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*PRESS RELEASE*

*Fourth Circuit Judges Let Mattel Take " SAY " Away

**from Special Needs Company Super Duper Publications*

***Give Mattel $3.6 Million in Damages Too***

Greenville, South Carolina (MMD Newswire) July 5, 2010 -- In a decision that

turns trademark law on its head, Fourth Circuit Court of Appeals Judges

Dennis Shedd, G. Agee, and Clyde Hamilton, have upheld a trial court

verdict ordering special needs educational company Super Duper Publications

www.superduperinc.com to pay $3.6 million to Mattel Toy Company (of which

$2.6 million is attorney's fees) and to stop using the word SAY in seven of

its product titles.

According to these judges (and trial court Judge Henry Floyd), the use of

the word SAY by Super Duper in titles of speech and language therapy

materials it makes for children with autism and other communication

disorders, infringes on the trademark of a Mattel toy called SEE 'N SAY and

dilutes this Mattel trademark.

http://pacer.ca4.uscourts.gov/opinion.pdf/091397.U.pdf

The court reached this conclusion even though there was no evidence at trial

that for more than 17 years of Super Duper's existence anyone had ever been

confused between a Super Duper SAY educational product and the Mattel toy.

The court reached this conclusion even though there was no evidence that

people think that the Mattel toy named SEE 'N SAY is " famous " similar to the

names BARBIE or KODAK.

The court reached this conclusion even though there was no evidence that

anyone ever thought of the Mattel toy when they heard the names of Super

Duper's SAY educational materials like FISH AND SAY, SORT AND SAY, or SEE IT

SAY IT.

Significantly, instead of issuing a published opinion in which they would

have had to analyze the evidence according to established trademark law, the

three judges chose to issue an " unpublished " opinion, which the court

emphasized is " not binding precedent in this circuit. " The result was Judges

Shedd, Agee, and Hamilton rubber stamped Judge Floyd's trail court decision

even though the evidence did not support this incredibly unfair result.

The trial record indicates in 1987 Super Duper began using the word SAY in

titles of books, games, card decks, and other materials it created for

special needs children. www.superduperinc.com For 17 years Super Duper

produced SAY materials and obtained registered trademarks on its SAY

products without objection from Mattel or any person and with the approval

of the US Patent and Trademark Office.

In 2004, Mattel opposed Super Duper's application to register the name SORT

AND SAY on a series of educational magnetic games, claiming consumers were

likely to confuse these educational products with Mattel's SEE 'N SAY

electronic toy. Mattel later sought to cancel three other registered SAY

trademarks owned by Super Duper. The dispute ended up in federal court,

where Super Duper sought protection of the court, Mattel sued Super Duper

for $10 million of Super Duper's profits, claiming Super Duper had engaged

in trademark infringement and trademark dilution.

For those of you who are not familiar with this toy by its name, SEE 'N SAY

is an electronic toy that plays a sound when you pull a lever. ( " The cow

says...moooo. " )

Super Duper's highly specialized materials are used by professionals in

therapy to help children with autism and other communication disorders

improve their speech and language skills. Mattel's toy is used as a

plaything by children. The only professionals to testify at trial, two

speech pathologists, stated they had used many Super Duper SAY products in

therapy and had never confused them with the Mattel toy.

According to the trial testimony of Super Duper owners and Sharon

Webber, " these products completely different, and the chances of anyone ever

confusing them are nearly impossible " . Mattel sells its toys to the general

consumer market through large retail outlets like Wal-Mart and Target, while

Super Duper sells its educational materials primarily to speech pathologists

and special educators only through its own mail order catalog and website.

The two companies never attend the same trade shows, have completely

different packaging designs and logos, advertise in entirely different media

outlets, and have no overlap in distributing their products.

In its appeal before Judges Shedd, Agee, and Hamilton, Super Duper argued

that a proper application of the Fourth Circuit's seven-step trademark

infringement analysis would lead the court to conclude that there was no

likelihood of confusion between the Super Duper SAY products and the Mattel

toy. In their opinion, the judges chose not to apply this seven step

analysis, and instead summarily ruled that the " likelihood of confusion "

issue was a matter for the jury to decide.

And that is not all.

The court went even further by upholding the jury's finding that Super

Duper's use of SAY diluted the Mattel SEE 'N SAY mark. In order to reach

this conclusion, the jury had to find that:

(1) the term SEE N' SAY was a " famous " mark on a level similar with marks

such as BARBIE and KODAK;

(2) consumers " associate " the Super Duper SAY names with the name of the

Mattel toy (even though Mattel did not present ANY evidence of this

association at trial.) In other words, the judges upheld the jury finding

that when average people hear the name of these seven Super Duper SAY

therapy products, like its " FISH AND SAY " game or SEE IT SAY IT flip book,

they immediately think of the SEE 'N SAY Mattel toy and believe that Mattel

has made FISH AND SAY or SEE IT SAY IT educational materials; and

(3) Mattel was entitled to $1 million in profits that Super Duper had made

on these SAY products since 1987, even though Mattel admitted the sale of

Super Duper's items did not impact Mattel's sales at all.

