Mattel wins judgment over Super Duper

By Anna Mitchell  

JULY 18, 2010 3:45 p.m. (2)

Children's education company Super Duper has lost the latest – and perhaps final – round in a multimillion-dollar legal dispute with toy giant Mattel over trademark infringement.

The Greenville publisher of educational materials for special-needs children sued in 2005 after Mattel got the U.S. Patent and Trademark Office to revoke trademarks on several Super Duper’s products, some dating back more than 20 years, using the words “SAY” and “AND SAY.”

The company makes flash cards, books and other speech and language therapy materials primarily aimed at children with autism and other communication disorders. Sharon Webber started her career as a speech pathologist, and launched the company out of her home 24 years ago.

Mattel has for 50 years marketed the “See ’n Say” toy that its lawyers said was too close in name to several Super Duper materials (“Sort and Say,” “Say and Sing,” “Fish and Say,” and “See It! Say It!” among others). The See ’n Say, in various manifestations, has a number of pictures arranged around a plastic circle; kids can point an arrow to one of the pictures and pull a lever to hear barn noises, numbers, letters of the alphabet, etc.

“I don’t think anybody associates, when they hear the name of one of our ‘SAY’ products, they think of this Mattel product, which they say is famous,” Super Duper CEO Thomas Webber said. “The product is famous, but its name is not. That was our case, plain and simple.”

The toymaker, whose profits last year exceeded $500 million, won a 2008 jury trial over this question and has won every ruling and appeal since.

Super Duper's appeals to the Fourth Circuit Federal Court ran out last week, and its only recourse now would be to go to the U.S. Supreme Court, something Webber said he is willing to do.

Super Duper faces paying Mattel $3.6 million in damages and legal fees.

Mattel, a California-based corporation, was represented in South Carolina federal court by Frank Holleman, a Greenville attorney with the Wyche firm who specializes in intellectual property and litigation, among other things. Holleman is also the 2010 Democratic nominee for South Carolina Superintendent of Education.

Nancy Wolfe, a friend and spokeswoman for the Super Duper founders, said she couldn’t understand why Holleman would agree to represent Mattel.

“How could you run to be top dog in the state’s education system and have any part in this?” Wolfe said.

Holleman said this case was about business, and said his track record of helping special-needs children and education efforts in South Carolina and across the nation speaks for itself.

Holleman was U.S. Deputy Secretary of Education under Bill Clinton, helped create First Steps under Gov. Jim Hodges and has chaired boards for Success by Six and Greenville’s Alliance for Quality Education.

In the end, jurors didn’t agree the Webbers’ company went by the letter of the law, Holleman said.

“It’s not going to end our business,” Webber said. “It’s simply a case that we disagree with the result. And we disagree with how trademark law has been applied in this case.”

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wendy  - Mattel VS Super Duper   |2010-08-15 03:57:24 This type of arguement only proves what we all keep hearing "its all about the money." You are fighting over a word and not really looking at the use of the products. Yes the see and say could be considered an educational toy but it is on a whole different level as the Super Duper products. These products are teaching individuals with disabilities functional communication for daily life. They teach concepts, objects , noun, verbs and language based things. The See and Say is sold in stores where the Super Duper products are primarly used by speech professionals and parents with children on the spectrum. I think what you really should be looking at is the use of the product vs the name on the product. Remebering that the Super Duper product is designed for different use then the See and Say. As for the destruction of products, "that is just ridiculious." Our public schools and charities have a hard enough t... Reply

Delbert  - Not True   |2010-09-08 08:16:30 The article is misrepresenting the case. It did NOT hinge on use of the term "and say". Mattel correctly points out that Super Duper has dozens of other products which say "and say" on them and they weren't sued over it. This issue is a red herring being thrown up by the Webbers. In reality, they sued Mattel (not the other way around) and their infringement goes way deeper than using the phrase "and say". Read the actual facts of the case. Super Duper has infringed on other people's intellectual property--and it's not the first time. Watch out for more lawsuits up the pike from other game creators that Super Duper have plagiarized and stolen from. Reply

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