Trademark Tussle: When Elves Land on the Naughty List

'Tis the season for a Christmas … lawsuit? Yes, that's right. This year, Santa's workshop is abuzz with more than just toymaking. Indeed, instead of focusing on their mischievous escapades of making snow angels in flour on kitchen counters across the country, those impish little elves have become the protagonists in a very different kind of story.

CCA and B LLC, the company behind the "Elf on the Shelf" book, merchandise and the joy (or angst) of children everywhere, has found itself in a legal kerfuffle with Elena Jenkins (aka Elena Popova). The complaint, filed in the U.S. District Court for the Northern District of Ohio, accuses Ms. Jenkins of willfully infringing CCA and B's ELF ON THE SHELF® trademarks and the copyrighted images of those mischievous elves without permission. On its wish list, CCA and B is asking for an injunction, monetary damages and destruction of all of Ms. Jenkins' rogue elves.

For those in need of a quick refresher, trademark law, under the Lanham Act, protects brand names and logos used on goods and services. The goal is to prevent consumer confusion or false association with someone else's goods or services. On the other hand, copyright law protects original works of authorship, such as the illustrations that bring the Elf on the Shelf to life.

According to the complaint, despite having been previously warned back in 2021 to stop selling her allegedly infringing wares, Ms. Jenkins has not only continued to sell "strikingly similar" elf dolls, but she is also selling them under the ELF ON THE SHELF® trademark. If the sum of CC and B's claims was its copyrighted works (i.e., the look of the elves), many would be more eager for a decision on what concepts of a Christmas elf are protectable under copyright law. But alas, Ms. Jenkins' alleged use of the ELF ON THE SHELF® trademarks, if true, could be that rare lump of coal in CCA and B's stocking that helps it to get everything on its legal wish list.

Stay tuned, and remember the moral of this story: Respect the intellectual property of others because there is always someone who knows whether you have been bad or good – so, be good for goodness' sake!