Baby Buddies, Inc. v. Toys “R” Us, Inc. (10th Cir. 2010)

The Eleventh Circuit (Dubina, Bowen, Tjoflat writing) issued an opinion a couple of weeks ago that addressed whether two bear-themed pacifier holders were substantially similar. Baby Buddies produced a pacifier holder (on left in image) that sold over a half-million units at Toys R Us.

Baby Buddie (left); Toy R Us (right)

The retailer decided to market a themed pacifier holder under its own label, and enlisted a consultant to design several different holders. In communications to a subcontractor the consultant stated that “I need a new animal design. [Toys R Us]  likes [Baby Buddies'] bear but I do not want to produce the same exact thing. Can you please work on a similar design?” The resulting product is the pacifier holder on the right.

Baby Buddies brought suit alleging, inter alia, infringement of the copyright in its pacifier holder. On October 3, 2008, the Middle District of Florida granted Toys R Us summary judgment on the infringement claims, finding that no genuine issue of material fact existed as to the fact that the two pacifiers were not substantially similar.

The Eleventh Circuit affirmed:

Overall, these features combine to create distinctly different bears from an aesthetic perspective. The Baby Buddies bear is smaller, is more finely sculpted, and has more clearly defined anatomical features such as a muzzle, toes, and paw pads, giving it a more refined appearance overall. The Toys R Us bear, with its larger size, fewer details, and cruder representations of anatomical features, has a distinctly abstract, cartoon-like, and almost bloated appearance. No properly instructed juror could find these bears substantially similar.

The Circuit commented:

We step back for a moment to observe that if someone copies the particular expressive elements from Baby Buddies’s pacifier holder, Baby Buddies can of course invoke copyright protection and try an infringement case before a jury. That is not this case, though. Baby Buddies is trying to invoke the protection of the copyright laws to prevent a competitor from using the idea of putting a sculpted teddy bear and a color-coordinated bow on a ribbon tether to create an aesthetically appealing pacifier holder. But this type of creative competition is entirely consistent with the copyright laws. Baby Buddies has the right to prevent others from copying its creative expression, but not from expressing similar ideas differently. If Baby Buddies has found the most appealing way to express its idea, the marketplace will reward it accordingly.