Gaga over Labubu
Labubu, first a mystical book creature and creation of Kasing Lung, recently took the world by storm as a collectible plush toy, developed and marketed by Pop Mart. The appeal has been driven by limited-editions, themed-collections and blind box buys. Social media influencers have added to the hype and status of the toy by unveiling blind box purchases on social media networks. As a result, Labubu toys have gained mass popularity and are being traded as commodities of considerable commercial value.
This frenzy has naturally attracted a slew of global intellectual property infringements with many misusing the image and likeness of the Labubu toys and some even producing counterfeit dolls.
Unless you are a trade mark boffin, it may be somewhat perplexing how the image and likeness of an inanimate and fictional creature can be deserving of protection in terms of the law. Plainly stated, the design of the toys, which includes the look and feel, are eligible for protection. In South Africa, that protection includes, in particular, the reputation and goodwill that the owner of the toys has acquired in the design of the toys, which incorporates its likeness or imagery. The unauthorised use of the design of the toy in trade will likely create a misrepresentation that the user is connected in trade with the owner of the Labubu toys and the LABUBU name or trade mark. The risk of harm caused by this confusion is actionable as passing-off and may even attract a claim for damages.
The name, image and likeness of the toys are not to be confused with personality rights infringements, where personality rights are only enjoyed by humans. The misuse of the name, image or likeness (NIL) of a person, particularly a celebrity, could attract a passing-off claim and a claim for infringement of personality rights, which marks the distinction between NIL rights for inanimate characters and living people.
Indeed, the likeness of Labubu toys may also qualify for protection as a well-known trade mark to the extent that the likeness is distinctive in a trade mark sense. In other words, the likeness or image of the toy should be perceived as a badge of origin, conveying to consumers that toys or other goods reproducing or imitating that likeness emanate from the Labubu owner.
Ultimately, these collectible playthings are the subject of intellectual property rights and misusing those rights is akin to playing with fire.
If you have any intellectual property concerns regarding ownership or use of such rights, Adams & Adams would be pleased to assist.
Kim Rampersadh
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