HQ 450381: 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 450381

                        December 12, 1990

TRA CO:R:P IPR 450381 TPT

CATEGORY: Copyright


District Director of Customs
301 S. Ashley Drive
Tampa, Florida 33602

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 Madam:

     This is in response to your letter dated September 12, 1990,
requesting a Headquarters ruling on the possible infringement of
the "Googles" Platypus stuffed animal.

FACTS:

     The instant matter involves the importation of 1,680 stuffed
animal toys described on a commercial invoice as Quackers.  The
value of the merchandise is approximately $4,700 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 $5,746.

ISSUE:

     Whether the shipment of Quackers 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.
   
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     Turning to the issue of substantial similarity, the importer
argues that the imported article is a stuffed duck.  The
importer, in denying that its stuffed toy doll is piratical,
states that its stuffed doll animal design is significantly
different.  The importer states that the bill of its doll and the
webbed feet provide a basis for finding that there is no piracy. 


       In arguing that infringement of the copyrighted work
exists, Ganz Brothers states that the imported article was
intended to copy the overall impression of the Googles doll.  It
contends that the imported article is substantially similar to
the protected work as to shape and appearance.  The copyright
owner also asserts that the creation of Quackers post-dates
Googles and that this is evidence of the copying.  Ganz Brothers
also asserts that the imported article copies the entire
aesthetic appeal of the protected work.

     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).  

     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, despite the overall similarity
of the shape, it differs substantially from the protected
article.  The imported article is approximately seven inches
shorter, the webbed feet are designed differently, and the bill
is longer and rounded, unlike the copyrighted work which has a
wider, but shorter bill.  Further, one immediate featrue which is
different is that the imported article is not a long-haired doll. 
Therefore, we conclude that this doll does not infringe the
copyrighted work.

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
                              4


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