Furry porn, NY style; Marine Rescue - the final word?

Jeff John Roberts (McGill, Canada) has sent the IPKat this curious news item from the New York Post and penned by Ikimulisa Livingston, concerning the use of counterfeit Bob the Builder and Barney the Dinosaur costumes (among others) for use in so-called "furry porn".

Right: wearing nothing but a fur coat, this kitten just wants a little fun ...

In short:

"A Queens man who peddled bootleg Barney and Dora the Explorer costumes - thinking they'd be used in skin flicks - has been busted for trademark counterfeiting ...

Julio Quevedo, 43, thought he was selling his furry get-ups to a porn-film producer ... Instead, the buyer was an undercover detective with the Queens District Attorney's Office.

Quevedo's sleazy scheme surfaced last year, after the DA's office was contacted by an official with Hit Entertainment ...

The company is the licensed trademark holder for the big purple dinosaur Barney, Bob the Builder and other favorite animated children's characters, and suspected that Quevedo was illegally selling knockoffs of their adult-sized costumes.

Left: Fred's erotic furry porn fantasy turns to frustration as he realises he's sewn into the suit and can't get out ...

In November, an undercover investigator called Quevedo asking to buy a Bob the Builder costume. A meeting between both sides was set up in Kew Gardens - in front of the DA's office - and the hard-hat-wearing cartoon figure was handed over for $250 in cash, officials said.

All along, Quevedo was under the impression his custom-made costume would be used in a pornographic film ...

Then another undercover posing as the first one's wife told Quevedo that the pair needed other costumes for more risqué movie roles.

The female investigator was finally led to a storage unit on Saturday.

There, she had an array of other costumes to choose from for the supposedly erotic film - including Thomas the Tank Engine, the Tasmanian Devil, Superman and Scooby Doo.

The costumes were all rip-offs of trademarked merchandise ...

"There isn't a child around who doesn't watch the exploits of Dora the Explorer, Bob the Builder, Barney and Scooby-Doo," said DA Richard Brown. "To corrupt the image of these popular cartoon characters or have individuals of unknown backgrounds dressed in cheap-looking costumes in close proximity to young children is particularly troublesome."

Quevedo allegedly told cops after his arrest that he and his family members have been selling the cartoon costumes for about four years and they're imported from Peru, where the defendant's father-in-law makes them in a factory.

Quevedo could go to jail for up to four years ...".

The IPKat notes that these were criminal proceedings, but the report does not clarify whether they relate to offences under trade mark law or under the general criminal law. The practical difference is whether the use of genuine, licensed costumes in these circumstances would also be a criminal offence. Merpel wonders whether, if civil proceedings had been brought on these facts in the European Union, we would have had an example of damages under Article 13(1)(a) of the IP Enforcement Directive (Directive 2004/48), which requires account to be taken of

"all appropriate aspects, such as the negative economic consequences, including lost profits, which the injured party has suffered, any unfair profits made by the infringer and, in appropriate cases, elements other than economic factors, such as the moral prejudice caused to the rightholder by the infringement".

Michael Burchill's battle with Marine Rescue has featured before on the IPKat weblog (see here, here, here and here). The battle appears to be over, giving him some cause to celebrate.

In short, proceedings were served on Mr Burchill in September 2001, in which various intellectual property infringements were alleged.

Above right: "Celebration", a mixed-media work from Anton Art Gallery

Marine never got around to pursuing its claims, but nor - until this week - has Burchill managed to rid himself of them. He writes:

"The deadline Unless Order against Marine Rescue Technologies Ltd issued by Warren J on 19 Feb passed without a murmur from the other side or their lawyers ..., who failed to attend the hearing on the 19 Feb and failed to respond to four pieces of correspondence prior to the hearing.

The Unless Order says:

1. The Claimants within fourteen days comply with the reinstated standard disclosure order as directed by Mr Justice Warren on 18 December 2006

2. Unless the Claimants comply with paragraph 1 above within the time specified, their claim be struck out without further order. ...

So IS THAT IT? Can I go to press? Did a LIP [litigant in person] win ...? Can I apply to publishers for an advance on the story of five and a half years in court which finished with a whimper? OR am I missing something - will the UNLESS order become an OK LETS TRY AGAIN ORDER?".

The IPKat is pleased that Mr Burchill can breathe freely again. He is however sad that none of the legal magazines - unless he has missed something - has had anything to say about this, in the context of case management, uses and abuse of legal process or the plight of small businesses faced with the extended threat of litigation. He knows that they read this blog and hopes to see them respond. Merpel says, bet they won't. They're only interested in the news and, from their vantage point, they may see so many instances like this that they just don't consider it worthy of comment.