Archives for posts with tag: tmnt

This is a 2005 case of school bullies picking on an effeminate teenager, and the student sued the school district for deliberate indifference to the same-sex gender harassment. He claims he is not gay but basically he sued for being called gay. The student won at trial and this opinion upholds the judgment, a major win for anti-bullying and gay rights.

DYLAN J. THENO, Plaintiff,
v.
TONGANOXIE UNIFIED SCHOOL DISTRICT NO. 464, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
394 F. Supp. 2d 1299

Decided, October 18, 2005, opinion by Judge John Lungstrum:

This case arises from same-sex student-on-student harassment of plaintiff Dylan J. Theno while he was a junior high and high school student in defendant Tonganoxie Unified School District No. 464. The jury returned a $ 250,000 verdict against the school district on plaintiff’s claim that the school district violated Title IX of the Education Amendments Act of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., by being deliberately indifferent to the harassment. This matter is presently before the court on the school district’s renewed Motion for Judgment as a Matter of Law (Doc. 148) pursuant to Fed. R. Civ. P. 50(b).

One of the claims of the school district’s motion is “that the evidence at trial was insufficient to prove that plaintiff was harassed based on his gender”

The Court explains:

The school district argues that there was no evidence plaintiff’s harassers were motivated by perceptions that he was effeminate or homosexual. Rather, they simply picked on him and teased him by using sexually charged words and themes as a crude topic for teenage banter. According to the school district, for example, “the masturbation jokes were motivated by the harassers’ desire to be funny, or to provoke or embarrass plaintiff using a socially awkward subject.” The school district argues that plaintiff tried to fashion a gender-based harassment claim “by showing that he was not a typical boy’ because he had an unusual hairstyle, enjoyed Tae Kwan Do, and wore an earring,”

Therefore,

The school district contends that, viewing the evidence in the light most favorable to plaintiff, the harassment was motivated by his failure to meet social stereotypes, not gender stereotypes, inasmuch as his individual style and interests were considered “uncool” by his peer group. Thus, the school district argues that the harassment was akin to plaintiff having been called “geek,” “weirdo,” or “spaz.”

Plaintiff testified to being called “pussy”, “flamer”, “faggot”, and “queer”. So the Court disagrees with the school:

Certainly, this [the school’s argument] is one permissible view of the evidence and if the court were to view the evidence in the light most favorable to the school district, the jury could have properly found for the school district rather than plaintiff on this element. But of course the court must view the evidence in the light most favorable to plaintiff at this procedural juncture. Viewed in such a light,the court concludes after careful consideration of this issue that the evidence was sufficient for the jury to find that plaintiff’s harassers were motivated by his failure to conform to stereotypical gender expectations.

Specifically, the Court notes that

Plaintiff testified at trial that his childhood interest in the Teenage Mutant Ninja Turtles sparked his interest in Tae Kwan Do. He began doing Tae Kwan Do when he was seven years old and continued through his high school years, and he was apparently quite good at it.

And there they are again. The Ninja Turtles brought up in a Federal Court opinion for no particularly necessary reason. Here they justify the plaintiff’s interest in Tae Kwon Do as an ordinary boyhood interest, but also they appear here again serving as a symbol of multicultural values. Recall that the Ninja Turtles were cited in connection with the Burger King Kids Club because they represented a prior multi-ethnic cartoon. Recall also the similarities between the BK Kids Club and the modern television show “Glee”. Further note that the story of this Dylan Theno case, that of (gay) bullying is a familiar plot on the show.

dylan thenoglee curt
glee slushy

Dylan Theno’s story has received substantial attention. Here are a few links for some more information:

A fellow wordpress blog called “Dylan Theno Fights the System” explains a lot.

ABC news covered the story in August 2005 when Theno first won the jury trial: “School Ordered to Pay $250,000 to Bullied Teen”

And a December 2005 article (two months after the case decision above) explains that a settlement was ultimately reached “Student reaches $440,000 settlement in sex harassment case”

A video posted in 2011 has Theno discussing the bullying.

This 2005 tax case involved three movies with Ninja in the title. It is also the only federal case with both “ninja” and “zombies” in the opinion – See ZombieLaw: “Astro Zombies in Tax Law” for a prior writeup of this case: Santa Monica Films v. IRS.

