This opinion is about discovery in an infringement case involving POWERWHEELS, Dora the Explorer, Spider-Man, Strawberry Shortcake and Ninja – under the ‘Lil Quad and PowerQuad marks.
UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF NEW YORK
2008 U.S. Dist. LEXIS 89439
Decided November 4, 2008, Opinion by: Honorable Hugh B. Scott, United States Magistrate Judge:
This is a trademark and copyright infringement and common law unfair competition action regarding toy ride-on quad vehicles. The plaintiffs claim trade dress infringement and copyright infringement of their “‘LIL QUAD” battery powered ride-on quad vehicles under their POWERWHEELS(R) brand, bearing the Nickelodeon channel characters Dora the Explorer and Diego. Plaintiffs allege that defendant’s “POWER QUAD” bearing the indicia of Marvel Comics’ Spider-Man infringes on their ‘LIL QUAD design and claims that defendant has been selling these infringing ‘LIL QUAD toys since 2006. (See Docket No. 29, Pls. Memo. at 2; see generally Docket No. 1, Compl.)
On October 30, 2007, plaintiffs served their Interrogatories and requests for production (id. at 3; Docket No. 29, Kane Decl. P 2, Exs. A (Interrogatories), B (requests for production)). After over three months (including repeated requests for a response), defendant served plaintiff with its discovery responses (Docket No. 29, Pls. Memo. at 3; Docket No. 29, Kane Decl. PP 3-4, 5, Exs. C, D, E (Interrogatory responses), F (document production responses)). On February 15, 2008, plaintiffs wrote to defendant about the deficiencies in defendant’s production, outlining several non-responsive Interrogatory responses and categories of documents not produced (id.; Docket No. 29, Kane Decl. P 6, Ex. G).
Defendant basically responded with information about the Spider-Man POWER QUAD. Plaintiffs allege that defendant infringes on their LIL QUAD mark with other toys (for example POWER QUAD toys with Strawberry Shortcake, Ninja, and Marvel Heroes trade dress) and defendant thus needs to supplement its production as to these other toys (see Docket No. 29, Kane Decl., Ex. G, at 1-3). Interrogatory Number 8 sought defendant to identify which part of the LIL QUAD design was functional or otherwise not protectable by copyrights, but defendant objected that it was premature since it had not examined plaintiffs’ products (Docket No. 29, Kane Decl., Ex. A, Interrog. No. 8; Docket No. 29, Kane Decl., Ex. G at 3-4). Plaintiffs sought documents regarding defendant’s distribution of the POWER QUAD toys, the costs to produce, documents regarding adverting and marketing of these toys, and communications with retailers about advertising and about this action (Docket No. 29, Kane Decl., Ex. G, at 4-5).
Plaintiff’s motions are granted in part and denied in part. The granted motions are about packaging materials and access to employees responsible for packaging materials.