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In Search of the Bogus Barney

Pointed Letters and Stiff Fines to Costume Shops Prove the Purple One's Purveyors Are Mighty Strict About the Trademark on Their Lovable Dinosaur

September 17, 1997|KATHRYN BOLD | SPECIAL TO THE TIMES

Barney, the big purple dinosaur beloved by the toddler set, is a no-show at kiddie birthday parties, and if the company that licenses Barney products has its way, any adults parading around in purple dino costumes will soon become extinct.

"We can't even have a dinosaur character that kind of looks like him," says Marsi Roberson, owner of Animal Crackers Entertainment in Lake Forest, which provides costumed characters for parties.

Roberson used to send a big purple dinosaur to entertain kids at birthday parties but stopped because she was afraid of being sued.

The Lyons Group and Lyrick Studios, which own the trademark and copyright for the dinosaur, have sent letters to costume shops around the country threatening to sue them for selling, renting or using costumes resembling Barney.

During the past four years, Lyons has sent 1,000 letters to shop owners and will continue to seek damages from those who have made money off its trademark, says Susan Elsner Furman, media relations manager for Lyons and Lyrick in Richardson, Texas.

"For a limited time, you may be able to settle this dispute for substantially less than you may be required to pay if Lyons proceeds with its lawsuit against you," states the letter from Lyons' attorneys.

The letter demands that shop owners pay Lyons a fee and orders them to surrender their purple dinosaurs. In April, the National Costumers Assn. Inc. reported that Lyons has sought damages ranging from $7,500 to $75,000 per shop.

"Lyons sent letters basically threatening them with financial extinction unless they paid them money. That's one mean purple dinosaur," says Hal Rosner, a San Diego attorney who specializes in copyright and costume law and represents about 40 costume shops that have received the letters.

Lyons has taken "aggressive" action against the owners to guard Barney's image and to protect children who "love and trust Barney," says Elsner Furman. That image has made Barney the No. 1-rated TV program for children younger than 6, she says.

Lyons does not license adult-sized costumes because it fears that even well-meaning adults might act in an un-Barney-like way, she says.

"We don't have the ability to control who's in the costume. There are a lot of things adults might do that Barney would not do. They might do something that might freak children out. They might remove Barney's head in front of the children, and Barney is real," she says.

Even if they are not identified as "Barney," all purple dinosaurs are an infringement, Lyons says.

"They can have a dinosaur costume. It's when it's a purple dinosaur that it's illegal, and it doesn't matter what shade of purple, either," Elsner Furman says.

Shop owners say they assumed the dinosaurs were legal because they purchased them from a reputable costume company.

"We were buying the costume as a purple dinosaur because these kids wanted it at their birthday party," says Vicki Williams, owner of the Rental Boutique in Santa Ana who received the letter last year. Williams sent Lyons the costume, and her insurance company recently settled out of court with the company.

"They wanted huge penalties. It's been a money grab," Rosner says.

Elsner Furman would not disclose the amount of the damages sought by Lyons but says the fees are based on how much money the shops "made off our legal rights." She disputes the notion that Lyons has profited from the settlements:

"It's not a money issue. We do not make money on this. If we did [want to make money], we'd license the adult costumes."

Williams and other owners argue that it would have been more Barney-like of Lyons to issue a cease-and-desist order before seeking damages.

Disney has issued similar orders without demanding money, they say.

Disney would not discuss details of its policy regarding costume trademark infringement, but the company does take steps to prevent unauthorized use of Mickey Mouse and the gang.

Costume shop owners say their gripe isn't with Disney, but with Lyons, which "feels every shop should be copyright experts," says Rosner.

Lyons responds that the company has taken out ads in costumer trade magazines warning retailers not to carry Barney look-alikes, and it's common knowledge in the industry that many trademarked characters are off-limits, Elsner Furman says.

"Barney's illegal and they know it," she says. "It's tacky to make a buck off someone's legal trademark rights. It's so un-Barney-like to do that."

*

The costume controversy has left some shop owners wondering when is a dinosaur just a dinosaur and when is it Barney?

Under so-called trade dress laws, they can be found in violation if their costumes capture the "look and feel" of a character protected by copyrights or trademarks, according to Rosner. "No one owns the right to an idea. It's that the costume can't be substantially similar," Rosner says. "Basically, if you have a dinosaur that's chubby with an idiotic smile, you might be capturing the total look and feel of Barney."

"If you ask any child in the world who a purple dinosaur is, they'll say Barney," Elsner Furman says. "Barney is love and innocence. It's ironic that some people would twist that around."

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