BULKY DOCUMENTS
`(Exceeds 300 pages)
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`Proceeding] Serial No: 9 1 162237
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`Filed: 1-30-09
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`Title: STIPULATED MOTION TO EXTEND
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`TESTIMONY AND TRIAL DATES AND RESPONSE TO
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`ORDER OF JANUARY 5, 2009
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`Part 1 of1
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`Processed by Curtis Puryear
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`TTAB
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`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
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`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
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`Docket No. 12838-187
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`In re Matter of Application No. 78/302,487
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`for the mark: KALI
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`Opposition NO. 91—162237
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`STIPULATED MOTION TO EXTEND
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`TESTIMONY AND TRIAL DATES AND
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`RESPONSE TO ORDER OF JANUARY 5,
`2009
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`Applicant.
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`Mattel, Inc,
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`Opposer,
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`V3,
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`MGA Entertainment, Inc.,
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`Pursuant to 37 C.F.R. § 2.121(d) and TBMP § 501, Opposer Mattel, Inc. (”Mattel”),
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`by its counsel, and Applicant MGA Entertainment, Inc. (”Applicant”), by its counsel,
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`hereby jointly respond to the Board's order of January 5, 2009 concerning the parties’
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`prior motions to extend the testimony periods.
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`First, as requested by the Board, attached are copies of the complaints in the
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`consolidated lawsuit entitled Bryant 0. Mattel, Inc., Case Nos. CV 04-9049 and CV 04-
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`O9059, and MGA Entertainment, Inc. v. Mattel, Inc., Case No. 05 CV 02727 pending in the
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`U.S. District Court for the Central District of California, respectively as Exhibits A and
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`B. Also attached are copies of the Court's docket for each case, included in Exhibits A
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`and B, respectively.
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`Second, the parties jointly move for and stipulate to an extension of 60 days of
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`the schedule set in this action in Order to compete settlement discussions. The parties
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`have exchanged several settlement letters. Applicant continues to consider Mattel’s
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`01-30-2009
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`settlement proposal sent on February 29, 2008. There are only a few issues remaining
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`for the parties to negotiate, and the parties are hopeful that they can reach a settlement
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`in the near future.
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`The complexity and length of the federal litigation between the
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`parties has prevented the parties from completing their settlement discussions.
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`Specifically, there have been three phases to the case (Phases 1(a), 1(b) and Phase 2),
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`with trial of Phase 1(a) beginning in May 2008. Proceedings continue to the present
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`with post-trial motions and appeals. There are significant and complex post trial
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`motions scheduled for hearing on February 11, 2009. The parties anticipate it will take
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`some time for the District Court to rule on the post trial motions. On January 6, 2009,
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`the District Court lifted the discovery stay for Phase 2 of the litigation. No trial date
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`has yet been set for Phase 2.
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`Accordingly, Applicant has not been able to respond to Opposer’s February 29th
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`settlement proposal. Likewise, the parties will be unable to focus on their respective
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`testimony periods while the third phase of the trial
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`is ongoing.
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`Following the
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`conclusion of the Bryant trial, the parties will resume settlement discussions and are
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`hopeful that th ey will reach a settlement soon thereafter.
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`In order to concentrate on their settlement efforts, Applicant and Opposer agreed
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`to this extension via email on January 5, 2009. Accordingly, Opposer and Applicant
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`stipulate to the following schedule for the testimony and trial dates in this action:
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`PERIOD
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`Period for Discovery to Close
`Testimon period for part
`in position of
`Plaintiff tg close
`y
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`DATE
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`Closed
`April 8, 2009
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`Testimony period for party in position of
`Defendant to close
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`June 7, 2009
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`July 22, 2009
`Rebuttal Testimony period to close
`Should the Board require any additional documents from the federal court action
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`to consider this motion, the parties should be notified and a prompt response will be
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`made.
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`Date: January 27, 2009
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`Respectfully submitted,
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`‘
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`" ' ‘\
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`Jill M. Pietrini
`MANATT, PHELPS 8: PHILLIPS, LLP
`11355 W. Olympic Blvd., 10th Floor
`Los Angeles, California 90064
`(310) 312-4325
`Attorneys for Opposer
`Mattel, Inc.
