Opening Statements

Wham-Owed


Photo by Whamo

If you think that all kids want these days is a Wii, a Nintendo DS or the latest PlayStation, then a series of recent lawsuits may make you think twice.

Wham-O Inc., the manufacturer of such iconic toys as the Hula Hoop, Frisbee and Super Ball, says in a recent lawsuit that its products are so valuable that a rival is out to destroy the company.

In lawsuits filed from 2006 to 2008, Wham-O claims Manley Toys—aka Toy Quest, aka SLB Toys USA—violated its trademarks and patents on toys like the Frisbee and Super Ball. It also claims that Manley bribed a Wham-O research and development executive to steal trade secrets, marketing strategies and toy designs for Wham-O’s future product lines—then hired the former employee after she gave Wham-O’s confidential material to Manley.

Wham-O has, thus far, been awarded more than $8 million in damages and attorney fees against Manley/Toy Quest, but that has not stopped the feud.

Last year Manley took the highly unusual step of filing four separate petitions to the U.S. Patent and Trademark Office to cancel three of Wham-O’s most famous trademark registrations: Slip ’n Slide, Frisbee and Hula Hoop. It also filed a notice of opposition to a pending Wham-O application for a Super Ball trademark, says New York City lawyer Parker Bagley, who represents Emeryville, Calif.-based Wham-O.

What’s behind the rivalry? Perhaps an attempt on the part of Manley to add Wham-O’s inventory to its own product line.

Manley may best be known for Tekno the Robotic Puppy, a best-seller introduced in 2000. The toy helped propel sales to $500 million by 2006. It also had a hit in 2003 with its Banzai Falls backyard waterslide.

Bagley suspects that Manley’s attempts to have Wham-O trademarks declared generic are a thinly veiled play for the company. Manley first offered to buy Wham-O in 2006 and its offers were rejected, Bagley says. “If Wham-O is stripped of its trademarks, the value of the company goes down, making it easier to buy it on the cheap,” he says.

Manley Toys principal Brian Dubinsky declined ABA Journal requests for an interview via his attorney, Tim Reuben of Reuben Raucher & Blum in Los Angeles.

But the generic card is as tricky as a Hula Hoop to spin. “The law is loath to find iconic products generic, because that is like penalizing a company for being so successful its brand name is everywhere,” says Washington, D.C., IP lawyer Mark Sommers of Finnegan, Henderson, Farabow, Garrett & Dunner.

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