Friday, July 15, 2011

Angry Birds Take On Counterfeit Pigs

Rovio Mobile Oy v. Ideal Toys Direct Inc., No. 11-CIV-4773 (Complaint Filed July 11, 2011).

We often discuss with clients the importance of multiple layers of intellectual property protection.  Take, for example, a video game.  The title can be protected under trademark law, and the trademark can be registered with the U.S. Patent and Trademark Office and its counterparts throughout the word.  If there are characters that are important, the names and images can be similarly protected under trademark law, and the visual appearances of the characters are protected under copyright law.  U.S. copyright law also provides additional benefits in litigation if the copyright is registered before any infringement or unlawful copying takes place.  Original music and videos can also be protected under copyright law. 

Multiple layers of protection provide advantages and options when it comes to enforcing the trademark rights.  For example, if a character is protected under both trademark and copyright law, a copyright claim might be more successful in litigation.  To prove infringement, one just has to demonstrate that the protected work and the infringing work are "substantially similar."  No intent to copy, or customer confusion need to be shown.  If the copyright is registered before the infringement takes place, one does not even have to demonstrate damages.  The federal Copyright Act permits the court to award "statutory damages" in an amount of $750 to $30,000 per infringed work (or up to $150,000 per work if the court determines the copying is willful).  Unlike the trademark law, which permits the court to award attorneys fees to the prevailing party only in "exceptional" cases, the Copyright Act provides that a court may award attorneys fees to the "prevailing party". So it is often preferable and more efficient to pursue a copyright claim in the right circumstances.

A complaint filed earlier this week by the owners of the intellectual property rights in the "Angry Birds" video game provides a good illustration of this. Rovio Mobile Oy, the developer of the Angry Birds video game, owns a U.S. trademark registration for its ANGRY BIRDS trademark.  Rovio also owns several U.S. copyright registrations covering the pig, bird and eagle characters.  Rovio's complaint claims that Ideal Toys's "Roly-Poly Birds" stuffed toys infringe Rovio's copyrights, and constitutes passing off and unfair competition under Section 43 (a) of the Lanham Act.  In addition to injunctive relief, the complaint seeks statutory damages, destruction of the infringing products, and attorneys' fees under the Copyright Act and an award of the defendants' profits and attorneys' fees under the Lanham Act.

The Complaint appears to have Ideal Toys on the run.  Time will tell whether Ideal Toys has any valid defenses.

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