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`CERTIFICATE OF MAILING
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`I hereby certify that this correspondence is being deposited with the United
`States Postal Service as first class mail in an envelope addressed to: Commissioner for
`Trademarks, P. O. Box 1451, Alexandria, VA 22313-1451, on this 27th day of January,
`2009.
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`
`
`LaTrina Martin
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`CERTIFICATE OF SERVICE
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`I hereby certify that this STIPULATED MOTION TO EXTEND TESTIMONY
`AND TRIAL DATES AND RESPONSE TO ORDER OF JANUARY 5, 2009 is being
`deposited with the United States Postal Service, postage prepaid, first class mail in an
`envelope addressed to: Alexa L. Lewis, Mitchell Silberberg & Knupp, LLP, 11377 West
`Olympic Boulevard, Los Angeles, California 90064, on this 27th day of January 2009.
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`413516312
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`
`' LaTrina Martin
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`EXHIB‘IT A
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`ROBERT F. MILLMAN, Bar No. 069.152
`DOUGLAS A. WICKHAM, Bar No. 127268
`KEITH A. JACOBY, Bar No. 150233
`LITILER IVIENDELSON
`AP1‘ofessi0na1Co. oratiog
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`W%WTRa|1 D|'=TH‘l ’u -
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`Telephone: 310.553.0308
`Facsmxile:
`310.553.5583
`Attome s for Plaintiff
`CAR R BRYANT
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`UNITED STATES DISTRICT COURT
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`CENTRAL DISTRICT OF CALIFORNIA
`57-” [W354-9049'
`Case No.
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`CARTER BRYANT, an individual
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`_pN{‘!x
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`Plaintiff,
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`V.
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`COMPLAINT FOR:
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`DECLARATORY RELIEF OF
`‘COPYRIGHT NON—
`INFRINGEMENT
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`MATTEL, INC., a Delaware
`corporation
`A
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`Defendant.
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`1.
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`Bryant is an individual residing in Springfield-Greene County,
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`PARTIES
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`2.
`Bryant is informed and believes, and based thereon alleges, that Mattel
`is a Delaware corporation with a principal place ofbusiness at 333 Continental
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`, Boulevard, El Segundo, California.
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`JURISDICTION AND VENUE
`This is an action under 28 U.S.C. §§ 2_201 and 2202 for declaratory
`3.
`relief and further reliefbased upon a declaratory judgment or decree and the
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`12 3 Copyright Act of 1976, 17 U.S.C. §§ 101 et seq.‘ This Court has original subject
`matter jurisdiction over Bryant’s claim pursuant to 23 U.S.C. §§ 1331 and 133 8(a)
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`14 ' & (b).
`This Court has personal jurisdiction over Mattel, as it conducts
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`16 i continuous, systematic and routine business within the State ofCalifornia and the
`17 I County of Los Angeles..
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`5.
`Venue is proper in the United States District Court for the Central
`19 1 District ofCalifornia pursuant to 28 U.S.C. §§ 139l(b) &. (c).
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`-2.0
`BACKGROUND FACTS,
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`Bryant is the creative genius and inspiration behind an iminensely -
`6.
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`successful line of fashion dolls called “Bratz.”
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`7.
`Since its debut on the market in June, 2001, the “Bratz” line has
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`revitalized and invigorated the fashion-doll industry, long dominated by Mattel’s
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`25 ,1 “Barbie” dolls.
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`8.
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`Mattel, however, does not like the competition.
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`9.
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`First, Mattel, the world’s largest toy company, tried, and failed, to
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`drive “Bratz” out of the market by, inter alia, introducing competing products that
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`copy the fresh, new and trendy look of “Bratz.”
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`10. When this failed, Mattel resorted to other tactics 5- suing Bryant, three
`and one halfyears after the launch of“Bratz,” in California state court accusing
`him, among other things, ofthe alleged “conversion” ofMattel’s “ideas, concepts,
`rights, designs, proprietary information, and other intellectual property and
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`intangible property.”
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`11.
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`Recent events discussed herein reveal what Mattel intends by this
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`' vague and oyer1y—broad pleading. Mattel intends totry to obtain control over the
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`rights to “Bratz,” apparently based, in whole or in part, on grounds that “Bratz” was
`allegedly copied from and infringes upon a scrapped Mattel project called “Toon -
`Teens,” or some other as yet undisclosed Mattel property, which Bryant was I
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`supposedly exposed to during a period oftime when he was "employed by‘ Mattel.
