Penny may Pippi!

The Federal Court of Justice (BGH) decided the question of whether the famous literary character Pippi Longstocking, invented by Astrid Lindgren, is protected under competition law against use as a carnival costume. The discount retailer Lidl had sold corresponding goods. The BGH had already rejected a claim of copyright infringement due to the costume's similarity to the character.

The retail chain Penny advertised its assortment of carnival costumes with images of a girl and a young woman, both of whom wore a red wig with protruding pigtails and a T-shirt as well as stockings with a red and green striped pattern. The photographs were printed nationwide in sales prospectuses, on advance announcement posters in Penny branches, and in newspaper advertisements, and were made available to the public via the defendant's website. Furthermore, the images were included with the respective costume sets, of which the discount retailer sold more than 15,000 units.

The holder of the copyright usage rights to the literary character Pippi Longstocking believed her copyrights were infringed by the advertisement, but also asserted violations of competition law. She was of the opinion that Penny had modelled the photographs used on this character and had thereby exploited the reputation of Pippi Longstocking. For this reason, she was entitled to damages in the amount of a notional licence fee of EUR 50,000.

The copyright holder's claims for injunctive relief and damages had already been finally determined (we reported). On the defendant's appeal, the Federal Court of Justice (BGH) set aside the appellate judgment and dismissed the action.

With regard to the claims based on competition law asserted in the alternative, the Federal Court of Justice (BGH) remitted the matter to the Higher Regional Court (OLG) for a new hearing and decision. The OLG Köln dismissed the competition law action, whereupon the rights holder again appealed to the Federal Court of Justice (BGH).

Court Decision

The Federal Court of Justice (BGH) dismissed the appeal by judgment of 19.11.2015, Az. I ZR 149/14 (Press Release), thereby deciding in favour of the discount retailer.

Although a literary character could in principle fall under the protection of competition law performance rights, the court found that there was no imitation of the literary character Pippi Longstocking by taking on characteristics that are distinctive in competition law terms. In the case at hand, there were only such minor similarities between the characteristics that make up the literary character Pippi Longstocking and the design of the costume that no imitation was present.

Conclusion

The hurdles for a claim for injunctive relief and damages under the so-called competition law performance rights protection were too high here, since the characteristics that distinguish the literary character Pippi Longstocking are not limited to the hair and clothing of the literary character.