Jean Berko Gleason, an expert in language learning by children, created a language instructional tool known as “The Wug Test,” a set of flash cards featuring a creature known as “The Wug.” Gleason owns a copyright registration on the collection of flash cards, as well as federal trademark registrations that include the “Wug” logo and/or the trademarked phrases “This is a Wug” or “Wug Life.” Gleason says that Lauren Gawne and Gretchen McCulloch, who run a business known as “Lingthusiasm,” have infringed her copyright and trademarks and have actively encouraged others to do the same. Gleason asserts that the defendants approached her in March about obtaining a license to sell merchandise bearing the “Wug” character and trademarks, but that the parties never reached agreement. Nevertheless, Gleason discovered Lingthusiasm products for sale bearing the character and marks. In response to a cease and desist letter, Lingthusiasm asserted that Gleason’s marks were unenforceable and her copyright was invalid. Lingthusiasm subsequently published a statement on is website asserting that the WUG is in the public domain, and continued selling WUG-related products. The site includes a lengthy note asserting that the Wug character was created in 1958, at a time where copyright did not come into existence without certain legal requirements being fulfilled, and that it therefore entered the public domain. It further asserts that the WUG character can be used as a decorative, ornamental element without infringing the trademark registrations. Finally, the website provides a downloadable picture of a WUG from Gleason’s initial 1958 publication, and encourages others to use that 1958 version for the creation of new WUG works. Gleason also says that someone, believed to be friends and allies of Lingthusiasm, began altering the Wikipedia page about Gleason to change the reported dates of Gleason’s publications of the Wug characters. Gleason issued a take-down notice to retail site Redbubble.com relating to Lingthusiasm WUG products being sold on that site, and Lingthusiasm delivered a counter-notification contesting the removal of the products. Gleason asserts federal and common law trademark infringement, copyright infringement, palming off under Massachusetts common law, unfair competition and false designation of origin. She further asserts that the infringement was willful.
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