`12.
`Bryant did not copy or infringe anything in coming up with “Bratz.” v
`Since these copyright issues cannot be resolved in state court, due to federal
`preemption, Bryant has a reasonable fear that Mattel will bring another lawsuit
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`against him for copyright infringement.
`' 13. Bryant brings this action, accordingly, for a Declaratory Judgment that-
`his past, present, and continuing contributions to and work on the conception -and
`' development of“Bratz‘_‘ did not and do not violate or infringe any copyrights or
`intellectual or other property owned by Mattel.
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`7.2
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`Carter Bryan-t’s Background
`14. Bryantis a creative, innovative, artistic person who since an early age"
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`has had a special interest in dolls and fashion design.
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`15.
`As a young ‘boy, when his family could not afford to buy hint toys,
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`27 Bryant would draw them.‘ Dolls and puppets were particular favorites. While still
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`very young, Bryant began constructing marionettes from papier-mache.
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`By age ‘nine, Bryant had begun to draw fashions. Fashion anon
`16.
`‘ became a passion. He bought books on Hollywood costume design and studied
`them intensely. He made designs for his-puppets "and drew characters and outfits
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`, considered becoming a comic book artist.
`17. Bryant took art classes throughoutjunior high and high school. He
`also began reading, and studying, fashion magazines such as “Vogue” and
`l “Harper’s Bazaar,” thinking he might one day have a career in fashion design. He
`began creating his own fashions based on what he saw in such magazines.
`18- After high school, Bryant considered going to design school, but gave
`i up the dream when he realized that his family could not afford to send him.
`i 19.
`Instead, he tried songwriting for a while, and even formed a band in ~
`-, 1988. For several years, he took dead-end jobs to make ends meet, such as stocking
`shelves at Toys ‘R’ Us. But Bryant never let go of his dream, ‘or’ gave up his.
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`interest in drawing and design.
`20.
`In 1993 he applied and was accepted to Parsons School ofDesign in
`j Paris. Based--on the information contained in Parsons’ website, since its founding :
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`in 1896, Parsons has been a forerunner in the field of art and design and was the
`. first an and design school in America tofound a campus abroad in 19-20.
`21.
`«Unfortunately, despite loans and work programs, attendance was cost-
`f prohibitive. iBryant Went, instead, to Otis College ofArt and Design in Los
`Angeles. According to its website, Otis began in 1918, when Los Angeles-Times
`founder Harrison Gray Otis bequeathed his MacArthur l’ark property for a public
`art college. Otis is a four-year college offering bachelor’s degrees in a variety of art
`and design—re1ated areas including architecture, fine ans, fashion design and -toy
`I design.
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`22. On an accelerated track, Bryant finished his entire first year injust 5
`a months, irom January to June of i994. He then applied and was accepted to
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`transfer to Parsons, howcvcr, again he could not raise enoughmoney to go. He
`; stayed one more semester at Otis, but .with only a small scholarship and mounting
`debt, Bryant left the school in December, 1994. He went home to Missouri for
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`23. Realizing that going to Paris and wo/rlcing as a fashion designer was
`simply not economically feasible, Bryant got the idea that he might be able to
`5 combine his love of dolls and fashion by becoming a fashion designer for dolls in -
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`the toy industry. Naturally thinking of“Barbie,” the fashion doll that had
`dominated the market for decades, he put together a portfolio of ten or so drawings
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`‘ to send to Mattel, but lacked the confidence to actually send it to such a huge,
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`intimidating company.
`24. By 1995, however, he decided he had nothing to lose. Broke‘ and with
`? no real career. opportunities in sight, Bryant sent the package to Mattel.
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`Bryant’s Employment by Mattel '
`A 25. Much to his surprise, Mattel called him for an interview. After
`L completing-a “trial projec ” for the company at its request prior to his being
`considered for formal employment, he was hired as a temporary employee in
`September, 1995. He was promoted to a full—time position in November, 1995.
`26. During his time at Mattel, Bryant worked exclusively on “Barbie”-
`‘ related projects for the “Barbie” family of dolls, as directed by Matte1’s marketers.
`Mattel toldhirn what they wanted him to design, and he didwhat he was directed to
`do.
