Puerto Rican Frog Doll Knock-Offs: Interlocutory Appeal of Preliminary Injunction

In Coquico, Inc. v. Rodriguez-Miranda, 2009 WL 903954 (1st Cir. April 6, 2009) , the First Circuit Court of Appeals tackled in a copyright infringement action the important issue of whether a preliminary injunction stopping the distribution of stuffed plush dolls depicting the coqui comun - a common brown frog in Puerto Rico - should be upheld.   [A coqui is a frog (anuran) - this is not to be confused with the Puerto-Rican coquito, my favorite Christmas cocktail made from fresh coconuts].

When attorneys are asked to discuss the difference between the federal and state forums in New York, the availability of interlocutory appeals is usually cited as a difference.  An "interlocutory" appeal is one brought prior to the conclusion of the litigation (final judgment).  In litigation practice in the courts of New York State, many of the trial court's interlocutory rulings may be appealed to the Appellate Division.   In federal practice, appeals ordinarily lie only from final judgments.  28 U.S.C. 1291. That means if a U.S. District Court judge makes a series of adverse rulings, one may be forced to try an entire case before appealing any particular adverse ruling.

But certain interlocutory appeals are permitted.  For example, Rule 23(f) of the Federal Rules of Civil Procedure permits federal courts of appeals to consider interlocutory orders granting or denying class action certifications.   28 U.S.C. 1292(a)(1) authorizes interlocutory appeals from grants, continuances, modifications, refusals or dissolving injunctions, or refusals to dissolve or modify injunctions.

In Coquico, the First Circuit reviewed the decision from the District Court of Puerto Rico granting a preliminary injunction against a producer of stuffed frogs that produced coqui comun frogs substantially similar to those of Coquico's copyrighted frogs.   The defendant argued that since the coqui comun is found in nature, the only "original" elements were a brass ring, a Puerto-Rican flag on the coqui's underbelly, and a hang tag.   The defendant relied on the merger and scenes-a-fair doctrines.

The First Circuit rejected the defendant's arguments.  It found that the following element were protected:  1. distinctive stitching pattern; 2. idiosyncratic color combination; 3. pose; 4. placement of Puerto Rican flag on underbelly; 5. dimensions (combined with other elements).

The court was persuaded by the plethora of plush frogs produced by plaintiff.   The poor defendant did not even get its frog nature photos into evidence to support its claims that its coqui comun was just art imitating nature.