This episode was widely reported and became the basis of a cartoon by Clifford K. Berryman, which appeared in the Washington Post. Berryman later drew the bear in many other cartoons, utilizing the cuddly little cub as a symbol for the President. It was not long before an enterprising toy manufacturer brought out a stuffed toy in the cub’s image. Dubbed the “Teddy” bear, after the President, it immediately captured the public imagination.
Elaine Commins moves for preliminary injunction, alleging that Toyland, Toyland’s Gladys the Cross-Eyed Bear (“the Toyland bear”) infringes her company’s Gladly the Cross-Eyed Bear (“the Commins bear”). Commins’s complaint contains three counts. Count I is a copyright infringement claim under the United States Copyright Act. Count II is a trademark infringement claim under § 32(l)(a) of the Federal trademark law. Count III is an unfair competition or trade dress infringement claim under § 43(a) of the same statute.
Toyland moves for summary judgment on all three counts.
Impatiently, I began scanning the document.
...after examining the Commins and Toyland bears, the Court makes the following findings regarding Commins’s assertions of substantial similarity: (1) Commins contends that both bears are identical in size, shape, color and fur length. The bears are roughly the same size, approximately nineteen inches in height, although the Toyland bear is noticeably fatter and heavier. There is nothing unusual about this. In fact, teddy bears of this size are the most popular among consumers, and thus are produced...
I kept turning pages...
...asserts that both bears are cross-eyed and both wear corrective eyeglasses. This is true, but the button eyes on the bears are very different, as are the eyeglasses themselves. On the Toyland bear, the eyes are almost completely hidden by fur. On the Commins bear, the eyes are larger, more visible and better defined, with dark irises and white pupils. The Toyland eyeglasses are simple piano lenses behind which straightened eyes have been painted. The Commins eyeglasses make use of mirrors to...
And turned yet more pages...
...are the very same features that are so inherent in the abstract idea of a teddy bear that they are not subject to copyright protection. Based upon these findings, the Court concludes that the Toyland bear’s “total concept and feel” is significantly different from that of the Commins bear, and no reasonable juror would find the Toyland bear substantially similar to the Commins bear.
Accordingly, Toyland’s motion for summary judgment on Count I is granted.
My heart sank.
Count II alleges trademark infringement...
I kept searching ahead.
And once again...
...upon these findings, the Court concludes that no reasonable juror would determine that there is any likelihood of consumer confusion between the trademarks Gladys and Gladly. Accordingly, Toyland’s motion for summary judgment on Count II is granted.
I took a deep breath.
Count III alleges unfair competition, or more specifically, trade dress infringement. Here again, and despite the superficial similarities of crossed eyes and corrective eyeglasses, the Court finds that no reasonable juror would conclude that there is any likelihood that an appreciable number of ordinarily prudent purchasers are likely to be misled, or indeed simply confused, as to the origin of the two bears. Accordingly, Toyland’s motion for summary judgment on Count III is granted.
And finally...
Plaintiff’s motion for preliminary injunction is denied. Defendant is entitled to judgment as a matter of law. Judgment is entered for the defendant Toyland, Toy-land and against plaintiff Elaine Commins.
Some you win, some you lose.