By Dennis Abrams
The busy worker elves at F+W Media and its Adams Media line are undoubtedly breathing a heavy sigh of relief (and counting their more than $167,000 in anticipated profits). CCA and B, the publisher of the best-selling title, Elf on the Shelf, had filed suit in June against the media company asking for a temporary restraining order and preliminary injunction to halt the production, marketing, or selling of its big 2011 holiday book, the parody title, Elf Off the Shelf. But on September 22, Judge Amy Totenberg ruled that the plaintiff had failed to make its case. Indeed, CCA and B had not presented any witnesses at the hearing in late August and had simply submitted Web shots of the title in question along with a Publishers Weekly story regarding Adams Media’s intention to take aim at a certain all-too ubiquitous elf.
Judge Totenberg wrote, “The motion now before the Court calls to mind the old adage, ‘You can’t judge a book by its cover.’ This time-worn adage instructs to give more attention to the substance of a work than its shiny packaging. However, the Court’s ruling on the instant motion turns on whether in the madness of holiday shopping it is likely that the average consumer of Plaintiff’s book, possibly giddy from gingerbread lattes and twenty-four-hour canned holiday jingles, will be confused by the similarity of the book covers of The Elf on the Shelf and defendant’s purported parody, The Elf off the Shelf. Because Plaintiff has not met its burden of showing a substantial likelihood of such consumer confusion or successfully refuted Defendant’s fair use defense to copyright infringement, the Court DENIES Plaintiff’s motion.”
With that ruling, Adams can begin promoting the book on its ElfOfftheShelf.com website.