Update — Patricia Day Settles with Barbie

I previously blogged about Patricia Day’s lawsuit against Barbie at this link.

Last spring, Mattel and Ms. Day quietly settled the lawsuit.

Court documents reveal, however, that the case is not over yet.

When Ms. Day filed her lawsuit, she also named an Indiana defendant, Wonderama Toys.  She did this presumably to get her case in a federal court in Indiana so that she could take advantage of the state’s expansive Right to Publicity statute.

Wonderama Toys was not happy about being picked for this role.  And just hours before Ms. Day filed her voluntary dismissal of the lawsuit, Wonderama filed a counterclaim against Ms. Day seeking attorney fees.

Wonderama asserts that other than being listed on Mattel’s website as a store that sells Barbies, it had no connection to the Hard Rock Barbie.  Wonderama also maintains that because it never bought or sold a Hard Rock Barbie, it could not have violated Indiana’s Right to Publicity Statute.  Wonderama thus seeks to be considered a prevailing party under the statute and entitled to attorney fees.

Not related to the legal issues, but fun to point out — Wonderama’s memorandum in support of summary judgment cites to the Horrorpops’ songs “Psychobitches Outta Hell” and “Girl in a Cage.”   The memorandum also contains a large photograph of Ms. Day in all her inked-up Danish, psychobilly glory.  Memorandums of law rarely get better than that.

Not to be outdone, Ms. Day’s attorneys reference Alice in Wonderland in their brief’s opening paragraph:

Wonderama Toys (“Wonderama”) has transported us all to Wonderland. With its “Motion for Summary Judgment,” we have descended deep into Alice’s Rabbit Hole—a fantastical realm devoid of any pesky justiciability requirements dictated by Article III of the United States Constitution. While there, we have unwittingly been invited to a “tea party” that would make the Mad Hatter proud.

As for the merits of the counterclaim, it does appear that Patricia Day used the Wonderama Toys as a means to forum shop.  It doesn’t seem fair that Wonderama was pulled into this case simply because it is located in Indiana.   But those are the breaks.

And it is probably unlikely that Wonderama can establish that it is a prevailing party.  I’m not that familiar with the pleadings, but it sounds like customers could have purchased Hard Rock Barbie from Wonderama. The doll, in addition, was advertised on other sites as being available at Wonderama.


~ by siouxsielaw on November 9, 2011.

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