Thursday, May 08, 2008

Small Special Education Company Battles Mattel Over Right to Use the Words "AND SAY" on Its Products

I'm posting this press release for Super Duper Inc. a company which offers special education material. I have purchased material from this company for my autistic daughter and am very satisfied with the quality. I feel that Mattel's pursuit of damages for "trademark infringement" is petty. Super Duper couldn't have possibly done any serious damage to the company.

May 06, 2008
Super Duper Publications, a small publisher of special education materials, vows to continue its four-year long legal battle with the world’s largest toy company Mattel over the right to use the words “AND SAY” on its educational materials. The final outcome of this case will have widespread impact on the right of special needs and other educational companies to protect trade names on their materials against attacks from huge companies like Mattel

Super Duper, started by Thomas and Sharon Webber 22 years ago in Greenville South Carolina, has provided tens of thousands of autistic and other learning disabled children with helpful educational products. Since 1987, the Webbers have used the words “AND SAY” and “SAY AND” in the titles of their speech and language materials, including workbooks, card decks, and games.

In March, 2004, Mattel opposed a trademark registration the Webbers had filed for use for the name “SORT AND SAY” on a line of special education magnetic games. A year later, Mattel filed to cancel three other Super Duper registered marks , FISH & SAY, FOLD AND SAY, and SEE IT!, SAY IT!.

Super Duper then filed a lawsuit in federal court, seeking a finding that its 15 SAY trademarks did not infringe on any of Mattel’s trademarks. Mattel responded by claiming Super Duper’s use of these SAY marks on its special education products amounted to trademark infringement and dilution of the Mattel’s SEE ‘N SAY electronic pull toy. Mattel asked the court to prevent Super Duper from publishing any of its materials using the 15 marks, and sought $10 million in damages.

The case was tried last week. At trial, Super Duper showed that, unlike Mattel, it is a direct mail order seller, has no retail outlets, does not compete in the toy industry, and makes only therapy materials for highly trained professionals and parents to use with autistic and other special needs children.

Nevertheless, the trial court, ignoring the usual practice of ruling on complicated trademark issues from the bench, submitted the case to the jury, which found that seven of Super Duper’s marks had infringed upon and diluted Mattel’s mark. It awarded the $5.6 billion dollar (annual income) toy company $400,000 in damages plus the right to prevent the Webbers from selling any of their educational products named with these marks.

The Webbers insist that none of their marks infringe upon or dilute the Mattel toy trademarks, and that nothing that they have done has hurt Mattel in any way. This week they will appeal the verdict to the Fourth Circuit Court of Appeals and continue to fight for the right to use “AND SAY” on their special education products.

The decision by the appeals court will affect all businesses in general and educational publishers in particular, as it will spell out just how far monster-sized businesses like Mattel can use their limitless resources to try and take away everyday words like SAY from smaller companies and individuals.

Media Contact: Thomas Webber, Chairman/CEO at twebber@superduperinc.comThis email address is being protected from spam bots, you need Javascript enabled to view it or his cell 864.918.4373

Case Details:
Super Duper, Inc. d/b/a Super Duper Publications vs. Mattel, Inc.

CA # 6:05-1700
United States District Court for the District of South Carolina Greenville Division

Plaintiff Attorney: Steve LeBlanc of Dority and Manning, Greenville SC

Defendant Attorney: Frank Holleman of Wyche Burgess Freeman and Parham, Greenville SC and Jill Pietrini of Manatt Phelps and Phillips, Los Angeles CA


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