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It’s a well-worn tactic in Hollywood legal circles: He who growls the loudest wins — or at least intimidates the other to exit stage left with his tail between his legs. While countless suits have been fended off this way, the strategy only works if you have teeth. That’s why Pets.com is showing its canines in a suit filed last month in San Francisco, against comedy writer Robert Smigel, creator of “Triumph, the Insult Comic Dog.” This dogfight, though, is actually between puppets. Triumph, a raunchy-talking brown-and-black puppet who has developed a cult following in recent years, had some nasty things to say on national television about the white Pets.com “sock puppet” popularized in the company’s “Because Pets Can’t Drive” commercials. Pets.com fired back in federal court. In addition to Triumph’s alleged slurs against the sock puppet, Pets.com’s complaint attacked Smigel’s appearances on “Inside Edition” and other national programs, on which Smigel reportedly claimed the sock puppet was a pale copy of Triumph. The complaint for defamation and trade libel outlines the differences between the two puppets, painting Triumph as a cigar-smoking rubber dog that uses vulgarity and physical violence and the sock puppet as “clever” and “family-oriented.” Still, they are both wise-alecky dog puppets. And while Triumph debuted on “Late Night With Conan O’Brien” three years ago and the Pets.com puppet in television ads last August, neither takes the prize for originality. If “Lambchop,” Shari Lewis’ sarcastic sock puppet from the 1950s, came back from the grave, he would probably be able to take a big bite out of both the feuding puppets’ rumps in court. That’s one of the funny things about suits involving comedy routines: As everyone in Hollywood knows, there’s no such thing as an original thought. This is why comedians rarely rely on copyright protection for their routines; copying, imitators and parodies are a given. If they weren’t, shows like “Saturday Night Live,” for which Smigel has been a writer, would never have such long runs. Smigel got his own baptism by fire in the comedy wars in 1997, when he created a cartoon for “SNL” that so lambasted General Electric, NBC’s parent company, that it was cut from reruns of the episode on which it appeared. Suffice to say Smigel likely is not intimidated by the sock puppet brouhaha (and if he is, he isn’t talking about it). Pets.com has its outside counsel on a leash. Kevin James, an entertainment litigation partner with Crosby, Heafey, Roach & May in Century City, who is usually more than happy to speak with the press, referred reporters’ calls to the top dog at Pets.com. Julie Wainwright, the company’s chairwoman and CEO, issued a terse statement that Pets.com “did not initiate” the dispute but felt compelled to “respond to a letter from Smigel’s lawyer that threatened legal action against us.” The cease and desist letter claimed Pets.com had illegally used Smigel’s character, Triumph the Insult Comic Dog, and infringed on his trademark. While lawyers for both sides were sorting that out last month, Triumph took to the airwaves and announced on Late Night that he was the “king” and that the Pets.com sock puppet was a “rip-off.” That, according to Wainwright, pushed the company to file a lawsuit to protect its intellectual property. Come now, it’s not really the trouncing of the sock puppet’s image that’s fueling the litigation fires. It’s the money, honey. Although Triumph is a favorite with the 2.5 million viewers who tune in nightly to Conan O’Brien’s show, Triumph has never rivaled the sock puppet’s exposure. As the centerpiece of Pets.com’s $20-million advertising campaign, the sock puppet has had a Super Bowl commercial, appeared on “CNN” and “Good Morning America,” and was honored with a balloon in the Macy’s Thanksgiving Day Parade. In Hollywood (and on Wall Street), that spells success. It’s not surprising, then, that some suggest the Pets.com suit is nothing more than a thinly disguised publicity ploy. After all, while the sock puppet and Triumph duke it out on the screen in our living rooms, the ratings (and presumably sales of the puppet toys and related products) soar. Makes you wonder who the real puppets are. Even entertainment lawyers have their eyebrows raised about the case. “Sounds kind of absurd,” says Bryan Sims, an entertainment and intellectual property partner with Arent Fox Kintner Plotkin & Kahn in Washington, D.C. “You can’t defame a puppet.” But, he says, you can defame a company or its products. “I don’t know why Pets.com filed this suit, but they may be trying to get leverage on Smigel, to have a sword to use against him in case he sues on a trademark claim.” Mark Lee, an entertainment and intellectual property litigator with Manatt, Phelps & Phillips in West Los Angeles, considers that a “high-risk tactic.” Rather than discouraging Smigel from suing, it “almost encourages him to file a counterclaim,” says Lee. “Perhaps Pets.com thought it was being harmed by [Triumph's] comments and hoped the complaint would dissuade [Smigel] from saying more. Or maybe they thought a lawsuit would precipitate a lot of publicity.” The latter, at least, has worked.

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