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`27. On occasion, Bryant would offer new, original and creative ideas to
`Mattel, but Mattel.discouraged anything non-traditional. No matterwhat the idea
`was, Mattel would
`to figure out a way to use it for “Barbie,” or not at all.
`228. Bryant felt that his creativity and originality were being stifled and
`suppressed at Mattel.
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`29. Within two years at Mattel, Bryant was feeling frustrated. He simply
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`did not fit Mattel’s mold. He also missed his family, and so decided to return home
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`to Missouri. With some significant design and work experience under his belt, he
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`thought he might be able to build a career as a freelance design artist.
`30. He left California in approximately January 1998, but continued to
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`work for Mattel from Missouri, on a part-time basis, until April, 1998.
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`Bryant’s Inspiration: “Bratz”
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`31. Bryant continued to live with his parents in Missouri for the rest of the ’
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`1998, working exclusively on his own ideas and drawings, with the hopes of
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`building a careeras a freelance artist.
`32. Among other things, Bryant created greeting cards, and considered
`going into the greeting card business. He even applied for ajob at Hallmark.
`Bryant also did a bit of freelance design and artwork for Ashton Drake Galleries of
`Chicago. On informationand belief, Ashton Drake is the world’s .larges_t direct
`' marketer of limited edition, collectible-porcelain dolls, and its dolls have soldat
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`auction for as much as.$1200. It is wi.de1y renowned among doll collectors "for its
`‘top-quality, handcrafted.col1ectibl_c dolls. Ashton Drake employs artists and -
`‘freelancers to work on itsdoll programs and new doll concepts. Bryant workedon .
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`“Angel” and “Wedding” theme projects for the company in 1998. He
`supplemented his income by working at a clothing store, Old Navy. But Bryant .
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`'_ also worked on his own ideas for dolls
`his lifelong obsession- One day, while
`returning home fi'om Old Navy, Bryant drove past a high school and had a-“eureka”
`moment. Inspired by the “bratty” attitude he had observed," as well as
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`advertisements that he had seen relating to hip—hop fashions and other trends of the
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`B
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`-' time, Bryant started sketching multi-ethnic, urban youth, dressed in trendy fashions.
`Bryant tried tocapture in his sketches the “bratty” attitude he had observed. Little‘
`I did he know then that his concept, “Bi-atz,’,’ would become a national, indeed,
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`international, sensation. —
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`33. Bryant was simply trying to figure out a way to make a living doing
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`2 what he enjoyed. Unable to support himself as a freelance artist, however, and
`turning thirty and not wanting to live at home forever, Bryant realized he needed a
`steady job. Based on Mattel’s comments to him before he left its employ in 1998
`indicating an interest in having him remain with the company, he reapplied and
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`secured a position with. Mattel starting in Ianuary 1999.
`34. Mattel hired Bryant back to work exclusively on Mattelis‘
`“collectibles” line, a high-end, expensive line of “Barbie” dol_ls designed for adult
`doll collectors, not children. He began working for the company again on January
`4, 1999. Again,‘ Mattel’s marketing department directed Bryant to create. the
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`designs it wanted to market.
`35.
`Bryant never showed Mattel the ideas, drawings, designs "and concepts
`that he had workedon on his own while he had been gone from the company,
`including the concept for what later became the “Bratz” dolls; He.a1r_'eady-knew
`that Mattel was not receptive to new, creative, innovative ideas. Besi‘des;that,.thjey
`were his, and he was afraid that Mattel would not givehiin credit or compensation.
`36. .
`4 One day he happened to show his concept for ‘-‘Bratz”- dollsvto a friend
`who did ii-eelance work for MGA Entertainment, Inc. (“MGA”).
`37.
`~ Bryant’s friend thought that MGA might be interested in talking to
`' Bryant,‘-and arranged a meeting.
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`38. MGA.ultimatc1y offered Bryant a consulting arrangement. His
`_ agreement with MGA was signed on or about October 4, 2000. Bryant resigned ‘
`from Mattel immediately, giving two weeks notice, but stayed at the company until
`- October 20 to_ finish up and transition the projects on which he had been working.
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`39.
`. On information and belief, MGA was founded in 1979 as a small
`'eonsum.er electronics business and made its first foray into the toy business in 1987
`marketing handheld LCD games featuring licensed “Nintendo” characters, where
`its initial success allowed it the opportunity to obtain additional licenses for such
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`popular properties as the “Power Rangers” and others. By the time Bryant started
`working for MGA in late 2000, the company was selling other kinds of toys and
`d.olls.
