Wimpy Kid, Inc., the corporation that owns the trademarks and copyrights for the highly successful “Diary of a Wimpy Kid” series (“DOAWK”) filed suit in Massachusetts this week against Antarctic Press, a Texas company that is publishing a series called “Diary of a Zombie Kid.” Wimpy Kid’s complaint alleges trademark, trade dress, and copyright infringement, among other claims. Wimpy Kid is owned by Jeff Kinney, the author of the successful DOAWK series about a hapless kid surviving middle school. Over fifty-two million copies of the books have been sold in North America and each climbed to the top of the New York Times Bestseller list. Wimpy Kid has parlayed the success of the books into other branded merchandise, including clothing, toys, games, puzzles, and card games. The DOAWK series has also spawned two successful major motion pictures, which together have grossed more than $115 million in the United States alone. In addition to the six books in the series, Wimpy Kid and its publisher has written and marketed two editions of a book that accompanies the movies and two editions of a DOAWK themed do-it-yourself guide.
Antarctic Press published its book “Diary of a Zombie Kid” on or about August of 2011, which chronicles the misadventures of a middle schooler with a “zombie virus,” and is selling it nationwide through major retailers like Barnes and Nobles and Amazon.com. “Diary of a Zombie Kid” has also transported (or whatever zombies do) itself onto the New York Times bestseller list. According to Wimpy Kid, Antarctic Press has intentionally designed and titled its book, “Diary of a Zombie Kid” so that it looks just like the “Diary of a Wimpy Kid” series and consumers will be confused into thinking it is simply the latest offering from Wimpy Kid, Inc. The covers and spines of both series use similar colors, type styles, hand-drawn characters, and other artistic elements and, I have to admit, look a whole lot alike. Having had three kids that have loved the DOAWK series and having picked up these books lying around my house for the last five years or so, I am something of an lay expert on what they look like. In my admittedly unscientific poll of my children, they found the two covers to be confusingly close and said they would have assumed that Jeff Kinney wrote the zombie book too. No doubt the Zombie folks will counter with a parody defense and it remains to be seen if this will fly but the Wimpy Kid has made a pretty good opening salvo.