Koosh ball

From: Laura N. Gasaway <unclng[_at_]email.unc.edu>
Date: Thu, 31 Oct 1996 10:23:04 -0800 (PST)

     In my IP class we read the case OddzOn v. Oman in which the Copyright Office refused registration on the Koosh ball and the D.C. Circuit affirmed the examiner's finding that the ball lacked the requisite creativity and that the tacitility could not be considered in judging creativity since it was a functional aspect of a utilitarian object. The court did indicate that its holding did not preclude a finding in an infringement action that the KOOSH BALL is copyrightable, although there does not seem to have been such a suit.

     The court recognized that the KOOSH BALL is patented and that there is a tradmark in the name.

     My question is this: On new KOOSH BALL zipper pulls (the packaging says "Make zipping fun and easy!" whatever that means....), and the copyright notice is included with the date 1987 along with a 1994 copyright notice on the packaging.

     What do you make of the copyright notice? Is it fraudulent to incude the notice after the opinion upheld the refusal to register? I seem to recall a very recent case holding that falsely including a copyright notice did not violate sec. 43(a) of the Lanham Act's ban on false advertising.

Lolly
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Laura N. Gasaway			phone:  919-962-1049
Director of the Law Library &		fax:    919-962-1193
   Professor of Law			email:	laura_gasaway[_at_]unc.edu

Law Library, CB # 3385
University of North Carolina
Chapel Hill, NC 27599 Received on Thu Oct 31 1996 - 15:24:11 GMT