It could turn out to be a very merry Christmas after all for F+W Media and its Adams Media line, which faced a temporary restraining order and preliminary injunction from producing, marketing, and selling its big holiday book, the seasonal parody Elf Off the Shelf, which it anticipated could bring in more than $167,000 in profits. CCA and B, publisher of Elf On the Shelf, filed suit against F+W and some Adams staffers on June 24 in U.S. district court in Georgia. The staffers were dropped from the proceedings shortly afterwards. And on Friday Judge Amy Totenberg ruled that the plaintiff failed to make its case. In fact it did not bring any witnesses to the hearing in late August and submitted Web shots of the offending book along with a PW story from May that questioned whether the parody could knock a certain elf from its perch.
“The motion now before the Court calls to mind the old adage, ‘You can’t judge a book by its cover,’” she wrote in her 36-page order. “This time-worn advice instructs us 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 this ruling, Adams can return to actively promoting the book to its accounts on its ElfOfftheShelf.com Web site.