German Federal Court of Justice: Advertisement of Pippi Longstocking costume does not violate unfair competition law

The German Federal Court of Justice in its judgement of 19 November 2015 (case no. I ZR 149/14, so far only press release available) held that a carnival costume based on the well-known novel character, Pippi Longstocking, does not constitute an unfair imitation if there are sufficient differences between the features of the character and the costume. In a previous decision concerning the same dispute, the German Federal Court of Justice had already denied a copyright infringement by the given costume (cf. judgment of 17.07.2013, case no. I ZR 52/12).

In January 2010, the defendant, a discounter, used the images of a girl and a young woman dressed up in the carnival costume at issue in various advertising media. In the photographs, which were also shown on the respective costume sets, each of them wore a red wig with protruding pigtails, a t-shirt and stockings with red and green striping pattern.

After the German Federal Court of Justice had dismissed the action in 2013 insofar as a copyright infringement was concerned, the plaintiff continued to maintain that the defendant’s costumes violated provisions of unfair competition law.

The lower court had dismissed the action in this respect and had found that the plaintiff was not entitled to claims under sec. 4 no. 9 a) and b) of the German Act Against Unfair Competition. Even though the Pippi Longstocking costume constituted a look-alike imitation of the novel character, the case lacked particular circumstances giving rise to unfairness.

On revision, the German Federal Court of Justice has now held that a fictional character can indeed enjoy the protection of sec. 4 no. 9 of the German Act Against Unfair Competition. Nevertheless, in the given case there was no imitation. The similarities between the features determining the novel character of Pippi Longstocking and the costume were too little to amount to an imitation. An imitation of a novel character by adapting its competitively original features in a different product type (such as, for example, a carnival costume), was not subject to any lower requirements.

The Court further elaborated that the plaintiff was not entitled to claims on the basis of the general clause of sec. 3 par. 1 of the German Act Against Unfair Competition. It was not apparent that there was a gap of protection which would require the application of the general clause. The merchandising articles distributed by the plaintiff itself were protected under sec. 4 no. 9 the German Act Against Unfair Competition. Moreover, the plaintiff was free to apply for trademark or design protection for the appearance of its products. Finally, unfair competition law did not provide that a creator shall as a rule participate in every type of exploitation of his work.

The decision shows how valuable a trademark and design protection of a product can be in the case of “imaginary figures” created in literature in order to successfully proceed against free riders.

 

Further reading: CJEU: Offering for sale and advertising of designer furniture can infringe distribution right in copyright law