FAQ

Miffy with ducks beak, plagiarism or parody

An online row occurred in China about an exhibition of Feng Feng’s paintings. Stylized rabbits with a duck beak, strongly reminding of Dick Bruna's Miffy. The artist rejects accusations of plagiarism because commercial symbols are part of the public domain. How would we regard this in Europe?

Works of visual art are protected by copyright. The threshold for copyright protection is that it must be an intellectual creation of the author (creative choices have been made). When asked whether this is plagiarism, one checks whether protected characteristics were copied. For the overall impression is considered if sufficient distinction has been taken from the original work. There is no "inspiration" here, this is plain plagiarism in my opinion.

Then only one escape remains, namely the parody exception. The ECJ has ruled that there must be a clear difference from the original and that the parody aught to be humorous / mocking. Miffy has previously run into a parody defense at the Amsterdam Court.

This court ruled that a coke-snorting Miffy was allowed. That was clearly a parody because of the great contrast with Miffy, tantalizing text and because as a whole it inspired laughter. The humor is not obvious to me this time, but maybe I am a little too attached to Miffy. (Source image: Twitter)

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IP quiz Trademarks

Puma is one of the bigger sports and lifestyle brands in the world. The core-business is the design, development and sale of (sports) shoes, (sports) clothing and accessories. In 1960, Puma registered an international trademark for a device designed in 1958: the formstrip. Since then, Puma has registered approximately 90 formstrip trademarks with validity in the Benelux or the European Union. Puma claims that this is a serial mark. Monshoe is a wholesaler of women's shoes and related products. The company designs and develops Monshoe shoes which it largely markets itself. Monshoe sells its women's shoes under the brands Shoecolate and Pearlz. The shoe Shoecolate is offered in various colour combinations. Puma claims that Monshoe infringes its well-known formstrip trademark. Monshoe contradicts this and states that the average consumer will not perceive the device of Monshoe on the sneakers as a trademark. And if the public will recognize a trademark in the decoration, it will not make the connection to Puma. According to Monshoe, the formstrip logo is not a well-known trademark within the meaning of the BVIE and the UMVo. There is no likelihood of confusion because the sign does not or hardly evoke any association with Puma among the public. In light of the above, who is right? Does this constitute decorative use or linking to a well-known trademark?

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