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`40. After leaving Mattel, Bryant began working with a team of MGA
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`employees and fieelancers to develop and physically embody Bryant’s concept.
`The development took substantial time, effort, creativity, money, and know—how,
`‘ but with this effort, Brya:nt’s concept for “Bratz” dolls was reduced to practice and
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`became a reality.
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`“Brute” Dolls Revolutionize The Fashion Doll Market
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`41. MGA first unveiled the “Bratz” doll concept at the Hong Kong Toy
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`Fair in January 2001. Inlune 2001, MGA introduced the line to the market.
`. 42.
`.. Unlike Barbie Dolls, the "‘B.ratz” line of dolls and branded products
`(collectively “Bratz. Dolls”) sport a hip, multi-ethnic urban look that appeals to
`contemporary teenage and pre-teen girls. At approximately 9.5 to 10 inches tall,
`the Bratz Dollsare intentionally shorter than Barbie Dolls and look notably
`' different, with large heads, big dramatic eyes and lips, small, thin bodies, oversized
`feet (to emphasize shoe fashion and to stand on their own, unlike “Barbie.,”-which ;
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`‘requires a stand), and up-to-date fashions.
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`_ 43.
`Featuring and embodying the slogan “The Girls With a Passion for
`Fashion!”, Bratz Dolls, invigorated, transformed and expanded the fashion doll
`market, in particular proving popular among “tween” age girls - z‘.e., those between!
`childhood and adolescence - who Mattel had all but abandoned as a market.
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`44. On information and belief, the “Bratz” line has been praised by
`consumers, retailers and toy industry analysts alike. In 2001, the “Brata” line won H"
`the Toy Industry Associat-ion (“TIA”) ,People’s Choice Toy ofthe Year Award, the
`Family Fun Toy ofthe Year Award and Toy Wishes Hot Pick Award. In 2002, the
`“Bratz” line again won the TIA People’s Choice Toy ofthe Year Award, the
`. Family Fun Toy ofthe Year Award. LIMA, the licensing industries official arm,
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`awarded MG/.\’s “Bratz” the best character license of the year as well as the overall
`best licensed property of the year for 2003. MGA’s “Bratz" also earned the coveted
`TIA “Property of the Year” and “Girl Toy of the Year,” in 2003, as well as the
`Family Fun Toy of the Year Award. MSNBC named “Bratz” the “Hottest Toy of
`the Year,” and both MGA and “Bratz” received several other accolades.
`45. According to media reports and business analysts, this success caught
`Mattel by surprise, with many Mattel insiders reportedly assuming that Bratz would
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`be a short-lived fed.
`46. As it turned out, “Bratz” was note fleeting fancy among young girls-
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`- 47.
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`Beginning in 2002, “Bratz” really gave “Barbie” a run for its money
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`as the top selling fashion doll.
`~ 48.
`Bryant continues.to contribute to, and- provide ideas, concepts and
`designs for “Bratz” on an ongoing basis as :1 designer and consultant for MGA. For
`example, Bryant designed a wholly original male character for MGA, which was
`turned into the “Bratz Boyz” line of dolls by:MGA.
`Ma.ttel’s Market Response to “Bratz”
`..In response to “Bratz”, Mattel, in 2002,-rushed to release “My Scene
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`.49’.
`Barbie,” 9. line of fashion dolls under the “Barbie” name that looked much more
`like “Bratz” than the traditional main line “Barbie” Doll. Like “Bratz,” “My Scene
`Barbie” dolls have oversized heads, artfully made-up almond-shaped eyes, large,
`~ overly-linedand lipsticked lips, trendy clothes and hair styles, over-sized feet anda
`more ethnic look. Like the “Bratz” Dolls, “My Scene” Dolls are packaged with two
`outfits and an accessory. And, since fall 2003, like the “Bratz, which are
`"introduced with themes, “My Scene” Dolls are introduced witha theme as well.
`50. After the success ofMGA’s “Bratz Boyz” dolls, Mattelalso‘
`introduced rnale doll characters to the “My Scene” line, even though for 45 years
`the “Barbie” line had only included asingle male doll —— Barbie’s boyfriend “Ken”
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`(whom, after 45 years as her boyfriend, Barbie “dumped” in a 2004 Mattel publicity
`stunt to revive “Barbie” in the face of the “Bratz” success).
