Good news for copyright infringers, or a Trapp to Tripp designers?

This posting is by Class 99-er Henning Hartwig.

German case law isn’t famous for awarding exorbitant damages in IP infringement matters. Now, it appears as if German Courts are even going into reverse: Just published, the German Federal Supreme Court has only recently decided, in Case I ZR 98/06 Tripp-Trapp-Stuhl, that copyright infringers are not obliged to render the whole profit made with the infringing copy even when imitating one-to-one the work-in-suit (in this case, the well-known Tripp-Trapp child's chair). The court found that, in such a case, the decision of the consumer to buy the copy (and not the original) was not based “entirely on the infringement” but rather on other factors such as “functionality” or “good price” of the copy. In short, the consumer is buying the copy not only because of it being identical with the original, but because it is cheaper.

This observation doesn’t seem to be new or surprising – why should I buy a copy if it isn’t even cheaper than the original? In fact, there is most probably no copy that isn’t offered at a better price than the original. But this is no excuse for courts to let copyright infringers get away with some of their profits. Should these people really be rewarded by being allowed to keep a part of their profits because they sell their copies for less (and clearly detracting buyers from acquiring the original), whereas infringers selling their copy at the price of the original (highly unlikely, though) would have to render the entire amount of their profits? And how can a court determine and weigh factors such as “functionality”, “low price”, “imitation” etc., factors that are decisive, according to the court, for calculating the percentage to be deducted from the profits?

The decision raises more questions than it answers – including the critical question to what extent this reasoning will be transferred to other IP rights. If German courts answer this in the affirmative, Germany would indeed find itself before a change of paradigm.

Magie's Unique Sugar Skull, Inked by Big Ant (1978-2008)

I was a happy little inkblogger last Friday night when I made it to the 4th anniversary group art show at Tattoo Culture in Williamsburg, Brooklyn.

Happy, because I got to meet the awesome Marisa Kakoulas from the fabulous Needles and Sins tattoo blog, along with the equally-cool Brian Grosz, who is also a major creative force behind the site.

And happy because I was in a bright room with art on the walls, created by talented tattooists, and I was surrounded by people with incredible body art.

But therein lies the conundrum: great tattoos, in a hip tattoo setting, are top quality and, despite Tattoosday's success, I am still reluctant to whip out the Polaroid digital camera when, for all I know, the ink around me may have been professionally photographed and featured in glossy tattoo magazines.

So I had resigned myself to leave sans photos, knowing I had a groovy time and was able to meet other tattoo writers, when I noticed a very interesting sugar skull on the back of a young woman's right arm. Voila:


Of course I chatted a long time with Magie before I asked her if I could snap a picture, so I learned a bit about the tattoo before I asked.

Magie Serpica is an artist and tattooist who works at the newly-opened Bound for Glory Tattoo Studio in Staten Island.


The shop was co-founded by Nick Caruso who also tattoos at Flyrite Studio in Brooklyn. One of Nick's tattoos appeared here back in July on Tattoosday.

One of Magie's paintings was hanging on the wall at Tattoo Culture:

(reprinted with permission of the artist)

We talked at length about tattoos, what she called an under-served market on Staten Island (they are the first full-custom shop) in the borough (no flash on the walls, please) and have a promising future ahead.

We also discussed how difficult it has been in the past to be a female tattoo artist, how frustrating it is not to be taken seriously, and how Kat Von D. and the multitude of tattoo reality shows have helped break down the stereotypes and allowed Magie, as a female artist, to receive more respect as an artist.

Like most tattoo artists, Magie is covered in ink, with no idea how many tattoos she has ("If you can still see skin, it's not enough").

The sugar skull in question was tattooed by Anthony Gregory, aka Big Ant, a Staten Island artist who tragically passed away last year after falling ill in Las Vegas (see the sad news reported here).


She had asked him to give her a sugar skull and she had a general idea about his style, so she gave him total artistic freedom. The end result was fascinating - a unique, almost post-modern interpretation of a classic tattoo design. The angled perspective and the depth to the eyes give this tattoo a greater three-dimensional feel than your standard sugar skull.

I also like how the rose is just as important as the skull, its stem wrapping around it and adding another layer of depth.

I thank the good people at Tattoo Culture for opening their doors and allowing me the opportunity to meet some great people.

A special thanks to Magie for sharing her awesome tattoo with us here on Tattoosday. Be sure to visit her in the new shop, Bound for Glory, in Staten Island.

Here's hoping we'll see more of their work in the future!

Brooke Shows Off Her Zombie Ninja Poo

On a sunny September afternoon, I met Brooke outside of Penn Station.

She had several interesting tattoos, and she offered this one:


She referred to it as "Zombie Ninja Poo".

On the inside of her right wrist, this tattoo was inspired by the goofy video droppings of the ninja characters in one of her son's video games, Ninjatown.

She exercised a little creative license and zombified the design. The result was an undead mass of animated, um, turds.

Thanks to Brooke for sharing this unusual tattoo with us here on Tattoosday!

¡Squirrel Libre!

I spotted Eliza at the Atlantic Avenue subway station several Saturdays ago.

