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Sunday, January 20, 2008
Attorneys for Gabbibo Respond

Last month, I blogged about an unsuccessful lawsuit brought by Western University University in an Italian court against Mediaset, an Italian company, for trademark and copyright infringement, claiming that Gabibbo, the mascot for the satirical show "Striscia la Notizia," is a carbon copy of Big Red, the Western Kentucky mascot since 1979, and which is depicted to the left. The short post excerpted a post by CNBC's Darren Rovell, which provided a preliminary description of why Western Kentucky lost the lawsuit.

Italian attorneys for Gabibbo's creators read my post and wrote me a letter. The letter goes into depth about the legal issues involved in the case, from the perspective, of course, of those representing Gabibbo. Below are the relevant portions of their letter, as well as the 8 images contained in the letter (the first set of four images are of Gabibbo, the second set displays images of four characters who are arguably similar to both Big Red and Gabibbo).

* * *

[On December 11, 2007, the Judge of the Court of Ravenna, division of Lugo] ruled that both the Big Red (whose relevant exploitation rights within the European territory has been licensed, on a non-exclusive base, from company CEI to company Adfra together with the rights of other 56 American universities' mascots for the lump sum of US$ 7,500!) and Gabibbo may be protected by the law on copyright with regard to and within the limits of their personal features being much different the one from the other: sport mascot the former, TV character the latter (“a very weak personality the former, a stronger one the latter”).

The esthetic forms have been accurately assessed, following a long and sophisticated investigation, recognizing relevant differences described in the decision.

From such investigation, it appeared that the graphic image of the Big Red does not show the minimum creativity required in order to protect it and that its external form recalls the graphic idea of puppets already well known in the cartoon world (Barbapapa, both morphological and conceptual identity ten year younger than the American mascot; Elmo, Gossamer, Jelly Belly, in addition to all “blobs” we deem useless to mention, without assuming any original feature.

Plagiarism has therefore been excluded, recognizing that the only element of contact between the two characters may be identified in their “external form” which, in any case, as above reported, has no “identifying feature” and is, on the contrary “repeating an already known idea”.

These are the true facts. Incredibly, the news – not yet confirmed – are circulating about a possible “appeal” against this decision. RTI, Striscia la Notizia and Gabibbo have nothing to fear from a possible appeal, as they have always been sure about the positive issue of the first grade. Of course, we do hope that after a deep reassessment of the issue ADFRA, WKU and CEI renounce to initiate again a risky and groundless lawsuit bereft of any reasons at least in fact and in law.

Stefano Longhini, barrister
Direzione Affari Legali
Reti Televisiva Italiana SpA


For what it's worth, I have some empirical data to share. I showed this post to my 19-month old daughter (who loves Elmo), and asked her, "Where's Elmo?" She immediately pointed to the far picture on the right with no hesitation whatsoever. This data tends to suggest that there is a clear recognizable distinction between Big Red/Gabbibo and Elmo.

Blogger Rick Karcher -- 1/21/2008 11:35 AM  

Mama Mia!

Anonymous Anonymous -- 1/25/2008 7:00 AM  

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