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`51. On information and belief, the “My Scene” Dolls, however, have not
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`come close to achieving the popularity and acclaim of “Bratz.”
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`52. A year after the debut of “My Sccnc,” Mattel launched “Flavas,” a line _
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`of urban fashion dolls also intended to appeal to the “tween” market. “Flavas,”
`were poorly received by children, parents and the toy industry, and Mattel
`discontinued the line less than a year after its launch.
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`1VIattel’s Accusations of Copyright Infringement Against Bryant
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`53. Unable to supplant “Brat ” — the more popular, better quality product
`— with the inferior and less popular “Flavas” or even “My Scene,” Mattel changed
`tactics. It turned to disparaging Bryant, and accusing h.im of copying from.Matte1.
`54.
`In or about July 2003, Mattel “sources” told a Wall Street Journal
`-reporter that “[I]nside Mattel, some are convinced the BRATZ borrow liberally
`from a Mattel project that was scrapped at the testing stage in 1998.” Attached
`hereto as Exhibit A is a true and correct copy ofthis article.
`55. .-
`.Matte1"s thinly veiled accusation ofcopyright infringement against
`Bryant took more sub_stanti.ve form when, in April, 2004, Mattel sued Bryant in _
`California state court for, among other things, allegedly “converting” Mattel.’s
`intellectual property (the “Bryant Litigation”). Bryant sought discovery. from
`' Mattel, accordingly, regarding any Mattel idea, concept, projector product
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`allegedly stolen or copied by Bryant‘, including “Toon Teens,” “Diva Stars,” and
`“My-Scene.” Faced with objections from Mattel, Bryant offered to take no further
`discovery on such issues ifMattel would enter into a fact stipulation that it would
`not claim that Bryant copied “Brat-.»;” litom Matte_l’s “Toon Tccns.” Mattel refused
`to enter into such a stipulation. For reasons unknown,_Mattel has not yet sued
`Bryant for copyright infifingernent. It has, however, enlisted a surrogate to take a
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`first-run at attempting to establish infringement, perhaps intending to see what the 4
`outcome might be before launching a direct attack itself.
`56.
`Specifically, in 2002, MGA filed suit in Hong Kong against the
`manufacturers of “Funky Tweenz” (known infitingers of intellectual property in the
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`toy inclustry) (the “Hong Kong defendants”). “Funky Tween2.” is a line of “Bratz”
`knock-off products. In connection with this lawsuit (the “Hong Kong Lawsuit”),
`Bryant has been infonned that MGA filed various documents substantiating its
`ownership of“Bratz,” including with regard to Bryant’s involvement in MCiA’s
`development of “Bratz” and in its reduction to practice ofBryant’s original
`inspirational sketches. Bryant has also been informed that in August 2004 the
`.
`Hong Kong defendants produced to MGA’s counsel unreleasedphotographs of,
`andzdocuments relating to, Mattel’s “Toon Teens” roject — the same ‘ ro'ect Mattel.
`P
`_
`P J
`had mentioned in the Wall Street Journal article as the suppo_sed.origin. of“Bi-atz.”
`The-Hong Kong defendantsinitially refused, however, to authenticate these
`' documents, or to divulge the source ofthese photographs. The defendants also
`refused to explain the purported relevance ofthe documents to the Hong Kong
`A Lawsuit.
`.
`-
`.
`..
`I
`I
`57.
`Finally, however, Bryant has been informed that on October 7, -.2004,
`the Hong Kong defendants revealed that Mattel was the source ofthe “Toon Teens”
`documents and information. Indeed, the HongKong defendants have revealed that
`they - accused copyright infringers —— have a document-sharing agreement with
`a Mattel. Apparently, Mattel prefers to assist known infringexsin Hong Kong in
`trying to prove that Bryant copied Mattel in coming up with “Bratz”, instead of .
`trying to prove it themselves in a United States federal court oflaw — or at least for I
`the time being, that seems to be Mattcl’s- strategy.
`_
`58.
