Goodbye Cathy: Hello Kitty and Miffy settle copycat case

This Kat has been a fan of Hello Kitty since discovering her on a high school exchange trip to Japan many years ago. Therefore, she is most interested in the copyright proceedings involving Hello Kitty's friend Cathy the rabbit and the Dutch rabbit Miffy.

Hello Kitty is a popular children's character created by Japanese design company Sanrio. She is a little half-Japanese, half-English cartoon cat: small, rounded with a red bow between her ears and no mouth. She made her debut in 1974 and is now the face of a cartoon series and numerous merchandise spin-offs. Hello Kitty has become such a global phenomenon that she appears on everything from purses, stickers, jewellery and pen sets to toasters, televisions, clothing, credit cards and computer equipment all over the world.

Cathy is one of the friends of Hello Kitty. She debuted in 1976 and has similarly appeared in the cartoon series and on merchandise. Cathy appears as a white rabbit with upright ears, wearing a tunic which is the same colour as a bow between her ears.

Miffy is a small white female rabbit who was created by Dutch artist Dick Bruna. She first appeared in a children's picture book in 1955 with floppy ears and has been in her current form with upright ears since 1963. She is drawn in a minimalist style, with only a few lines and one or two primary colours. She has gone on to appear in approximately 30 more books (selling 85 million copies worldwide) as well as in a cartoon series and on merchandise such as toys, clothes and stationery.

Mr Bruna has made no secret of his disdain for all things Hello Kitty. In an interview in 2008 with The Telegraph, Mr Bruna stated that the Cathy character:

'is a copy [of Miffy], I think. I don't like that at all. I always think, "No, don't do that. Try to make something that you think of yourself".'

It came as no surprise to anyone then that Mr Bruna would eventually bring an action against Sanrio. Proceedings were brought in The Netherlands by Mercis Media BV (Mr Bruna's copyright management firm) on 26 August 2010. Mercis Media alleged that Sanrio's Cathy character infringed the copyright and trade marks of its Miffy character. Mercis Media sought a provisional disposition order for suspension of the manufacture and sale of Cathy character items and other terms.

On 2 November 2010, the Amsterdam Regional Court found in favour of Mercis Media. It ordered Sanrio: (a) to stop to any production, sale and marketing of Cathy character goods in the Netherlands, Belgium and Luxembourg; and (b) to pay €25,000/day if it did not comply, up to a maximum of €2m.

Sanrio appealed the decision. After the ruling in November 2010, it stated that:

'We object to this ruling and do not believe any copyright infringement took place, a view we intend to express legally ... At this point, we believe any impact on company earnings will be limited'.

Further proceedings on the merits were brought by Mercis Media, whilst Sanrio filed a counter claim seeking the Miffy trade mark to be removed from the register.

This Kat has learned that the parties have settled out of court. On 7 June 2011, the companies issued a joint statement announcing they had reached 'a worldwide settlement' of all pending actions. As part of the terms, Sanrio will no longer use the Cathy character and both will donate €150,000 jointly to the victims of the earthquake of 11 March 2011 in Japan rather than spend money on legal fees. Further, both Mercis Media and Sanrio will make considerable efforts to keep a respectful distance from each other’s characters.

The IPKat is saddened by the loss of Cathy, but is glad that the parties were able to reach an amicable settlement with a humanitarian element.

Merpel is all for merchandising and the legitimate exploitation of copyright and trade marks, but suggests that a possible IPKat toaster with a toast 'branding' option would be stretching the friendship ...

Japan's fair trade enforcers put the boot into JASRAC

The IPKat's Japanese friend and colleague Kaori Minami has just sent him this little piece of fascinating news from Japan. Writes Kaori:

"The Japan Fair Trade Commission (JFTC) issued a Cease and Desist Order against the Japanese Society for Rights of Authors, Composers and Publishers (JASRAC) on 27 February 2009, having found that JASRAC's method of comprehensive collection of royalties from broadcasters was a form of private monopolisation prohibited by the Antimonopoly Act (a brief English translation of the Order is obtainable from the JFTC’s website here)

JASRAC, a Japanese collecting society dealing with musical works, has almost a 100% market share.  It was the only collecting society for musical works until 2001, when a new law was enacted to reduce the requirements for operating a copyright management business in order to enable other collecting societies to enter the market. e-license Inc was the only company to go into this line of business with regard to broadcasting, but it has almost no such business at present.

According to the Order, all broadcasters are under an agreement with JASRAC, which is employing a method of comprehensive collection. By this method, a royalty is calculated by multiplying broadcasting business income by a fixed rate (1.5%). The actual number of musical works used by each broadcaster is not reported or reflected in the calculation. Broadcasters can pay the royalty on an individual use basis, but no broadcaster does so in that it is far more expensive than the comprehensive method. As a result, the total amount of royalty charged to the broadcaster will increase if it uses the musical works managed by other collecting societies and has to pay additional royalties to them. Although e-license managed musical works which were supposed to be popular, broadcasters rarely used them to avoid paying additional royalties.

