PRESS RELEASE WRITTEN BY: Super Duper, Inc. d/b/a Super Duper Publications 

May 19, 2008 --- Mattel, in its ongoing effort to take the SAY word away from small special education publisher Super Duper Publications and make Super Duper pay $2.8 million dollars in Mattel’s attorney fees and costs, has its “spin control” doctors out in full force. The $5.6 billion dollars a year company, under fire from outraged parents and teachers of special needs children across America, is responding to complaints by attempting to make Super Duper look like the “bad guy” in this dispute.

Claiming “it had no choice but to protect its famous trademarks” (does anyone really believe that Mattel had no choice but to sue Super Duper for $10 million dollars and try to stop Super Duper from using 15 SAY marks on its special needs books, games, and cards just because Mattel has a pull toy named SEE ‘N SAY?), Mattel is now sending the following responses to people that have complained to it about its frivolous actions against Super Duper. (Super Duper’s answers to Mattel’s “spin” follow each of Mattel’s responses).

1. Mattel: This case arose when Super Duper tried to register trademarks in the toy category which are very similar to Mattel's famous SEE 'N SAY and THE FARMER SAYS    trademarks. “

Super Duper Answer: As Mattel is well aware, ALL games that are registered with the Trademark Office, including special needs educational games and card decks made by Super Duper,  MUST be filed in trademark Category 28. It is entirely misleading for Mattel to suggest otherwise. Further, there is nothing similar between the books, games, and card decks made by Super Duper for trained professionals and parents of special needs children, and Mattel's pull toy.
 
2.  Mattel has used these trademarks for more than 40 years and they are registered in the United States Patent and Trademark Office.   

SD Answer: Super Duper started using its first SAY mark 22 years ago, in 1987. Like Mattel, its SAY marks are also registered with this same USPTO.  Until 2004, Mattel never objected to the registration of ANY of Super Duper's SAY marks (and to this day, it is the only company that has ever objected to any of these marks).
 
3.  Mattel: Mattel did NOT sue Super Duper.  Super Duper filed suit against Mattel in South Carolina and requested a jury trial to decide the issue.  Under the circumstances, Mattel had no choice but to protect its famous trademarks at trial.

SD Answer: This is absolutely untrue. Mattel did sue Super Duper for $10 million dollars and asked the court to permanently prevent SD from publishing any of its special needs products that had any of 15 SAY marks in the product titles.

Mattel did NOT have to try and take the SAY word away from a small special needs educational publisher. It could have, and should have, done nothing when Super Duper filed to register SORT AND SAY, because there is no basis to claim that anything that Super Duper does for special education students in ANY way infringes or dilutes Mattel's marks.

Mattel has never had a good reason for trying to keep Super Duper from using the SORT AND SAY name (or for that matter any of its SAY names). Mattel makes an electronic pull toy that people buy at Wal-Mart and Target for their very young children to play with. Super Duper makes special needs books, games, and card decks that professionals and parents of autistic and special needs children use to improve their speech and language. Super Duper’s products are never in mass market stores; in fact, the only way to purchase a Super Duper product is through its catalog, on the web, or through two other special needs publishers.

Super Duper has never had a problem with the many SAY products that other companies have published for educators and parents. It has never had a problem with the name of any Mattel product. It is Mattel that began this fight by trying to keep Super Duper from using the SAY word.
 
Mattel began this dispute  in early 2004 when it filed an opposition proceeding with the Trademark Office opposing Super Duper's application to register the trade name "SORT AND SAY" on a line of magnetic board games for special needs students
 
After delaying this matter for a year, Mattel filed to cancel three other Super Duper registered  trademarks -  " FOLD AND SAY " , " FISH AND SAY ", and " SEE IT! SAY IT! "

The only choice Super Duper had was to either spend a lot of money fighting the four Trademark Office proceedings (with the very real possibility that Mattel would file more cancellation proceedings against other marks), or bring one action in federal court seeking to resolve this dispute once and for all.  Super Duper does not make $5.6 billion dollars a year like Mattel. It could not afford to fight a number of separate trademark proceedings over each of its SAY marks. Since so much of Super Duper's business depends on using the SAY word, Super Duper needed to know whether or not it had done anything improper by using its 15 SAY names without going bankrupt in the process.
 
