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Battle of the Gassy: 'Fartman' Doll Loses on Appeal

In the competitive and lucrative market for farting dolls, Pull My Finger Fred has won out over Fartman, with a federal appeals court ruling that Fartman infringed Fred and that Fred's maker is entitled to attorney fees.

The U.S. Court of Appeals for the 7th Circuit affirmed a jury award of nearly $300,000 in damages and $575,000 attorney fees to JCW Investments Inc. in its copyright and trademark infringement suit against Novelty Inc.

Both companies are in the business of making plush dolls that fart.

JCW, which does business as Tekky Toys, began selling Pull My Finger Fred in 1999. Fred is described as a white, middle-aged, overweight man with a receding hairline.

Fred, wearing a white tank top and blue pants, sits in an armchair with one of his fingers extended. Pull the finger, and Fred farts and makes a crude statement about his bodily noises.

Tekky has since developed a full line of farting plush toys. By March 2004 it had sold more than 400,000 dolls, the court said.

Novelty Inc. began selling Fartman in 2001. Novelty's president, Todd Green, admitted that his idea for Fartman was based on Fred, which he saw after visiting Tekky's showroom in Hong Kong.

Novelty also makes a Pull My Finger Santa doll.

JCW learned about Fartman in March 2002 and filed suit that July, the court's opinion says. The lawsuit alleged infringement of Fred's copyright and trademark infringement for Novelty's use of the phrase "pull my finger."

The jury awarded JCW $116,000 in damages for the copyright infringement, $125,000 for trademark infringement and $50,000 in punitive damages.

The U.S. District Court for the Northern District of Illinois entered judgment for JCW and awarded the company $575,000 in attorney fess.

On appeal by Novelty, the 7th Circuit affirmed the judgment.

The appeals court rejected Novelty's assertion that Fred was merely an amalgamation of common elements associated with a farting, crude-doll character.

Novelty had argued that Fred was not creative enough to warrant copyright protection and that the District Court protected the common elements, known as scenes a faire, which refer to the elements that are standard in the treatment of a given topic.

The 7th Circuit said there were many embodiments of the "farting doll" concept that could have been created, noting that Tekky had made several plush dolls that embodied the idea of a farting doll but that differed in details.

The panel said it had no difficulty affirming the District Court's judgment on copyright infringement. .

The appeals court said Tekky had a valid copyright in Fred, Novelty indisputably had access to Fred and the two dolls were so similar that the inference of copying existed even without direct evidence of copying.