A super duper sized mess (Can I SAY that?)
May 8th, 2008, 1:44 pm · 1 Comment · posted by learningathome
In what I call my other life, I am a speech pathologist. We have a family business and the kids have spent more than a few hours here at the office, working on lessons or playing my staff or interacting with the folks who come into the office. So every now and then I post something here that is related to speech and language therapy.
I got an email today about this case. Seems like the Mattel company isn’t making enough money, they needed to go after a family-owned business that sells materials that a lot of speech pathologists use. If you know a kid who has ever been in speech therapy (especially school-based), chances are that kid has used a Super Duper Publications. product. We order from them to stock the office. I have no other relationship with them than as a satisfied customer. They didn’t ask me to write this, and I won’t get a thing from them for posting about it.
This is from a Newsire.com post that I read today:
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!.
I have looked through Super Duper catalogs hundreds of times. I have never once thought “Oh, MY! That reminds me of a Mattel product.” I’m just a little fish in a really big pond, but I just can’t see how Super Duper is hurting anyone by naming products–products that are designed to get kids to SAY WORDS–using the word “say.”
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.
I can understand protecting a brand word (you know, name brand words for sodas and tissues and all of that), but SAY? The logical conclusion to this would be that only mammoth corporations can SAY anything without being sued.
I’m going to go order something from Super Duper. My staff will love me 
Got a question? Something you want to bring to my attention? 
May 15th, 2008 at 9:29 pm
Nice article. I’m sickened by Mattel suing Super Duper. As a mother of an autistic child, it is so hard to find quality educational materials. I was thrilled when my speech therapist showed me the catalog and showed some products to purchase to use at home. Because when your child cannot communicate with you, it’s so difficult. And then when they start to make that break through to speaking - WOW. You have to use the word SAY to teach these children - it’s everyday language - it’s how you get interaction. SHAME on MATTEL for being greedy!!! And SHAME on them for picking on a Super Duper, a small company that is helping the special needs community.