SANTA MONICA PICTURES, LLC, PERRY LERNER, TAX MATTERS PARTNER, * Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent CORONA FILM FINANCE FUND, LLC, PERRY LERNER, TAX MATTERS PARTNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Nos. 6163-03, 6164-03
UNITED STATES TAX COURT
T.C. Memo 2005-104; 2005 Tax Ct. Memo LEXIS 104; 89 T.C.M. (CCH) 1157

Opinion by Judge Michael Thornton, filed May 11, 2005

The following film titles and development projects were listed in Schedule 1.6(b) of the exchange and contribution agreement as assets of SMHC:

57. Ninja Hunt

58. Ninja Showdown

59. Ninja Squad



All three are listed by the Court as 1987 movies (though IMDB suggests 1986). The Opinion also reveals that they were originally in the “EBD film library”. They were then sold. The Court notes difficulties in determining the market price of movies because of issues finding comparable films. For comparison noting the movie “Teenage Mutant Ninja Turtles”.

in 1993, New Line sold 200 features to Turner Broadcasting for $ 500 million ($ 2.5 million per title); … in 1997, Orion/Samuel Goldwyn sold 2,000 features to MGM for $ 573 million ($ 286,500 per title).

[footnote #135]:
The film library that New Line sold to Turner Broadcasting included the film titles: “Teenage Mutant Ninja Turtles“, “Misery”, and “City Slickers”. The film library that Orion/Samuel Goldwyn sold to MGM included the Academy Award-winning film titles: “Amadeus”, “Platoon”, “Dances With Wolves”, and “The Silence of the Lambs”.

The point is that these movies are not particularly comparable. The transactions involved shifted the losses from failed movies and were deemed to be a tax shelter. The Court here upholds the IRS ruling over the studio’s arguments.

This is, of course, not the first NinjaLaw Federal case to mention the Teenage Mutant Ninja Turtles, nor to mention them even though they are not necessarily relevant to the particularities of the case. Here in 2005, the Turtles movie is listed among a number of modern classics and blockbuster successes.

The 1999 district court opinion is by Judge Gregory M. Sleet about a partnership in bankruptcy. The Court has to determine whether certain payments were preferential and to be reclaimed by the company’s debtors. Here we see another unnecessary reference to Teenage Mutant Ninja Turtles, again likening them to Power Rangers and this time also to Barney.

In re: COLLEGEVILLE/IMAGINEERING, L.P., Debtor. COLLEGEVILLE/IMAGINEERING, L.P., Plaintiff, v. L.J. LIFF AND ASSOCIATES, LIMITED, Defendant. COLLEGEVILLE/IMAGINEERING, L.P., Plaintiff, v. LAWRENCE J. LIFF, Defendant.

Chapter 11, Civil Action No. 97-413-GMS and Civil Action No. 97-414-GMS
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
1999 U.S. Dist. LEXIS 23622
October 5, 1999, Decided

In explaining how the company’s business went bad:

this new Partnership was fairly successful. Like its predecessor and namesake, the Partnership would build up a large inventory of non-licensed costumes (e.g., ghosts, goblins, witches, skeletons, etc.) early in the year and, then, secure the crucial licenses for the more popular characters (such as the Teenage Mutant Ninja Turtles or Barney) a few months before Halloween. As a result, the Partnership enjoyed a competitive advantage over other costume manufacturers since stores typically buy all of their Halloween products from one vendor. Because of its historical success in this area, the Partnership was able to fund its activities by borrowing heavily from its lender, Meridian Bank, during the year and then paying off its line of credit with the proceeds from its Halloween sales after the season had ended. For the most part, the Partnership’s loans were unsecured.

However, in the Summer of 1994, the Partnership learned that it would not able to obtain a license for the most popular characters of the season—the “Power Rangers.” Consequently, its sales suffered terribly and, by the end of the year, the Partnership had incurred a $10 to $12 million shortfall and was thus in default with respect to its obligations to Meridian.