So, Super Duper brought an action in court asking the court to determine whether or not it had done anything wrong in putting the SAY word on the title of its special needs products. Mattel then sued Super Duper for $10 million dollars and asked the court to stop Super Duper from selling any of its special needs products that had the SAY word as contained in 15 of Super Duper's trade names.
 
(It is important to note that even if Super Duper had been successful on all of the Trademark Office proceedings, Mattel still could have brought an action in court claiming Super Duper had infringed and diluted its mark.)
 
It is Super Duper, and not Mattel, that was put in the position of protecting its good name.
 
4. Mattel: Mattel did not claim the exclusive right to use or to register the word "say" at anytime.  In fact, Mattel did not challenge every name that Super Duper uses which  includes the work "say".

SD Answer: Mattel challenged 15 of the 16 Super Duper marks that have SAY in them, including EVERY Super Duper name that had AND SAY or SAY AND in them, claiming they infringed and diluted Mattel's mark.  

5. Mattel: During the course of this dispute, Mattel presented several reasonable options to resolve this case outside of the courtroom so that both companies could continue in the normal course of business without an expensive trial.  Mattel's goal was to find resolution through procedures that the U.S. Patent and Trademark Office has in place to address such conflicts around trademark registration.  Super Duper rejected all  these options.  

SD Answer:  Mattel never made ANY reasonable settlement proposals to resolve this dispute. Mattel’s goal was take the SAY word away from Super Duper and make Super Duper spend as much money as it could in the process of defending itself. Mattel’s actions throughout the case seriously disrupted Super Duper’s business.  

6. Mattel: The jury in South Carolina found that several of Super Duper's trademarks infringed Mattel's trademarks and that Super Duper had intentionally diluted Mattel's famous   trademarks.  The jury's verdict protects Mattel's long-held rights in its famous   See'n Say trademark and does not threaten Super Duper's business in any way.  The Super Duper trademarks at issue represent less than 8% of Super Duper's sales, and  the $400,000 jury verdict represents less than 2% of Super Duper's approximate    annual revenues of $25 million.  

SD Answer: ABSOLUTELY FALSE.  In addition to the $400,000 judgment, Mattel wants Super Duper top pay its $2.8 million dollars in attorneys fees and costs, and stop selling any of the 7 lines of "infringing" SAY products permanently until it changes the names of these products.  To do this, Super Duper would have to destroy hundreds of thousands of dollars of special needs product inventory, stop selling these products while it has new products made, and spend hundreds of thousands of more dollars printing replacement products. This would have a tremendously negative effect upon  Super Duper's ability to help special needs children.

7. Mattel:  Super Duper can continue to sell the products at issue, as long as it uses trademarks that do not infringe or dilute other company's trademarks.   See Answer 6.

Mattel takes its commitment to integrity and fairness in the marketplace very seriously and works hard to protect its business and intellectual property rights, such as trademarks.  Mattel made every effort to settle this issue on terms that would have been beneficial to both companies.  Instead, Super Duper chose to seek a jury trial in South Carolina and is now objecting to the verdict reached by a jury of citizens which was selected from its very own community.   

SD Answer:  There is NOTHING Mattel did in this case that was beneficial to Super Duper. During the case, Mattel was sanctioned for misrepresentations it made to the court and was ordered to pay Super Duper money for its misconduct. Mattel did everything it could to make this case as long, expensive, and difficult upon Super Duper as possible.
Super Duper believes it will win this case on appeal because Mattel presented no credible evidence at trial that Super Duper has ever done anything in developing its educational products for autistic and special needs children that infringe upon or dilute Mattel's pull toy trademark.

8. Mattel: While Mattel is pleased that the jury recognized the facts of this case, we want to again emphasize that Mattel neither wanted nor sought a trial on this matter.  Super Duper can continue to sell these products, the judgment requires that they select other names. 

Mattel must wait until the Fourth Circuit Court of Appeals hears this case until it can claim victory over Super Duper and all the professionals, parents, and special needs children it serves.  Super Duper believes when the Appeals Court hears this case,  the Court will protect the right of educational companies like Super Duper and "little guys" everywhere to use common language words like SAY without fear of interference from monster-sized companies like Mattel that choose to spend their resources bringing frivolous lawsuits rather investing in safe, reliable toys for America’s children.

Media Contact: Thomas Webber, Chairman/CEO at \n This email address is being protected from spam bots, you need Javascript enabled to view it This email address is being protected from spam bots, you need Javascript enabled to view it    or his cell 864.918.4373

www.superduperinc.com    

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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