Netherlands: Every dog has its copyright?

The court of appeal of The Hague recently ruled that the lifelike stuffed animal reproduction of a dog is protected by copyright. This decision once again proves that the threshold for claimants to invoke copyright is quite low.

Enesco, a toy company, manufactures and distributes a stuffed dog called "Boo The World's Cutest Dog". The stuffed animal is based on the actual dog Boo, which is a specially groomed dog that is quite famous. It even has its own FaceBook page, which has 17 million "likes". Enesco, acting as licensee in respect of toys related to the dog Boo, objected to the sale of a more or less identical stuffed dog bearing the name Pom by Dino Trading, claiming that the Pom toy was infringing Enesco's (licensed) copyright in the stuffed Boo dog.

In the Netherlands, copyright is vested in a work that is based on the creative act of the author, and that reflects the author's signature. Banal or trite designs fall outside of the scope of what is protected by copyright. In first instance, the court ruled that the stuffed Boo is nothing more than a realistic reproduction of a real life dog, and therefore, no copyright can be claimed. The Court of Appeal however, is of the opinion that the stuffed Boo is in fact protected by copyright, and that the sale of the Pom dog constitutes an infringement. Given that the definition of what constitutes a work enjoying copyright is harmonised, the Court of Appeal granted the injunction in respect of the EU territory.

This goes to show that little creativity is required to invoke copyright as an author. In any case, manufacturers of lifelike reproduction toys (such as stuffed animals or toy cars) are thrown a bone by this ruling, as it will strengthen their position as copyright owners.

Jurriaan Cleuver

V.O.Johan de Wittlaan 72517 JR The HagueThe NetherlandsTel: +31 70 416 67 11Fax: +31 70 416 67 99info@vo.euwww.vo.eu