Copyright infringement of My Little Pony?

Copyright infringement of My Little Pony?

The sparkling eyes, the front leg slightly bent and the chubby childlike proportions: these are some of the features of My Little Pony protected by copyright. A competitor who launched a similar toy pony was sanctioned in preliminary relief proceedings. The competitor infringed the copyrights of the creator and conducted “slavish imitation”. An injunction order was granted. Dutch Intellectual Property lawyer Hidde Reitsma comments on this decision.

 

Preliminary relief proceedings in Dutch court

Toy manufacturer Hasbro is the creator of My Little Pony, which it produces since 1982. Simba, a competing company, also sells a toy pony, which will hereafter be referred to as “Simba-pony”. The toy ponies resemble strongly, reason why Hasbro has summoned Simba to appear in preliminary relief proceedings. Hasbro requested an injunction to stop Simba from further infringing the copyrights of Hasbro regarding My Little Pony and to stop to commit slavish imitation. The claims are awarded partially and both parties appeal.

My Little Pony: result of independent creative effort

The Court of Appeal firstly has to determine if My Little Pony can be qualified as a “work of art” which is protected under Dutch copyright law. The Court of Appeal considers this to be the case because My Little Pony is an original work and bears the artistic choices of the creator. The Court gives the following reasoning:
“My Little Pony has some characteristic features like the childlike chubby unrealistic proportions, pastel colours, long wavy hair in a contrasting color with glitters, the front leg slightly bent (“ready to play”) and the friendly facial expression (big sparkling eyes with long lashes). Because of these elements together it has to be concluded that the pony is the result of independent creative effort.”

Court of Appeal: Infringement of copyright

According to the Dutch copyright law the copyright of Hasbro is infringed when the there is substantial resemblance between the Simba-pony and the protected work, in this case: My Little Pony. The Court of Appeal judges that the resemblance is striking and that the general appearance of both ponies is the same.

Wrongful act: slavish imitation

Besides enforcing ones copyright, a creator of a work can also enforce its right by action arising from a wrongful act, more precisely “slavish imitation”. In principle the imitation of works that are not covered (any longer) by copyrights or other intellectual property rights is legal. When the imitation causes confusion among the consumers, however, the imitator can be held liable if he did not take adequate measures to prevent or limit the confusion between the original and the copy. In this case the Court of Appeal considered confusion between the ponies to be likely and held Simba liable under wrongful act as well as infringing the copyrights. It was in Simba’s power, after all, to avert confusion by simply making different design choices.

Hidde Reitsma - Advocatenkantoor AMS Advocaten
Hidde Reitsma Hidde has a varied consultancy and litigation practice, focusing on corporate law and insolvency law. He frequently acts in proceedings before the Enterprise Chamber of the Court of Appeal in Amsterdam and in cases on directors’ liability. Hidde also advises on drawing up and negotiating contracts, mergers and acquisitions and joint ventures. Follow Hidde also on Google or LinkedIn. Hidde is available via e-mail and +31 (0)20-3080315.
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