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Does It Matter, Mattel?

By Nancy Lee Wolfe

Mattel Toy Company isn't doing well these days. Just last week, 9th Circuit Court Judge Alex Kosinski brilliantly schooled Mattel about the cutting edge of Intellectual Property Law. Mattel learned that Barbie isn't the only babe on the block; Bratz babes have the right to exist, too. In essence, Judge Kosinski put Barbie in her place and stripped Mattel of their $100 million windfall profit.

Today, Bloomberg Businessweek reports that "Mattel, Inc., the world's largest toymaker, fell the most in 17 months after fees from a lawsuit . . . increased expenses in the second quarter . . ." Curiously, "Robert Carroll, an analyst for UBS Securities in New York, recommends buying Mattel shares."

Others will disagree with Mr. Carroll who may be oblivious to another legal matter in which Mattel is embroiled. Just as Mattel insisted Barbie was too powerful to be challenged, they have arrogantly claimed ownership of the words 'SAY' and 'AND SAY'.

This arrogance and gall has provoked a 7-year-old struggle with Super Duper Publications, Inc., a family-owned publisher of highly specialized teaching tools for autistic and special needs children. Sharon and Thomas Webber have owned their SAY trademarks for more than 20 years.

In a nutshell, rather than properly applying existing trademark law, U.S. District Judge Henry Floyd decided to ask a jury to take that responsibility. Predictably, the jury split the difference; and, Judge Floyd issued his judgement without issuing an opinion. When the Webbers appealed that verdict, Judge Floyd more than doubled the damages against the Webbers.

Hostilities between the parties grew so heated, Mattel insisted, and Judge Floyd agreed, that the Webbers destroy $500,000 worth of teaching tools. The Webbers were forbidden to donate them.

Judge Dennis Shedd of the 4th Circuit Court cut Mattel's SAY claim completely contrary to the opinion issued by Judge Kosinski. Just as Judge Floyd's reasoning remains a mystery, so does the position of 4th Circuit Judges Shedd, G. Stephen Agee and Clyde Hamilton who issued an "unpublished" opinion upholding Judge Floyd's order. The matter now moves to the U.S. Supreme Court.

Consequently, the question remains: Does it matter to Mattel? Hundreds of speech/language professionals, parents and educators from around the world are writing Mattel on a daily bases demanding that they take the necessary steps to vacate the $3.6 million judgement against Super Duper Publications and allow them to produce their teaching tools in peace. The word boycott is used vigorously; pleadings drip with determination and resolve. Is Mattel listening? Does it matter to Mattel that they continue to allienate an entire industry? Does it matter to Mattel that this is an industry primarily serving the needs of children? Mattel's silly claim to the words SAY and AND SAY cause one to wonder if they simply subscribe to the trendy "too big to fail" fantasy. It's difficult to SAY.

Evidently, Mattel has decided to continue their plan as described in 2008 by CFO Kevin Farr who actually said, "I think what we are doing is we are making investments and legal expenses and we'll make the appropriate investments as these legal matters progress through the year."

In the meantime, the beating goes on for Super Duper Publications. If it matters to Mattel that they are making life-long enemies and sowing perennial seeds of resentment that will persist for generations, time will tell.

See also: "Mattel Frivolous Lawsuit has Deep South Carolina Roots"