HQ 451226: Request for reconsideration of Headquarters case 450381finding of non-infringement of the "Googles" Platypus stuffedanimal (U.S. Copyright Office Registration No. VA 332-950;Customs Issuance No. 89-058)

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 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
                              Intellectual Property Rights Branch