`On information and belief, ‘Mattel, and the same counsel representing
`it in the Bryant Litigation, have told the Hong Kong defendants that “B1-atz” is not
`anloriginal design and have provided documents and other information to those ‘
`11'
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`‘
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`T
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`defendants in an effort to assist such i11fi‘l11gBl‘SlZ0 evade liability for copyright
`infringement of “Bratz” in the Hong Kong action. On information. and belief,
`Matter has told the Hong Kong defendants that the “Too.n'Teens” documents
`provided to such defendants prove that Bryant copied and infringed Mattel’s “Toon
`
`Teens" or other Mattclpropcrty.
`59. Mattel even rushed to register the copyright for its long-shelved “Toon
`
`Teens” during the very same month that it claims to have first learned ofBryant’s
`contract with lw/IGAA, November, 2003, and using the same counsel that Mattel is
`using in the Bryant Litigation. A true and correct copy of this registration is
`attached hereto as Exhibit B. Notably, Bryant is informed that the dates on Matte1’s
`“Toon Teens” drawings and pictures reflect that they were created in 1999, after
`Bryant conceived of “Bratz” in 1998.
`I
`' 60. On information and belief, Matte1’s copyright registration of “Tom 2
`
`Teens” is no coincidence; it is a preliminary step necessary for Mattel to sue Bryant
`
`for copyright infringement.
`61.
`There is no doubt that Mattel intends to get -back at Bryant via false
`allegationsand to try-to obtain‘ control of Bryant’s brainchildany Way it can,
`including falsely alleging that “Bratz” is nothing more than derivative ofMattel’s
`own work(s).V This is wholly untrue. “Bratz,” is an original idea and concept,
`independently conceived and created during a time when Bryant was not working
`for Mattel. The fact that MGA reduced the original designs to practice a.nd lfilfl-.1181‘,
`developed “Bratz” into a highly successful product that now competes directly with
`and has taken market share from Mattel’s “Barbie” line of fashion dolls, including
`as a result of the “Bratz”-inspired and imitating dolls distributed by others, is not to
`
`be under-estimated.
`
`'12
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`26
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`27
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`28
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`

`
`FIRST CLAIM FDR REL! EE
`
`(Declaratory Judgment of Non-infringement)
`Bryant repeats and realleges the allegations contained in paragraphs 1
`62.
`through 61 of this Complaint and incorporates them by reference, as though fully
`and completely set fortli herein.
`'
`63.
`Bryant has a reasonable apprehensi.on that Mattel will bring an action
`against him under 17 U.S.C.A. §§ 101, et seq. alleging that “Bratz” is not an
`independent or original work but, rather, is copied, derived from or infringes
`Matte1’s copyrights in “Toon Teens,” or some other Mattel work; that Mattel is the
`right‘fi.1l owner of his “Bratz” idea, concept or original drawings or works and any
`copyrights and other intellectual property rights therein; and that Mattel alone
`I
`possesses the exclusive rights to exploit such rights.
`A
`i
`64.
`Bryant contends that “Bratz” is his own independent and original idea,
`concept and-work, that “Bratz” dolls were derived from Bryant’s original idea,
`concept and work, and that Mattel has no right in “Bratz” whatsoever. Bryant
`denies that he copied. any of Matte'l’s property or work in conceiving and
`deve1oping...f‘Bratz,” and denies that “Bratz” infringes or was derived from any
`Mattel property or Work.
`I
`65.
`Indeed, “Bratz” and “Toon Teens” are not substantially similar.
`' “Bratz” are sexy, hip, modern fashion dolls with up-to-date’ fashions, and are
`» designed to look like “real teenagers, and the “Bra'tz” themes and playsets are based.
`on places and activities that real teenagers would go to and do. Bryant is informed .
`that “Tom Teens,” in contrast, appear to be childlike, soft-bodied dolls with “baby-
`fa ” and bright, fantasy-colored hair and are, by Mattel’s own statements to the Wall
`' Street Journal, “carto.onish.”
`'
`66.
`An actual and justiciable controversy exists between Bryant and Mattel
`regarding whether Bryant’s ideas, concepts, or designs for, or contributions to,
`
`A
`
`.
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`_
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`13
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`law.
`
`Bryant seeks Declaratory Judgment ofnon-infringement; specifically
`68.
`that his ideas, concepts, and designs for, and contributions to, “Bratz” were and are
`original works, and were and are not copied from, derivative of or infringing on any
`
`“Bratz” were and are original works, or copied from, derivative of or infringing on
`
`Matte1’s works, be it “Toon Teens,” or any other unidentified Mattel work.