She has several tattoos, but this one, on her right arm, seemed the most appropriate to share:


This is, of course, a squirrel, which was chosen because Eliza has the nickname of Squirrel.

Why Squirrel?

Eliza grew up in rural Arkansas in the Ozark Mountains. "When I was younger," she told me, "I hunted and shot squirrel".

Of course, I had to ask what squirrel tasted like. "Like chicken," she answered, and then clarified, "the dark meat".

As for the head of the squirrel, Eliza confirmed what I thought, the tattoo sports a Lucha Libre Mexican-style wrestling mask.


Eliza explained that she wanted the squirrel to be like her, kind of "sassafrass". I thought I knew what she meant, but not being familiar with rural American dialect, I asked her to clarify. "Sassafrass," she smiled, "is sorta wild and crazy".

The piece was inked at Southside Tattoo in Austin, Texas, by Michael Norris.

A hearty thanks to Eliza and her cool squirrel tattoo from us here at Tattoosday!

"Design for the disabled"

"Design for the Disabled" is the title of a feature in the current issue of the attractive and informative WIPO Magazine. This upbeat article extols the virtues of safety products, therapeutic toys and other items and concludes:

"The good news is that considering the needs of the disabled will ultimately lead to designs that are safer, more flexible and more attractive for all consumers. We are hopefully working towards a world where design solutions are found for people of all degrees of ability".

Sadly, considering that this is a publication from the international agency charged with the protection of the rights of creators and with encouraging innovative activity, there is no glimmer of any "design solution" for those unfortunates who either cannot protect their designs or are unable to enforce the rights they do possess, on account of the expense and difficulty of litigating them.

No-one would seriously disagree with the need for the sort of products discussed in this article, but the market for goods designed for special needs -- particularly among the swelling ranks of the aged and the infirm -- grows increasingly valuable and the activities of manufacturers and distributors are not solely motivated by the promptings of their social consciences.

Getting that colander habit

In Case R 887/2008-3 Normann Copenhagen ApS v Paton Calvert Housewares Limited, 11 August 2009, OHIM's Third Board of Appeal dismissed Normann Copenhagen's appeal against the Cancellation Division's decision that the registered Community design for its lovely collapsible colander (right) was invalid since it was not new.

Of note is the Board's assessment of the identity of the 'informed user' of a colander. In case you ever wondered:

"27 ... The informed user against whom individual character of the contested RCD should be measured is therefore whoever habitually purchases such an item and generally kitchen utensils and puts them to its intended use and has become informed on the subject by browsing through catalogues, visiting the relevant stores, downloading information from the Internet shops, ...

28 The informed user is generally not technically experienced or particularly interested in the technical design of colanders. He will therefore not pay attention to every detail of the device. Instead, he will undertake an overall view including inter alia the attractiveness of the design and the practicability of the device".

I wonder how many people habitually purchase colanders.

Annie Cherry and Bindlestiff Willy in New York City

I met Annie Cherry outside of Penn Station in early September. She was talking with Bindlestiff Willy. She had visible tattoos. He did not.

I approached them and introduced myself.

This is Annie:


And here is Bindlestiff Willy:


Both perform with a group called the Kansas City Society of Burlesque.

They had been in New York City performing out on Coney Island the previous weekend and were heading home.

Annie graciously allowed to photograph her two tattoos, juxtaposed nicely on her inner forearms:


She explained the one on her left arm, saying it was a shooting star, about to be launched from a slingshot. She said the tattoo represents creative inspiration and that it reminds her "not to take herself too seriously".


Incidentally, several weeks later, I met a woman with a similar tattoo, only justaposed differently on the left arm. I was shocked to see it, but she explained that it was also a band logo for the group Gogol Bordello.


The snake on her left arm represents knowledge to Annie, and a reminder that the destination is not always reached by taking the straight path.


Both tattoos were inked by Chet Duvenci at The Mercy Seat Tattoo & Art Gallery in Kansas City.

After talking about her tattoos, Annie informed me that her traveling companion Bindelestiff Willy had a couple of great tattoos, as well. They were inked at The Mercy Seat also, but by different artists.

Damian removed his jacket and rolled up his sleeves to reveal the tattoos on his upper arms.

The first is on his upper left arm:


If this classic pin-up girl looks familiar, scroll up to the top of the post and take another gander at the photo of Annie.



The tattoo is modeled after her. The phrase "Clowns need love too" is self-referential. This piece was inked by Scott Shickman.

Damian, who performs under the name of "Bindlestiff Willy," is a pantomime specialist who does a great Charlie Chaplin routine. The pun in his stage name combines the "bindle stick" commonly carried by hobos and tramps (in the Chaplinesque sense) and the raunchiness of "stiff Willy".

His second tattoo, on the right arm, is a portrait of Charlie Chaplin's "Little Tramp" were he still alive. Of course, as the 1889 implies, Chaplin is a skeleton today, so the traditional tattoo takes a macabre turn.


This piece was done by John Monk.

A big thanks to Annie and Willy for sharing their awesome tattoos with us here on Tattoosday!