PRESS RELEASE
Super Duper Ordered to Destroy $500,000 of Special Needs Goods - Company Not Allowed to Donate Items to Charity Says Mattel Court
Greenville, SC (MMD Newswire) July 26, 2010 -- Judges Dennis Shedd, G. Steven Agee, and Clyde Hamilton* of the U.S. Fourth Circuit Court of Appeals have upheld an order by trial court Judge Henry Floyd in favor of Mattel Toy Company that requires Super Duper Publications, a provider of educational materials for children with autism and other communication disorders, to destroy all of their goods that advertise or contain the name SAY and AND SAY on seven product lines. (http://www.speakupforsay.com/documents/Super%20Duper%20-%20Fourth%20Circuit%20Decision.pdf) The trial judgment was obtained for Mattel bylead attorney Frank Holleman, a Democratic candidate for South Carolina Superintendent of Education. (http://www.speakupforsay.com/documents/SD_MattelFinalJudgment%20.pdf)
According to Thomas Webber, CEO of Super Duper, the cost of complying with Judge Floyd's order and destroying all advertising and other SAY special education related materials amounts to over a half-million dollars and continues to grow.
"I believe it is a tragedy that Mattel brought this action against us and that the Courts have concluded that we must destroy our SAY special needs materials," said Mr. Webber. "We wanted to at least be able to donate these items to charity so children with autism and others who desperately need speech and language therapy products could benefit from using them. But Mattel and the Courts did not provide for this option in their orders."
Mr. Webber added, "Mr. Holleman and Mattel were able to convince these judges that because our speech and language products had the words SAY and AND SAY in them, they infringed upon and diluted two Mattel toys called SEE 'N SAY and THE FARMER SAYS."
Sharon Webber, a speech-language pathologist, created Super Duper's first SAY workbook in 1987 to help children with speech articulation problems say their R sound correctly. Over the years, Super Duper developed 15 lines of different SAY products like FOLD AND SAY articulation and language books, FISH AND SAY speech and language floor games, and SEE IT SAY IT flip book for children with severe speech problems known as apraxia.
Super Duper registered these SAY trade names with the full approval of the U.S. Patent and Trademark Office. No one objected to these names until 2004, when Mattel opposed Super Duper's filing of a trademark application for the name SORT AND SAY on a line of magnetic educational board games.
Today, Super Duper provides children with autism and others with over 900 unique special needs educational items. It also has over 100 employees. www.superduperinc.com
The trial order held Super Duper had infringed on two of Mattel's SAY toy trademarks.
Mr. Webber contends, "The issue in a trademark infringement case is whether or not consumers are likely to be confused between who makes and sells a product. In my opinion, there is virtually no evidence to support the finding that consumers would likely to be confused between our SAY educational materials and Mattel's SAY toys. NO ONE has EVER been confused between our products over the 23 years we have been in business. Plus, our special needs educational materials are NOTHING like Mattel's toys."
"We also disagreed with the court that we had diluted Mattel's trade names. The judges ruled the trade names SEE 'N SAY and THE FARMER SAYS were "famous" under dilution law. Everyone knows BARBIE is famous, but I don't think one person in a hundred can tell you what the SEE 'N SAY or THE FARMERS SAYS toys are."
Nevertheless, due to the Mattel lawsuit and Mr. Holleman's efforts, Super Duper was ordered to destroy its SAY goods. It also must pay Mattel $999,913 of its SAY profits, and $2,643,844 in Mattel's attorney's fees, plus interest.
Super Duper is appealing the Fourth Circuit decision to the U.S. Supreme Court.
For more info on this matter, go to www.speakupforsay.com
* The other Judges on the Fourth Circuit who refused Super Duper's Petition for Rehearing are Chief Judge William B. Traxler, Jr.; Judge J. Harvie Wilkinson III; Judge Paul V. Niemeyer; Judge M. Blane Michael; Judge Diana Gribbon Motz; Judge Robert B. King; Judge Roger L. Gregory; Judge Allyson K. Duncan; Judge Andre M. Davis; and Judge Barbara Milano Keena
Email: speakup@speakupforsay.com
Phone: 864-243-9000