Previous NinjaLaw cases about Ninja Turtles:

First mention of TMNT in Federal Courts
Sun Dun v Coca Cola – August 15, 1991

Teenage Mutant Ninja Turtles again – Retromutagen Ooze
Monarch v. Ritam – June 12, 1992

Ninja Turtles and Hollywood’s Horizontal Conspiracy
El Cajon v. AMC – October 23, 1992

First mention of Ninja Turtles in F.Ct. where it’s actually about them
Mirage Studios v. Weng et.al. – April 29, 1994

Burger King Kids Club with Mutant Ninja Turtles – multi-ethnic path to Glee and Celebrity Apprentice
CK Company v. Burger King – September 29, 1994

Ninja Turtles again, this time with FASA’s BattleTech, ExoSquad, RoboTech and Playmates
Fasa v. Playmates – June 19, 1995
(WITH POWER RANGERS)

Spam vs Spa’am with Splinter from TMNT and Pumbaa from Lion King
Hormel Foods v. Jim Henson Productions – September 22, 1995

Ring Pops not utilitarian so trademark protects after patent expired
Topps Company v. Verburg – December 12, 1996

Ninja Turtles as euphemism for Prison Response Team
Clark v. Westchester County – April 30, 1998

Statue of a Ninja Turtle – heroin in it
Reyes v. Miller – June 23, 1999

In this 1996 case Topps sued to protect its product, the Ring Pop, from competition. One of the reasons it won was because of the substantial advertising to non-sophisticated purchasers (kids), by means of cartoons. And so of course again, appearing somewhat unnecessarily in a Federal Court opinion, the Teenage Mutant Ninja Turtles.

ring pops

THE TOPPS COMPANY, INC., Plaintiff, – against – GERRIT J. VERBURG CO. and B.I.P. HOLLAND B.V., Defendants.
96 Civ. 7302 (RWS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
1996 U.S. Dist. LEXIS 18556; 41 U.S.P.Q.2D (BNA) 1412

December 12, 1996, Decided

The Court explains:

During the mid-1970’s, Topps developed the product for which it now seeks protection, the Ring Pop lollipop. It is comprised of a candy portion in the shape of a solitaire jewel, supported by a plastic base portion in the form of a stylized, or “play,” ring. The Ring Pop is held by inserting a finger through the ring, and the candy is then licked.

In 1975, Topps filed patent applications in the U.S. Patent Office on the “inventive” ornamental design for a diamond gemstone ring candy and was awarded two patents, Nos. Des. 242,646 and Des. 242,645 on December 7, 1976. These patents expired on December 7, 1990, but reference to them continues to appear on the Topps’ packaging.

On June 1, 1976 a trademark was registered for Ring Pop by Topps and on July 26, 1994 a trademark was issued consisting of “a candy portion in the configuration of a jewel mounted on a stylized ring.”

The Court continues explaining the high volume of sales and about

Topps’ advertisements on broadcast television during the past ten years of the Ring Pop emphasized the configuration of the product during children’s programming on well-known, popular programs, such as Tom & Jerry Cartoons, Teenage Mutant Ninja Turtles, and Power Rangers, shows specifically aimed at the children for whom the Ring Pop candies were conceived. The buyers of these products are not sophisticated purchasers.

Because the Court will rely on a likelihood of confusion analysis for the trademark infringement claims, the fact that the competing candy products “are expressly intended to be consumed by children” is important. The Court also notes other deceptive aspects of defendant’s packaging and that it “fails to meet the requirements set by regulations” of the US FDA as to nutritional labeling.

Though the competing product has been available in Hong Kong for as long or longer than the Topps Ring Pop product, and despite the expiration of Topps patent, trademark still protects the Ring Pop.

There is no inherent conflict between trademark rights under the Lanham Act and patent rights. Because the Lanham Act and the patent statute are both federal statutes, there is no preemption. A product can be both patentable and protected by trademark rights as long as the particular design protected does not have a utilitarian function.

Therefore, deciding the Ring Pop is not a functional design, the Court ordered a preliminary injunction. And in a subsequent motion decision, (April 28, 1997, 961 F.Supp. 88) the claims against defendant-manufacturer from Hong Kong were dismissed for lack of personal jurisdiction, leaving only the claim against the US distributor (which I assume was probably settled out of court..?).

Meanwhile, it seems a new relative of this case is coming back to the Courts. A false marketing claim was filed in May 2011, alleging Topps is violating marketing laws by continuing to list the patent numbers on Ring Pop packaging after the patents expired. See “Ring Pops: A Fun Way to Teach Your Kids about False Patent Marking” posted by Travis Burchart, Jun 2011 The complaint alleges that each Ring Pop sold violates marketing laws and if the Court agrees, Topps will be liable for a LOT of damages.

Finally, recall, this is not the first time we at NinjaLaw have seen the turtles mentioned unnecessarily and also not the first time mentioned with the Power Rangers. Last time we saw the Turtles team up with the Power Rangers in Federal Court, they served to exemplify the business model of cartoon merchandising. Here they help protect their sponsor Topps (baseball cards and candy and what else?), again implicating the susceptibility of kids to product marketing.


tmnt power rangers animation handshake
.

