Tabberone is pronounced tab ber won not tay ber own

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This information is taken directly from the court opinion. It is not taken out of context nor is it altered.

From Yankee Candle Co. v. Bridgewater Candle Co., 259 F.3d 25 (1st Cir. 2001)

Whether there is substantial similarity between copyrightable expressions is determined by the "ordinary observer" test. Concrete Mach. Co. v. Classic Lawn Ornaments, 843 F.2d 600, 607 (1st Cir. 1988). "The test is whether the accused work is so similar to the plaintiff's work that an ordinary reasonable person would conclude that the defendant unlawfully appropriated the plaintiff's protected expression by taking material of substance and value." Id. (quoting Educ. Testing Servs. v. Katzman, 793 F.2d 533, 541 (3d Cir. 1986)). The determination of whether an allegedly infringing label is substantially similar to its alleged model or influence is not so simple a task, however, as a strict visual comparison of the two items. Any comparison between the two works must be informed by a key theoretical foundation of copyright law: that "[i]deas cannot be copyrighted," id. at 606 (citing Harper & Row, Pubs., Inc. v. Nation Enters., 471 U.S. 539, 547 (1985)), and therefore that "[a]n artist 'can claim to own only an original manner of expressing ideas,' not the ideas themselves," id. (quoting Cooling Sys. & Flexibles v. Stuart Radiator, 777 F.2d 485, 491 (9th Cir. 1985)). Because of this dichotomy between "idea" and "expression," only the "protected expression" is relevant to an evaluation of substantial similarity. Leigh v. Warner Bros., Inc., 212 F.3d 1210, 1214 (11th Cir. 2000). We must first consider, then, to what extent the Yankee labels are protected expression.