Week 8 EOC: Bratz (MGA) vs Barbie (Mattel)

In the decade long dispute over trade secrets between the dolls Bratz and Barbie, a significant amount of money has tethered the two in a nasty game of tug-o-war. The often convoluted issues of who stole what and from whom, has taken center stage and is the heart of the matter.

Originally, Barbie was created by Ruth Handler with the assistance of Mattel.  Barbie was one of the first of its kind to evolve away from traditional dolls that were mainly babies. The leap from the traditional doll blossomed into a billion dollar entity with a wide selection of products in her image (cartoons, bedspreads, backpacks, etc.). Moreover, her signature style was born from her mature look and "knock out" measurements, thus creating a highly recognizable toy icon status.

Enter Carter Bryant. A previous employee of Mattel, who worked on the Barbie line, began constructing his own doll line that we now recognize as Bratz. At the time he pitched and ultimately released the doll to MGA for production, there was overlap in his employment with Mattel. This in turn pulled into question whether he had violated a "nondisclosure agreement entered into with [his] employer" (Stim, pg.520), who was Mattel at that time. The issue of trade secrets being used in the production of his doll line was severely under scrutiny, not to mention the time of conception for the brazen doll line.

The push and pull over this issue began in 2004 when Mattel first sought damages. Mattel claimed Bryant was secretly working for the competition, MGA, while still employed with Mattel. Another two years pass and Mattel filed again for damages, but this time it was for copyright infringement and trade secret theft. In 2008 there was yet another suit, but Bryant settled with Mattel before going to trial. However, in 2011 MGA was awarded damages because the judge, David Carter, deemed the first ruling back in 2004 was erroneous, stating that, “Mattel asserted a copyright claim that was stunning in scope and unreasonable in relief it requested,” Carter said. “The claim imperiled free expression, competition and the only serious competitor Mattel had faced in the fashion doll market in nearly 50 years.” (http://www.businessweek.com/news/2011-08-05/mga-wins-225-million-punitive-damages-fees-against-mattel.html). 

Bryant claims to have originally sketched the concept for the Bratz dolls back in 1998, before his employment with Mattel. This did not shake Mattel from jumping all over the claim that he stole trade secret to produce the doll by using knowledge that is "not known outside of the particular business entity" (Stim, pg. 519). In 2011, a jury found that Mattel did not own a copyright in the creative designs behind the dolls. It also found that the ideas, designs and name of the doll collection were not Mattel’s trade secrets and that generally, MGA/Bryant did not take any of Mattel’s trade secrets for their use. The same jury found, however, that Mattel was guilty of "misappropriation of trade secrets occur[ed]...by improper means" (Stim, pg. 549), by attending showroom floors at MGA using fake business cards to gain access.  Mattel, again, was at the throat of MGA in asking for a retrial, but was ultimately denied. This matter is likely to head to the Supreme Court to finally be put to sleep.

In closing, this case has become a bit like 'the most suspicious is also the most guilty. It is my opinion that Mattel has taken this too far. The Barbie brand is a classic one that is not in jeopardy of dying off anytime soon. Nor do they need to fear whether Bratz dolls would ever be confused with Barbie. If anything, Mattel needs to step it up and compete fairly. It seems that they are the ones hitting below the belt and for not. Innovation and creativity shall prevail.

Week 8 BOC: Progress on Final Project

Per our last class, I was able to look up the contact information for eight lawyers, that specialize in Intellectual Property, here in the Las Vegas region.  In addition, I had already obtained two other contact numbers for criminal law as well, from my fathers' recommendation.

In preparation for the interviews, I brainstormed on the questions that I was going to ask. I found this task a little more daunting than I initially anticipated. I wanted to sound sophisticated and pose thoughtful questions that would require more than a 'Yes' or 'No' answer.  Though I have ten questions in the queue, I'm going to ask some of my fellow Fashion/Retail Management students what they came up with, so that I may consolidate and revise my questions accordingly.

Regarding the other aspects of this class, I have completed all assignments (the blogs specifically) with the proper labels and within the time stamps that they're due. My tweets are also caught up.  So much so, in fact, that they're extended out to week nine.

Today, after class, I plan on reviewing, refining and editing my questions for the interviews.  Once that task is completed, I'll begin the process of reaching out to the various specialists in IP law.  I also plan on contacting the criminal lawyers, as well, to discuss in greater detail, what the reprisals are for those who violate infringement laws and if anyone has faced jail time for such offenses.

I believe the collective efforts of revising my questions and interviewing multiple sources (if I'm fortunate) will provide a well rounded project that is pensive and informative. Lastly, I hope to establish relationships with lawyers that could potentially represent me should the occasion arise. 

Week 7 EOC: Lawyers

The following is a list of lawyers and contact numbers for the upcoming final project .