Previous NinjaLaw cases about the Ninja Turtles:

First mention of TMNT in Federal Courts
Sun Dun v Coca Cola – August 15, 1991

Teenage Mutant Ninja Turtles again – Retromutagen Ooze
Monarch v. Ritam – June 12, 1992

Ninja Turtles and Hollywood’s Horizontal Conspiracy
El Cajon v. AMC – October 23, 1992

First mention of Ninja Turtles in F.Ct. where it’s actually about them
Mirage Studios v. Weng et.al. – April 29, 1994

Burger King Kids Club with Mutant Ninja Turtles – multi-ethnic path to Glee and Celebrity Apprentice
CK Company v. Burger King – September 29, 1994

Ninja Turtles again, this time with FASA’s BattleTech, ExoSquad, RoboTech and Playmates
Fasa v. Playmates – June 19, 1995
(WITH POWER RANGERS)

Spam vs Spa’am with Splinter from TMNT and Pumbaa from Lion King
Hormel Foods v. Jim Henson Productions – September 22, 1995

This case was brought by the Hormel Foods, makers of SPAM processed meat product, against Jim Henson Productions, producers of the Muppets based on allegations of infringement by the character Spa’am, a pig puppet.

HORMEL FOODS CORPORATION, Plaintiff, -against- JIM HENSON PRODUCTIONS, INC., Defendant.
95 Civ. 5473 (KMW)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
36 U.S.P.Q.2D (BNA) 1812

Decided – September 22, 1995

Spam:

Spa’am:

The Court opinion states:

This lawsuit is sparked by the prospective appearance of a new Muppet who joins Kermit, Miss Piggy and others in the movie “Muppet Treasure Island,” due to be released in about four months. The creators of the Muppets, Jim Henson Productions, Inc. (“Henson”), hope to provoke laughter by naming the new Muppet (an exotic, wild boar) “Spa’am”; they believe that the association between the exotic, wild boar and the tame, familiar luncheon meat, SPAM, will cause viewers to laugh. Hormel Foods Corporation (“Hormel”) which manufactures SPAM, finds nothing humorous in the association, and fears that the use of the Spa’am character will cause a drop off in the consumption of SPAM, and a drop off in the consumption of SPAM tee-shirts and other SPAM-related merchandise. Although Henson has urged Hormel, effectively, to “lighten up,” and to see the parody as a positive development for Hormel (especially in light of the fact that SPAM is regularly subjected to much more negative portrayals, Hormel insists on its right to a legal determination of whether Henson’s use of the Spa’am character and name are lawful.

Specifically, Hormel alleges that Henson’s proposed use of the Spa’am character and name in the motion picture and on related merchandise constitutes trademark infringement and false advertising in violation of the Lanham Act, 15 U.S.C. §§ 1114(1), 1125(a) (1988). Additionally, Hormel raises state law claims of common law unfair competition, trademark dilution, N.Y. Gen. Bus. Law § 368-d (McKinney 1984), and deceptive practices, N.Y. Gen. Bus. Law § 349 (McKinney 1988). For the reasons stated below, Hormel’s claims are all denied.

FOOTNOTE #1
Two of the dozens of examples of negative jokes involving SPAM submitted by Henson are noted below.

1) An article from the Austin American-Statesman describing “Spampers, one of the entries in Spamarama (an annual contest among cooks where the dishes must include SPAM), which “involved a mother and her 3-month old baby girl, a diaper pail and a SPAM [pate].” According to Spamarama’s founder, “A lot of the judges became ill.” (Def. Ex. W10, Austin American-Statesman, Mar. 30, 1995, at 61.)

2) An excerpt from the television cartoon “Duckman,” in which Duckman uncovers “the secret ingredient to SPAM.” What the secret ingredient may be is left to the viewer’s imagination as Duckman is shown at “Murray’s Incontinent Camel Farm” observing camels in diapers on a conveyor belt heading into what is, presumably, the SPAM factory. (Def. Ex. W5.)

