Page:Gund v. Swank.pdf/3

 In 1979, Gund created and began to sell a “Mugwumps” assortment, Style No. 9071, consisting of a lion, a dog, and a koala bear. The Mugwumps lion was an original Gund design. Gund obtained Copyright Certificate VA 24–059, effective May 2, 1979 for its Mugwumps lion. The Mugwumps assortment, including the Mugwumps lion, always had a sewn-in label which carried a copyright notice, the Gund name and the year 1979. The Mugwumps assortment, including the Mugwumps lion, was sold in the years 1979, 1980, and 1981.

Purchasers of Gund’s products preferred the Mugwumps lion of the three stuffed plush animals in the Style No. 9071 assortment. Gund’s designers then decided to make this a separate item in the Gund line, to revise and reshape the body of the Mugwumps lion so that its head would stay erect, rather than tilting forward or backwards, to have the arms become more frontally oriented by having arms which were separate insertions into the body, to reshape the pattern pieces and to form a sole on each leg. The result was called Roarry. The Roarry lion was first shown at Toy Fair in February, 1982 and was first sold in 1982. It came in three sizes, 11″, 7″ and a very large display piece. The Roarry lions, too, carried a sewn-in label which includes the Gund name, a copyright notice and the year date 1979.

The Roarry lions have been shown or referred to in Gund catalogs from 1982 through 1987. Approximately 30,000 of these catalogs are distributed annually to Gund’s customers. Gund intends to show these items in its 1988 catalog.

In March, 1983, Gund filed a copyright application to obtain a copyright certificate for Roarry. The year of completion stated in the application was 1979 and the date of first publication stated in the application was 1 February 1982. The application stated that no registration for the work or an earlier version of this work had been made in the Copyright Office, and no pre-existing materials were identified. This was returned to Gund by the Copyright Office with a notation that the year date was more than one year earlier than the date of publication. No registration number was placed by the Copyright Office on the certificate in the location provided for such number.

On April 8, 1986, Gund filed another application for Roarry. The year of completion stated in the application was still identified as 1979 and the date of first publication stated in the application was February 1, 1982. The application stated that no registration for this work, or an earlier version of this work had been made in the Copyright Office, and no pre-existing materials were identified. The application was accompanied by a letter stating that the year date of publication in the copyright application was correct. No attempt was made to change the alleged date of creation, and it was certified that the work was created in 1979. The registration issued as Registration No. VA 220–777, effective April 8, 1986.

On October 10, 1987, Gund, through its copyright counsel, filed in the Copyright Office a form CA which is utilized to correct or amplify prior registrations. This CA form makes the following corrections to the Roarry Copyright Certificate VA 220–777: (a) it changes the year of creation from 1979 to 1981, which is the correct year of creation of the Roarry lion; (b) it also changes the Roarry Certificate to state that there was a registration for an earlier version of the work, namely Mugwumps, which was the subject of Registration No. VA 24–059; (c) it adds the Mugwumps Style No. 9071 was the original version; and (d) it states that the material added in the Roarry version was “revised body shape and configuration.”

Roarry has been the subject of Gund’s cooperative advertising program with its retail store customers. It has been advertised, among other instances, by Lord & Taylor in the New York Times in 1984 and in the Saks Fifth Avenue 1983 Christmas catalog but not since. It also was advertised in the New Yorker, Seventeen and the Ladies’ Home Journal. It appeared in Gund’s 1984 and 1985 30-second television commercials which included approximately 20 animals as well as in advertising that