Cheap Versions of Bakugan Game Imported From Far East

Spinmaster have a popular game called Bakugan that is apparently not just popular with the kids, but also with importers and judges – see here and here.

The authorized distributors and trademark rights holders have been back in court. This time against a Mr Chai Omra who imported some 40,512 sets of Bakugan from China. The sets were impounded by Customs and the rights owner sued for their destruction and NIS 100,000 for copyright infringement. He also claimed trademark infringement, passing off and unjust enrichment.

Mr Omra claimed that these were legitimate sets and was parallel importing, so there was no copyright infringement or at least that he had a defense of not knowing that these were not authorized sets.

The rights owner noted that the ball was a different size, that there were Chinese instruction cards in the box, which are not provided in original sets intended for the Western market, and the bar codes were wrong, thereby proving that the sets did not originate with an authorized manufacturer.

In his ruling, Judge Zerankin dismissed the ignorance defense, noting that Omra had bee in court before for importing toys manufactured in the Far East, and had previously shipped 15,000 Bakuga sets as well.

The Judge ruled to rule NIS 20,000 for trademark infringement, NIS 40,000 for copyright infringement and NIS 40,000 for passing off. As there was no enrichment from this shipment, he rejected the unjust enrichment claim. In addition, he ruled a further NIS 40,000 legal fees.

The Case:  T.A. 43006-08/10 Spinmaster vs. Hai Omra LTD and Israel Customs Authority,  Judge Adi Zerankin, Haifa District Court, 22 September 2011

COMMENT

The applicant requested statutory damages of NIS 100,000 for copyright infringement. Importing copyright material is indeed copyright infringement. He is entitled to statutory damages for passing off or for copyright infringement, but I don’t believe is entitled to additive statutory damages for both. Once the total damage is NIS 100,000, it hardly matters. Still I would have expected damages of NIS 100,000 for copyright infringement and NIS 100,000 for passing off, then capped at NIS 100,000 as one cannot receive more than NIS 100,000 for a single infringing event.

I am also not sure where the statutory damages for trademark infringement come from.

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