FOOTNOTE #2
As Henson notes, there are three issues before the court: (1) the use of Spa’am in the motion picture; (2) the use of the Spa’am likeness on merchandise; (3) the use of the Spa’am name on merchandise. With respect to the third issue, Henson has stated that it has shelved its past plans to use the Spa’am name on merchandise, pending a decision by this court as to their lawfulness. It has introduced several examples of how it would like to use the Spa’am name in the future. Hormel has objected to the court’s ruling on the third issue because Henson has stated that it has no current plans to use the Spa’am name on merchandise, absent court approval. Thus, Hormel argues, if the court were to reach the issue, it would be issuing an advisory opinion in violation of the “cases or controversies” clause of the Constitution. U.S. Const. art III, § 2, cl. 1. Because the alternative to opining now is to place the parties in the position of reacting hastily to last-minute decisions by Henson, I believe that the parties’ interests are served by the court’s considering the proffered, hypothetical plans. The court’s view will, of course, be dictum.

Evidence included expert testimony about consumer behavior and children’s literature:

Dr. Laura A. Peracchio, an expert in consumer behavior, states in her report that Spa’am is unappealing and will lead to negative associations on the part of consumers because he has small eyes, protruding teeth, warts, a skull on his headdress, is generally untidy, and speaks in a deep voice with poor grammar and diction. I am, however, persuaded by the report and testimony of Anne Devereaux Jordan, an expert in children’s literature, who notes that children (and adults) often have positive associations with characters that may not appear classically handsome. Among other examples, Ms. Jordan points to “Pumbaa,” the good-natured warthog in Walt Disney’s film The Lion King, and “Splinter,” the aging rat who acts as teacher and father-figure to the “Teenage Mutant Ninja Turtles.” Furthermore, a boar sharing some of the characteristics that Dr. Peracchio relies on has been used successfully as the image of meat products. See Def. Ex. VV (label from “Boar’s Head Brand” beef frankfurters showing boar with small eyes and protruding tusks). I agree with Ms. Jordan that a narrow focus on Spa’am’s physical appearance is insufficient to determine whether consumers, of any age, will have positive or negative associations with Spa’am.

Master Splinter from Teenage Mutant Ninja Turtles:

Pumbaa from Lion King:

Spa’am – Pig Chief – muppets action figure:

And so again we have a Federal Court mentioning the Teenage Mutant Ninja Turtles in a case that doesn’t really involve the Turtles, and dismisses claims of intellectual property.

Previous NinjaLaw cases about the Ninja Turtles:

First mention of TMNT in Federal Courts
Sun Dun v Coca Cola – August 15, 1991

Teenage Mutant Ninja Turtles again – Retromutagen Ooze
Monarch v. Ritam – June 12, 1992

Ninja Turtles and Hollywood’s Horizontal Conspiracy
El Cajon v. AMC – October 23, 1992

First mention of Ninja Turtles in F.Ct. where it’s actually about them
Mirage Studios v. Weng et.al. – April 29, 1994

Burger King Kids Club with Mutant Ninja Turtles – multi-ethnic path to Glee and Celebrity Apprentice
CK Company v. Burger King – September 29, 1994

This is a case series from the mid to late 1990s involving Fasa’s Battletech characters and toy products based on those characters made by toy company Playmates, as relates to other toy products based they made for the ExoSquad characters.

battletech

FASA CORPORATION and VIRTUAL WORLD ENTERTAINMENT, Plaintiffs, v. PLAYMATES TOYS, INC., Defendant.
No. 93 C 2445
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTERN DIVISION
892 F. Supp. 1061; 1995 U.S. Dist. LEXIS 8741; 35 U.S.P.Q.2D (BNA) 1766
Decided – June 19, 1995

Beginning on June 19, 1995, the Court began the first phase of a potential four phase bench trial in this matter which involves an intellectual property dispute involving futuristic robot-like battle toys

Previously an opinion of the Court in FASA Corp. v. Playmates Toys, Inc., 869 F. Supp. 1334 (N.D. Ill. 1994), explained:

The present lawsuit centers on Playmates’ alleged infringement of FASA’s intellectual property and proprietary rights in BATTLETECH by designing and marketing the EXOSQUAD toy line

And explaining (footnotes omitted):

BATTLETECH – created by FASA in 1984 and originally sold as a role-playing game – is a fictional universe set in the 31st century. The BATTLETECH universe is comprised of empires such as the Star League, an empire consisting of five cosmic houses each of which encompasses hundreds of interstellar worlds. Each house seeks control of the galaxy. The battles between worlds are dominated by BattleMechs (also called Mechs), massive man-shaped, robot-like tanks of various shapes and designs which are piloted by human soldiers called MechWarriors. Pls.’ Admis. P 2. Among the MechWarriors’ adversaries are the Clan Elementals, “men and women bred to be foot soldiers.” FASA CORP., BATTLETECH THE RETURN OF KERENSKY TECHNICAL READOUT: 3050 (1990) at 8.

