Eleventh Circuit Finds Two White Plastic Bear Pacifier Holders Not Substantially Similar
Toys "R" Us came out the winner in a copyright infringement case brought by Baby Buddies over its pacifier holder (which attaches a pacifier to a baby's clothing via a tether). Both Toys "R" Us' and Baby Buddies' pacifier holders consisted of a white plastic bear attached to a ribbon that forms an "X" shape behind the bear. Baby Buddies' ribbon was aquamarine and Toys "R" Us' was light mint-green.
Toys "R" Us had sold the Baby Buddies pacifier holder but later decided to produce its own and hired a consultant to design several different holders. The consultant later sent a copy of the Baby Buddies pacifier holder to a subcontractor with a note stating:
I need a new animal design. The buyer likes this bear but I do not want to produce the same exact thing. Can you please work on a similar design?
The subcontractor responded with pacifier holders featuring a bear as well as an angel, a duck, a bunny and balloons.
The District Court granted summary judgment to Toys "R" Us on two of Baby Buddies' three counts. After separating the protectable elements from the unprotectable elements (the latter including the tether, the color of the tether, the clip attaching the holder to the baby's clothing and the bow) leaving only the plastic molded bear, the District Court concluded that there was no genuine issue of fact as to infringement.
The Eleventh Circuit affirmed the grant of summary judgment based on a similar analysis. The court first concluded that the bear and bow were eligible for copyright protection although it ultimately held that the bow fell short of the admittedly low threshold of originality required for copyright protection. As for the bears, after examining the features of the bears in minute detail, the court concluded that no reasonable jury could find that they were substantially similar. (Pictures of the two pacifier holders are attached as exhibits to the court's opinion.)
The case cite is Baby Buddies, Inc. v. Toys "R" Us, Inc., No. 08-17021 (11th Cir. July 22, 2010).
