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Intellectual Property

Cartoon character copyright no laughing matter

You can’t just “borrow” someone else’s property without permission and the same rule applies to copyrighted property, says Toronto copyright lawyer Taras Kulish.

Kulish says recent headlines about an American company being slapped with a cease and desist order over its plans to build two themed restaurants based on characters and images from the children’s cartoon series SpongeBob SquarePants are a clear example of infringement.

“People are laughing but it really isn’t funny from a legal owner's perspective,” says Kulish, a senior associate at Steinberg Title Hope and Israel. “They can call it borrowing but in my view, it’s stealing.”

The controversy arises out of plans by IJR Capital Investments to open a chain of seafood restaurants called the Krusty Krab, similar to the fictional restaurant featured in the TV show. 

In the program, the lead character, SpongeBob SquarePantsworks at the underwater restaurant with the owner, Krusty Krab. The building itself is in the shape of a lobster trap.

IJR was to open one restaurant in Kemah, Texas and a second in Los Angeles before copyright owner Viacom International, which owns Nickelodeon , slapped them with a lawsuit for infringement.

A Houston judge later pulled the plug on the plans, saying there was a clear infringement.

Previously the Houston Chronicle reported IJR’s owner Javier Ramos defended the plans, saying Viacom missed the 30-day window for objections at the United States Patent and Trademark Office (USPTO).

However, Kulish says that’s rubbish: “Regardless of what happens at the USPTO, Viacom still has copyright protection under common law and they have a strong position.”

He says the fact there’s another Krusty Krab-themed restaurant in Palestine, which hasn’t been challenged, is irrelevant.

It also features a lobster trap design and makes no secret of its inspiration.

The owners say they built it to give local kids a taste and glimpse of the ocean that they can’t get in real life because Palestine is land locked. They want to open another restaurant in Gaza.

“There is the risk that the Palestinian restaurant will dilute the value of the copyright,” Kulish tells AdvocateDaily.com. “But that’s a jurisdiction where there are effectively no rules and no opportunity to enforce a judgement. Here, IJR planned on opening a restaurant in America where American rules apply."

Copyright and trademark owners must register in each jurisdiction where they want to establish their rights, he says. While laws vary from jurisdiction to jurisdiction, recent amendments and co-operation globally are bringing different regimes into alignment.

“They (IJR) can’t just point to Palestine and say, ‘Well they’re doing it there,’” he says. “It’s a like a speeding ticket. You can’t argue everyone else was speeding so you shouldn’t have to pay.”

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