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  • InsideTrack
  • December 02, 2015

    Legal Oddities: Goats on a Roof and Authentic Farting Hippo Toys

    Goats on a grass roof, and farting hippo toys – not just for amusement. Here are legal cases surrounding issues of restaurant décor and copyright infringement.

    goat faceDec. 2, 2015 – If you have had the urge to photograph goats on a roof, and in particular a grass roof, feel free to do so.

    The Trademark Trial and Appeal  Board (TTAB) has made it clear that Al Johnson’s Swedish Restaurant & Butik, Inc. in Door County won’t sue you. It’s true that the restaurant registered a trademark for “a roof comprised of grass and bearing several goats on the roof” (Registration No. 3942832).

    This caused Robert Doyle, who wanted to photograph goats on roofs, to petition the TTAB, and attempt to cancel Al Johnson’s registration. The 2012 decision quotes Robert Doyle’s claim that:

    “Many establishments in the classes to which Registrant’s mark apply have, because of Registrant’s marks, refrained from placing goats on their grass roofs, as a result of which Petitioner has been, and will continued (sic) to be, damaged in that Petitioner has been, and will continue to be, unable to satisfy his desire to take photographs of goats on grass roofs.”

    Doyle claimed that the grass roof on the restaurant held down energy costs, and that having goats on the roof eating the grass eliminated the need for mowing the roof. Therefore, the design was functional, not merely aesthetic. Johnson counterclaimed that if all restaurant décor was considered functional “merely because it was entertaining and attractive” then “no restaurant décor could be protected as trade dress.”

    The Trademark Trial and Appeal Board was not sympathetic to Doyle. It said that he had no standing to object to the restaurant’s registration. Doyle never claimed that he was going to operate a restaurant with a gift shop. As the TTAB observed:

    “In short, petitioner alleges that he wants to take photographs of goats on roofs, but does not allege that anything about respondent’s mark or Registrations prevents him from doing so.”

    The TTAB, addressing Doyle’s claim that goats on a grass roof was functional and not merely aesthetic or entertaining, said that a grass roof may be functional for holding down energy costs, and that goats on a roof may save the cost of mowing the roof.

    However, the board said that Doyle didn’t relate his assertion to restaurant and gift services. A grass roof with goats could be energy efficient for any type of business or service.

    So, if your law firm wants to remodel its building for energy efficiency, consider a grass roof.

    And don’t forget the goats.

    Flatulent Abuse of the Legal System?

    Fans of the CBS television show NCIS may be familiar with a toy one of the characters has: Bert the Farting Hippo (seen in action here). For a while, CBS’s online store sold Bert the Farting Hippo at its online site – but not now. The creator of the toy is claiming copyright infringement.

    Don Mac GregorDon Mac Gregor is a librarian at Wolters Kluwer Legal & Regulatory Solutions U.S., Chicago. He is studying to become a paralegal in the post-baccalaureate Paralegal Studies Program at Roosevelt University in Chicago.

    Folkmanis, a puppet-making company, created the original. In 2003, the first iteration, Hippo 1 was used in several episodes of NCIS, but the farts were dubbed in. In 2009, Folkmanis developed a smaller, 18-inch version, referred to in the complaint as Hippo 2, and obtained a copyright on it.

    Delivery Agent, the company authorized to run CBS’s online store, asked Folkmanis to develop a special edition Hippo 2 puppet. Hippo 2.1 has a spiked choker collar and a sound box producing farting noises. CBS then sold the puppet under the name of “Bert the Farting Hippo.”

    The farting hippo toy sold well. When Delivery Agent asked Folkmanis to produce keychains with the hippo on it, Folkmanis agreed and started producing them for the online store – for a while. Then Delivery Agent decided to switch manufacturers to a Chinese company, a move that Folkmanis thought – well, stinky.

    Every Farting Hippo toy produced by Folkmanis carries a copyright notice tag on it. The Chinese-made Farting Hippos don’t. Folkmanis sued the manufacturer, CBS Broadcasting, and Delivery Agent for copyright infringement. The Hollywood Reporter’s THR Esq. Blog had this to say:

    “No word yet on whether the farts constitute non-copyrightable matter, a work-for-hire, or just maybe, fair use under the First Amendment, but a CBS spokesperson responds, ‘We believe this to be a flatulent abuse of the legal system, and we intend to clear the air on this matter immediately.’”

    CBS tried to clear the air, but without luck. The authentic Farting Hippos will get their day in the Federal Northern District Court of California on July 12, 2016.

    Mac Gregor is a current member of the Law Librarians Association of Wisconsin (LLAW), a chapter of the American Association of Law Libraries. LLAW's Public Relations Committee coordinates regular contributions by its members to InsideTrack.

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