Super Duper is appealing this decision.

*Media Contact: *

Name Wolfe

Email speakup@...

Phone * 864-243-9000 *

(Greenville, SC - July 26, 2010) Judges Dennis Shedd, G. Agee, and

Clyde Hamilton* of the U.S. Fourth Circuit Court of Appeals have upheld an

order by trial court Judge Henry Floyd in favor of Mattel Toy Company that

requires Super Duper Publications, a provider of educational materials for

children with autism and other communication disorders, to destroy all of

their goods that advertise or contain the name SAY and AND SAY on seven

product lines. The trial judgment was obtained for Mattel by lead attorney

Holleman, a Democratic candidate for South Carolina Superintendent of

Education.

According to Webber, CEO of Super Duper, the cost of complying with

Judge Floyd's order and destroying all advertising and other SAY special

education related materials amounts to over a half-million dollars and

continues to grow.

" I believe it is a tragedy that Mattel brought this action against us and

that the Courts have concluded that we must destroy our SAY special needs

materials, " said Mr. Webber. " We wanted to at least be able to donate these

items to charity so children with autism and others who desperately need

speech and language therapy products could benefit from using them. But

Mattel and the Courts did not provide for this option in their orders. "

Mr. Webber added, " Mr. Holleman and Mattel were able to convince these

judges that because our speech and language products had the words SAY and

AND SAY in them, they infringed upon and diluted two Mattel toys called SEE

'N SAY and THE FARMER SAYS. "

Sharon Webber, a speech-language pathologist, created Super Duper's first

SAY workbook in 1987 to help children with speech articulation problems say

their R sound correctly. Over the years, Super Duper developed 15 lines of

different SAY products like FOLD AND SAY articulation and language books,

FISH AND SAY speech and language floor games, and SEE IT SAY IT flip book

for children with severe speech problems known as apraxia.

Super Duper registered these SAY trade names with the full approval of the

U.S. Patent and Trademark Office. No one objected to these names until 2004,

when Mattel opposed Super Duper's filing of a trademark application for the

name SORT AND SAY on a line of magnetic educational board games.

Today, Super Duper provides children with autism and others with over 900

unique special needs educational items. It also has over 100 employees.

www.superduperinc.com

The trial order held Super Duper had infringed on two of Mattel's SAY toy

trademarks.

Mr. Webber contends, " The issue in a trademark infringement case is whether

or not consumers are likely to be confused between who makes and sells a

product. In my opinion, there is virtually no evidence to support the

finding that consumers would likely to be confused between our SAY

educational materials and Mattel's SAY toys. NO ONE has EVER been confused

between our products over the 23 years we have been in business. Plus, our

special needs educational materials are NOTHING like Mattel's toys. "

We also disagreed with the court that we had diluted Mattel's trade names.

The judges ruled the trade names SEE 'N SAY and THE FARMER SAYS were

" famous " under dilution law. Everyone knows BARBIE is famous, but I don't

think one person in a hundred can tell you what the SEE 'N SAY or THE

FARMERS SAYS toys are. "

Nevertheless, due to the Mattel lawsuit and Mr. Holleman's efforts, Super

Duper was ordered to destroy its SAY goods. It also must pay Mattel $999,913

of its SAY profits, and $2,643,844 in Mattel's attorney's fees, plus

interest.

Super Duper is appealing the Fourth Circuit decision to the U.S. Supreme

Court.

For more info on this matter, go to www.speakupforsay.com

* The other Judges on the Fourth Circuit who refused Super Duper's Petition

for Rehearing are Chief Judge B. Traxler, Jr.; Judge J. Harvie

Wilkinson III; Judge V. Niemeyer; Judge M. Blane ; Judge

Gribbon Motz; Judge B. King; Judge L. ; Judge Allyson K.

Duncan; Judge Andre M. ; and Judge Barbara Milano Keena

*Media Contact:*

Name: Wolfe

Email:

speakup@...<speakup@...?subject=Super%20Duper%20Orde\

red%20to%20Destroy%20$500,000%20of%20Special%20Needs%20Goods%20>

Phone: 864-243-9000

Carol in IL

Mom to , 9 DS

My problem is not how I look. It's how you see me.

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