since it has
submitted a registration certificate issued by the U.S. Copyright
Office.

     Next, concerning the issue of access to the protected work,
the record includes a statement by Mr. Howard Ganz, president of
Ganz Brothers.  In his statement, he contends that there was
access to his product as a result of advertising of the product. 
He states that samples of the subject article were sent to sales
representatives as early as January, 1988, and were displayed at
approximately 50 trade shows in the United States since January,
1988.  This product was available for sale in the spring of 1988
and has been displayed in a large number of retail outlets.  
     
     In the absence of any statement by the importer on the issue
of access to the protected work, we conclude that access to the
protected work existed.
   
                              3


     Turning to the issue of substantial similarity, the
importer, in denying that its stuffed toy doll is piratical,
states that its stuffed doll animal design is based upon the
description found in the Webster Dictionary for a platypus.  The
importer states that the dictionary describes a platypus as a
flat footed animal, with
webbed feet, having a tail like a beaver, and a bill like a duck. 
The importer, upon examining a photograph of the copyrighted
doll, contends that its toy doll differs from the copyrighted toy
because of differences in the feet, tail, and bill.  The importer
contends that the copyrighted work is not designed like a
platypus.

       In arguing that infringement of the copyrighted work
exists, Ganz Brothers states that the imported article copies the
entire unique aesthetic appeal of the protected work.  The
copyright owner asserts that the overall appearance of the
imported article includes visual elements distinctive to the
protected work such as the shape, size, combination of materials,
body, and facial proportions.  Specifically, Ganz Brothers argues
that the expression of the idea, that of a plush, long-haired toy
platypus,
is copied because details such as the elongated, resting position
of the doll, color combination, beak shapes, black plastic eyes,
and webbed feet are the same.

     Ganz Brothers argues that while minor differences exist
between its protected stuffed animal and the imported article,
the differences are the type that an ordinary observer would be
likely to overlook.  Ganz Brief at 10.  Ganz Brothers further
contends that the manufacturer of the imported article has
engaged in nothing more than a thin attempt to disguise
deliberate copying. Id. at 10-11.

     When comparing stuffed animals, prior cases are helpful.  It
has been previously determined that to the degree that the
similarity between the copyrighted work and an alleged infringing
work inheres only in the general ideas expressed, the
similarities are not infringing; therefore, it follows that
similarity in expression is non-infringing to the extent the
nature of the creation makes similarity necessary and that
"indispensable expression" of a generalized idea may be protected
only against virtually identical copying.  Gund, Inc. v. Smile
International, Inc., 691 F. Supp. 642, 645 (E.D.N.Y. 1988),
aff'd, 872 F.2d 1021 (2d Cir. 1989), see Durham Industries, Inc.
v. Tomy Corporation, 630 F.2d 905 (2d Cir. 1980) (when the
protected work and the alleged infringing work express the same
idea, the similarity that invevitably stems solely from the
commonality of the subject matter is not proof of unlawful
copying).  

     In the instant case, the dolls (the imported sample and the
one Ganz Brothers doll) are characterized as being a stuffed
platypus (sometimes called a duckbill).  According to the
Webster's Third New International Dictionary a platypus has a
bill resembling                              4


that of a duck, a fur coating, five-toed webbed feet, and a broad
flattened tail.  Based upon this general description of the
animal, we may assume that stuffed animals made to replicate this
animal will have some or all of these features.  Therefore, the
case revolves around the resolution of the issue of whether the
imported article unnecessarily copies features of the copyrighted
work in order to express the idea of a stuffed platypus doll.  

     It is not improper to engage in a side-by-side comparison of
the dolls in order to reach a determination on the issue of
substantial similarity.  Knickerbocker Toy Co., Inc. v. Genie
Toys, Inc., 491 F. Supp. 526, 528 (E.D. Mo. 1980).  In examining
the imported doll, we note that, it is approximately a foot
longer than the protected work, although the overall shape and
color are similar.  Significantly, however, unlike the protected
work, the imported article possesses a beaver-like tail.  The
bill on the imported article is longer and narrower than that on
the protected work.  The bill also has two black stripes which
the protected work does not possess.  When the imported article
and the protected work are placed on a flat surface, an observer
notices immediately the larger, more pronounced webbed feet of
the imported article which extend out away from the body more
than on the copyrighted doll.  Based upon the overall appearance
and comparison of the two dolls, we conclude that there is no
infringement.

HOLDING:

     We conclude that the similarities between the protected work
and the imported doll are dictated by the subject matter being
expressed.  Therefore, we hold that the imported article is not
an infringement under 17 U.S.C. 602 and may be released and the
bond deposited by the copyright owner shall be provided to the
importer. 
                              Sincerely,




                              John F. Atwood, Chief
                              Intellectual Property Rights