The U.S. Fourth Circuit Court of Appeals, led by judges Dennis Shedd, G. Steven Agee, and Clyde Hamilton, have upheld a trial court judgment ordering Super Duper Publications to destroy all of its goods that advertise or contain the name “Say” and “And Say.”
Super Duper is a publisher of educational materials for children with autism and other communication disorders. Since its establishment in 1987, the company has developed 15 lines of “Say” products such as Fold And Say articulation and language books, Fish and Say speech and language floor games, and See it Say it flip books for children with apraxia.
The trial court ruled that Super Duper infringed upon Mattel’s See ‘N Say and The Farmer Says toys.
According to Thomas Webber, CEO of Super Duper, the cost of destroying all of the company’s advertising and special education materials that contain “Say” and “And Say” would amount to more than $500,000. Super Duper must also pay Mattel $999,913 of its “Say” profits, and $2,643,844 in Mattel’s attorney’s fees, plus interest.
The company is appealing the Fourth Circuit decision to the U.S. Supreme Court.