`67.
`This actual and justiciable controversy arises under federal copyright
`
`Mattel work.
`
`A judicial declaration ofnon-infringement is necessary and
`69.
`appropriate at this time pursuant to 28 U.S.C. § 2201, so that Bryant may ascertain
`his rights and duties with respect to “Bratz,” including but not limited to dispelling
`any potential cloud over his ability to have assigned or otherwise transferred rights
`to his original works to MGA. It is also necessary to clear B-ryant’s name and
`mitigate the continuing damage to his reputation resulting from Matte-.l’s unfounded
`representations about Bryant-‘made in the press and to thedefendants in the Hong
`. Kong Litigation.
`.
`WHEREFORE, Bryant hereby prays for relief against Mattel as
`
`’
`
`follows:
`
`'
`i
`‘For a Declaratory Judgment of non-infi-ingement.
`1.
`For a Declaratory Judgment that Bryant’s ideas, concepts,
`2.
`- drawings and designs "for, and contributions to, “Bratz” were and are independent
`and original works, and were and are not copied from, derivative of or infringing
`any Mattel work, including, without limitation, Mattel’s copyrighted “Toon Teens.”
`3.
`For a Declaratory Judgment that Bryant was the sole and true
`
`owner of all rights relating to “Bra ” that Bryant heretofore assigned to MGA and
`that such rights were owned by Bryant free and clear ofany ownership claim by
`
`i
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`Mattel at the time he assigned rights to MGA. .
`_
`4.,
`For a Declaratory Judgment that none of Bryant’s contributions
`
`14
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`‘)
`
` “Bratz" by Bryant were independent and original to Bryant.
`
`5.
`
`. For costs of suit herein, including reasonable attorneys’ fees,
`
`and such other and fUI1:heI‘ relief as the court may deem just and proper.
`
`' ROBERT F. MILLMAN
`DOUGLAS A. WIC'K.HA.M
`u
`KEITH A-. JACUBY '
`.'\
`LITTL
`NDELS i
`
`
`Dated: November 2, 2004
`
`‘. m._Angem=3a1g4a102930-r,1o1o
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`_
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`'
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`15'
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`7/18/03 WSJ A1
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`7/19/03 Well. at. J. A1
`zoos wx.-wsa 3914434
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`Page 1
`
`(Copyright
`
`The Wall street Journal
`(c) 2003, Dow Jones 5 company, Inc.)
`
`Friday, July 18, 2003
`
`Dolled Up: To_Lure older Girlo, Mattel Bring: In Hip Hop Crowd
`n...
`
`It Sees Stalwart Barbie Lose Market share, so 'F1evas' will Take on the 'Bratz'
`
`Battle of the Big Heads
`
`By Maureen Tkaoik
`
`LOS ANGELES -- Tika, 10 inches tall with two-toned hair, is of ambiguous ethnic
`origin -— maybe she‘: Asian, maybe Latina -- but her "platinum" medallion,
`ainnrushed jean-jacket; shcll toe aneakera and gxa££iti-streaked packaging make
`one thing clear.
`
`. hip-hop,"-said Crystal Audigier, 10 years old, as she rifled
`.
`"She's like .
`' through the first crate of "F1ava3” dolls to arrive at a Loe~Ange1es FAD schwarz
`store last week.
`
`' Mattel Inc. hopes the dolls are hip enough to take on the 'Bratz." The Flaves
`(pronounced "Flay-vuhs," like "£1avors”)} a sat-of six dolls brought rro design
`to production in just three months, represent a striking gamble fUL the giant toy
`copany. In the 44_yeera since it introduced its bombshell Barbie, Mattel has
`rarely brought out a doll line to compete with her.
`But Mattel, which had become accustomed to its buxom blonde dominating the market,
`has watched in alarm as Barbie has been challenged by a smaller toy maker's Brat:
`-— a line of big—headed, pouty—1ipped characters. While Barbie, which posted about
`$1.7 billion in sales for Mattel last year,
`is still queen, her share of the
`so-culled £nahion—do11 market has fallen. almost entirely due to the Bratz-
`
`After trying -- and failing -— to defeat the Brat: with a trendier Barbie last
`year, Mattel has come up