Out of State:

1. Steve Barnes- (303) 995-1492 (Criminal lawyer based in Colorado)

2. Patty Barnes- (303) 757-4971 (Criminal lawyer based in Colorado- Partner)

In State:

3.  Randal D. Shimon Law Chartered- (702) 312-4175 (IP)

4.  Reynolds & Associates- (702) 997-0467/ (702) 445-7000 (IP)

5. McDonald Carano Wilson LLP- (702) 873-4100 (IP)

6. The Amin Law Group- (702) 990-3583 (IP)

7. Law Offices of Philip A. Kantor, P.C. - (888) 575-2295

8. Cotton, Driggs, Walch, Holley, Woloson & Thompson- (702) 791-0308

9. Kenehan & Lambertsen Limited- (702) 997-1732 (IP)

10. Law Office of Mary F. Chapman, Ltd- (702) 800-3362 (IP)

Week 6 EOC: Illicit Trade

In the documentary, "Illicit: The Dark Trade"-by National Geographic, it begins with the seemingly innocent purchase of a designer knock-off handbag. The documentary then follows the veins from the counterfeit bag being sold on the street, back to its origin of construction thousands of miles away. What’s more is that the journey, from shop to streets, is shared with very sinister company in-tow. The likes of which are human trafficking, counterfeit pharmaceutical drugs, and illegal organ transplants to list a few. This well established and flourishing industry of illicit trafficking of goods, has become a full scale epidemic that gains momentum daily. All efforts to slow down this high speed train is like a snail trying to out run a cougar: with every bust, they lop of the head of a monster only to turn around and see ten more heads sprouting from its' neck.

In watching this documentary, I began to wonder how this would affect my craft should I be fortunate enough to succeed and become a profitable designer? How will I protect my trade from imitation knock-offs, that are often more perfect than the designer brand who releases them? Would I even be aware that it was even happening across the globe? The answer is simply a matter of effort I would have to put forth to protect my goods. 

As it stands, I am a purse maker, so this documentary was not too surprising in regards to the endless knock-offs that I've seen personally. I always, however, wondered how the designer giants: Prada, Gucci, Chanel and Fendi, managed in fighting off the relentless opportunists that copy and sell their wears. The answer was a combination of sorts. In some ways, they could do nothing and let knock-offs be distributed, as is the case currently, and see this as a positive for advertising on the behalf of designer houses. Though I would counter that this logic does not support the essence of why these giants are so successful. The whole idea is that these brands are a status. Only those with cash can carry. So if the average high school student, or Walmart mom has a Chanel bag over her shoulder, then it loses its luster for exclusivity. The other option was to higher expensive private investigation crews to seek out the imitators and shut-down the factories. For those who have the means, this is a very viable option, though very slow to achieve its goal.

My solution is maintain exclusivity is to have a registry. I currently make one-of-a-kind handbags that are not easily replicated due to the very nature of how I make my prints and I lack patterns for construction. The result is a purse that is yielded out of materials that I have on hand, and at the amount of it I have in that particular print. That's not to say that this type of print making is not susceptible to imitation, but it does make it harder. Furthermore, by having a registry, I could personally issue a number to that purse, that I only have access to. So upon purchase, the purse is sent with a card of authenticity and a number that ensures the item is not a fake and can be traced back to my hub. I could also change the sequence of numeric filing to stay ahead of copy-cats, who try to emulate my system. In all, I think this will be more successful at maintaining the exclusivity that every consumer wants when buying a luxury piece that sets them apart from the mainstream. I want that right for my clientel and think this will ensure their satisfaction with my product and my name.

Week 5 EOC: Patent Trolls

Back in 2010, The Wall Street Journal published an article titled, "New Breed of Patent Claim Bedevils Product Makers", by Dionne Searcey. The contents therein give face to individuals, commonly known, to the business and patent law community, as Patent Trolls. These individuals range from the seemingly concerned consumer (as most proclaim to be), to companies deftly coined “patent assertion compan[ies]” (pg. 137, Stim). At any rate, they are in the business of filing suits against companies for patent infringements, even though they are “not in the business of making or selling anything” (pg. 137, Stim). Aside from this glaring disparity, they are an welcomed nuisance to companies because “they seek licensing fees that are disproportionate to the patent’s value, often because they are well funded and can afford litigation costs” (pg. Stim).

 This seemingly petty practice, as discussed in the article, has launched hundreds of suits from “concerned consumers” and investigative patent infringement agencies, to intentionally rummage through the shelves to find expired patents (on a variety of goods) in order to file with the courts. One might counter that this practice of “gotcha” tactics to ensure products do not have falsely marked or expired patent numbers on them, is a service to consumers and competitors alike; however, this trend of ‘suing anyone for anything to get rich quick’ has got to have some limits. Litigation is getting out of hand and bogging down the judicial system with trivial claims in most instances.

To the chagrin of many companies, there is an expectation to maintain 100% control over tracking items that have expired markings. This is an altogether task and not a realistic one at that. Too often is the case where products are produced with these markings; stored in warehouses, where they may be purchased/stored by a third party for a multitude of years, and then the risk of violating patent laws if purchased after the time stamp of the patent. This isn’t practical. A solution to keep from having to run these items down and face litigation is to simply avoid the markings on the product, but then that kind of defeats the purpose of a patent in the first place. I contend that there should be a ‘grandfather clause’ on items that are sold/present with expired patent markings. As long as it was already distributed, then it is safe. Otherwise, a potential competitor only need to look up the currency of a patent to see if a new patent is an option.

In all, the patent trolls need to be banished back under the bridge, as in the Billy Goats Three, and allow consumers and competitors alike, to do their homework and research the validity of a product patent.

Source: Patent, Copyright & Trademark: 12th Edition, March 2012, By Richard Stim