October 25, 2018 6:42 pm

Questions of appropriateness, portrayal of ‘Tokaroo’ mascot continue amid TVO legal threat

WATCH ABOVE: A Toronto man is now getting burned by his creation of a cannabis loving character. TVO says 'Tokaroo' is far too similar to its iconic children's mascot 'Polkaroo.' But Mark Scott says he's using the costume to spark a conversation about responsible use. Jamie Mauracher reports.

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As TVO attempts to stop a Toronto man from continuing to act out a joint-carrying, red-eyed Polkaroo parody, questions surrounding the appropriateness of the character and the man’s ability to portray the so-called “Tokaroo” persist.

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Mark Scott, who played the beloved children’s show character Polkaroo during promotional appearances for more than two decades, has found himself on the receiving end of a cease-and-desist letter from the Ontario Educational Communications Authority, which operates TVO.

In a signed letter, a lawyer wrote that TVO failed to find an “amicable resolution” with Scott over what the broadcaster contends to be an “unauthorized use” of its mascot, which the station claims could pose “a very real threat of tarnishing Polkaroo’s reputation.” The letter demands confirmation from Scott that he will stop his activity by Friday afternoon.

READ MORE: TVO sends legal threat over ‘Tokaroo’ Polkaroo mascot parody

Scott said he was surprised by the letter and doesn’t believe he is doing anything wrong.

“Frankly, Polkaroo did not represent any message. He was the goodwill ambassador,” he said.

“I’m doing something right. I’m bringing education to the audience that needs to be educated.”

WATCH: Hundreds gather at Toronto park to celebrate marijuana legalization. Tom Hayes reports. (Oct. 17)

The letter also mentioned other Polkaroo spinoff characters such as “Rainbowroo,” who raises awareness about gender identity and LGBTQ issues. He said both characters have been seen in the media and at events over the past few years.

When it comes to Tokaroo, Scott said his aim is to create conversations about responsible cannabis consumption and a safe alternative to other drugs and alcohol.

He said his message for the critics is straightforward: “That excess makes a mess, that they should use their altered state in a responsible way and that cannabis is harm reduction.”

WATCH: Discussion over appropriateness of ‘Tokaroo’ mascot

While Scott said many “big kids” and members of the cannabis community embrace the character, there are those who take issue with his creation. During an interview with Global News at Nathan Phillips Square on Thursday afternoon, a man confronted Scott about his Tokaroo costume.

“What about the dressing up, like in a thing for kids with dope … isn’t that kind of an overlap of bad things? If someone dressed up and was like, ‘I’m a whisky bear’ and was drinking whisky,” the man said as Scott tried to tell him he is using a character to provide education on cannabis.

“The conversation is you shouldn’t be advertising it to children … man, your eyes are stoned,” the man continued.

However, after the discussion ended and the man walked away, a woman came up to Scott and posed with his character’s fake marijuana joint as another man took pictures.

What’s allowed under the law?

Stefanie Di Giandomenico, a lawyer with Heer Law who specializes in copyright issues, said using the likeness of a mascot protected under trademark and copyright in a parody situation could be allowed so long as it meets requirements of the principles of fair dealing.

“As long as the copyright owner can prove infringement then it would be up to the defendant or the person who has actually done the infringing to come back with this defence,” she said.

“It has to be a parody, but it has to fall within other legal parameters so it has to be fair in the overall grand scheme of things in order for a court to find that they’re not going to be liable for infringement.”

READ MORE: Cannabis legalization brings new attention to Calgary’s ‘Weed Man’: ‘The phone’s been going off the hook!’

Di Giandomenico said that should the issue proceed legally, a court could look at factors such as how much of the work was taken, how the character was used and reproduced and if it was for commercial or profit purposes. She said the court could order an injunction or impose a fine if it sided with the copyright owner.

— With files from The Canadian Press and Jamie Mauracher

© 2018 Global News, a division of Corus Entertainment Inc.

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