It is not often that I’m handed a Cease and Desist notice for my online activity. Well, that’s just what happened a couple of days ago.
Apparently a webpage I created around 6-7 years ago, where an ASP version of a Magic 8 Ball can be asked a question a will give you an answer in true Magic 8 Ball fashion, has been noticed by one of Mattel’s lawyers (Perkins & Dunnegan) and they claim the webpage “infringes Mattel’s MAGIC 8 BALL trademark in violation of 15 USC 1114 (a), and dilutes the MAGIC 8 BALL trademark in violation of 15 USC 1125 (c).” Copy of the letter here.
The thought that crosses my mind is “How does having this webpage in any way cause a negative impact on the brand that Mattel has created?” If anything, it’s increasing awareness of the existence of this “Magic 8 Ball”. Contrary to what some people believe, the world extends way beyond American borders and the majority of the world’s population are totally unfamilier with American brands. I’ve never seen a Magic 8 Ball here in the UK and I’d be surprised if many people knew what it was. Yet, having more references to this product may help stimulate international demand and raise curiously as to what this magical item may be.
Looking up Perkins & Dunnegan on the web I see that they have represented Mattel previous, in the “Showing
of Barbie Doll’s Head on Sex web site” case, where the judge ruled in favour of the defendant.
“Defendant’s ‘touch-ups’ of the dolls plus the setting she creates for them transform, to put it mildly, the original doll to an extent beyond merely supplanting it,” Swain wrote. “A different analysis would apply if Defendant had, for example, dressed Barbie dolls in a different style of cheerleader outfit than those marketed by Mattel. To the Court’s knowledge, there is no Mattel line of ‘S&M’ Barbie.”
I wonder if I can claim the same defence in that my implementation of the Magic 8 Ball is really a website and not really a ball at all. It seems like Mattel’s laywers have a track record of chasing people to remove any reference to the Magic 8 Ball (here, here and here). I wish them all the luck in the world and wonder how long Mattel will see this as being constructive.