JASRAC said in a press statement that they could hardly accept the Order. They are going to file an opposition and take every possible measure to against it. They basically say that the Order is wrong as it does not suggest any alternative collecting method, and amendment of the current method is not feasible by itself unless all the broadcasters agree to it. JASRAC also reportedly says that the current comprehensive method is convenient for broadcasters because they can avoid the time and cost of counting the number of broadcast musical works.

It is understandable to some extent that the current method is beneficial to users. JASRAC’s dominance was accepted for over 60 years, so it may not be easy for a competitor to enter into the market. Nevertheless, it would not be healthy to have no competitor in the market, and the Order may contribute to the transparency of the licensing business in Japan".

The IPKat says, we've been so preoccupied with the battle between collecting societies and competition authorities in Europe for so long that we might easily think this is a purely European problem. Manifestly it is not.  Merpel asks, how seriously can arguments based on convenience be raised in an age of white-hot technology in which it should be the simplest thing to have all relevant broadcast material logged, timed and weighed out in order to provide precise user data?

Teach yourself Japanese here

Broadcast yourself here

Japanese ISPs to take on downloaders

The IPKat has learnt from ZDNet that ISPs and copyright holders in Japan have reached an agreement by which Japan’s largest four ISPs will ban flagrant copyright infringers. Copyright owners will peruse lists of IP addresses downloading their works, and will then send that lists to the ISPs, who will warn the owners of the IP addresses and, if their behaviour doesn’t change, ban them. ZDNet claims there would be no privacy concerns because copyright owners would only need to look out for their own copyright works.

The IPKat says make no mistake, file sharing of copyright works is very naughty. However, he finds the idea of an agreement on withdrawing internet services stitched up between copyright owners and ISPs rather worrying. Surely it’s for copyright holders to enforce their own copyright and for ISPs to provide internet service unless their under a legal requirement to act as a police force as well?

Logistep and the Swiss dodge; Japan arrests virus writers -- for what?!

Info World has just informed the IPKat that Switzerland has warned Logistep, a company that tracks file-sharers for copyright infringements, that its tactics violate Swiss telecommunication law. Under Swiss law, the identity of a subscriber to an ISP can only be revealed for the purpose of a criminal case, not a civil one, since the IP address of a computer controlled by a subscriber is considered "personal" information. To protect its position, Logistep has asked Swiss prosecutors to open criminal cases. A civil action is then initiated against the file sharer while the criminal case is ongoing. At this point, it seems that prosecutors usually drop the criminal case and leave everything to the civil action. Logistep has until 9 February to respond to the Swiss Federal Data Protection and Information Commissioner.
Left: starting young - Logistep training its staff on the latest dodging techniques

The IPKat concedes that Logistep's tactics so far have been a neat way of dodging the Swiss telecoms laws. But file-sharing is a neat way of escaping the likelihood of an action for copyright infringement and that's also a sort of dodge.


Meanwhile, the IPKat's friend and fellow blogger Tomasz Rychlicki has sent him this link to an item from Sophos about the first arrest of a computer virus writer in Japan -- for copyright infringement. According to this news item:

"Police in Kyoto have arrested three men, who are said to have been involved in a plot to infect users of the P2P file-sharing network Winny with a Trojan horse that displayed images of popular anime characters while wiping music and movie files. The malware, which has been dubbed Harada in media reports, is believed to be related to the Pirlames Trojan horse which Sophos reported intercepting in Japan last year.

According to Japanese media reports, the three men have admitted their involvement in the crime. Masato Nakatsuji, a 24-year-old student, is said to have written the malware, while 39-year-old Shoji Sakai and Katsuhisha Ikema, 35, are said to have distributed the malicious code via Winny.

The Pirlames Trojan, which is believed to be related to the arrests in Japan, was distributed via Winny and displayed cartoon images.

"Normally you would expect malware writers to be arrested for breaking into computers with their code or damaging data, but in this case he is accused of breaching copyright because he used cartoon graphics without permission in his Trojan horse. Because this is the first arrest in Japan of a virus writer it's likely to generate a lot of attention and there will be many people watching to see the outcome," said Graham Cluley, senior technology consultant for Sophos. "Malware is truly a global menace, impacting on every user of the internet, and it is good to see police around the world doing their bit to tackle the problem." ..."

Noting that the effect of this virus was to erase shared files, the IPKat can't help wondering about the motivation of the virus writers. Were they just seeing what they could achieve, or did they have some inherent moral or economic ground upon which to oppose file-sharing?