The EXOSQUAD story line is set in the 22nd Century and involves confrontations between the conquering, genetically engineered, Neosapien race and an enslaved human race living on Earth, Venus and Mars. The Neosapiens and humans battle each other, encased in large robotic fighting machines known as “ExoFrames” or “E-Frames.” Segal Decl. P 5 Playmates markets a toy line – consisting of six toys – featuring characters and vehicles from the EXOSQUAD cartoon series. Pls.’ Facts PP 7, 9.

exosquad

There were complicated issues about licensing agreements and waivers, but in terms of intellectual property and analysis of substantial similarity:

Even the most cursory visual comparison of the EXOSQUAD and BATTLETECH materials reveals that there are marked similarities between the two. In particular, we note that the EXOSQUAD Heavy Attack E-Frame appears to be a virtual replica of the BATTLETECH MAD CAT. Because the court cannot conclude that no reasonable trier of fact could find substantial similarity, Playmates’ motion for summary judgment on this basis must be denied.

mad catassault mech

And so with summary judgment granted in part but denied in part, the case went forward.

Among the findings of fact listed in the 1995 opinion:

Playmates is a distributor of toys supplied by a related company, Playmates Toys (Hong Kong) Ltd. (“Playmates HK”), including TEENAGE MUTANT NINJA TURTLES, * TREK, ADDAMS FAMILY and various Disney characters, and also participates in the development of toys pursuant to an agreement with Playmates HK.

And so again, as we’ve already seen already in many NinjaLaw posts, the Federal Courts mentions TMNT for no particularly necessary reason.

The 1995 opinion concludes:

For all of the reasons set forth herein the Court finds that Playmates’ New Product Form is legally unenforceable under the facts and circumstances of this case. The Court therefore finds that defendant Playmates has not met its burden of establishing its affirmative defense of waiver. The trial will therefore proceed to Phase II on June 20, 1995 at 9:45 a.m.

And so the case continued again. In fact there are seven Federal Court opinions decided between 1994 and 1998 in relation to these parties’ dispute. The first two are those opinions mentioned above. The third was in the same court (US District Court for Northern District of Illinois, Eastern Division) and by the same Judge Ruben Castillo, 912 F. Supp. 1124 decided January 22, 1996.

Judge Castillo concludes (despite what he wrote above) that the two character sets are not substantially similar, and/or independently created, and/or there are “Specific, Non-Trivial Design Features Distinguish EXO-SQUAD From BATTLETECH” and the Judge also cites a study introduced to evidence by Playmates:

The study found no probative evidence of any consumer confusion–98.6% of the persons interviewed after seeing display packages of both products, did not confuse the trade dress of EXO-SQUAD with that of BATTLETECH.

Therefore, Castillo writes:

The bottom line in this case is that Playmates made a conscious business decision that it could proceed with the development of its EXO-SQUAD toy line after it had been given access to the BATTLETECH designs without the necessity or cost of obtaining a license from FASA. After extensive and undoubtedly costly litigation this business decision has been found by this Court not to violate FASA’s legal rights. Nevertheless, this Court believes that the facts of this case do not warrant the imposition of any costs upon FASA for seeking to vindicate its legally protectible rights. This case is dismissed with prejudice with both sides to bear their own costs.

Judge Castillo also found the opportunity to again mention the Teenage Mutant Ninja Turtles and in the findings of fact writes:

On May 11, 1992, Sallis called Allen to discuss whether there was a possibility of putting together an animated cartoon show about BATTLETECH because Playmates’ preference was to produce its new robotic action figure toy line with a corresponding television series. (Sallis Tr. 1592-93). Many successful toy lines, such as the Ninja Turtles and Power Rangers have been promoted in this fashion. (Johnson Tr. 2219). Sallis also discussed potential royalties and budgets with Allen.

ninja turtles power rangers

On appeal at the Seventh Circuit, Judge Diane Wood summarized the above three cases:

The underlying dispute between FASA and Playmates dealt with the question whether Playmates had impermissibly copied FASA’s Battletech line of toys, violating both its copyright and trademark rights (among others) in the process. In a thorough opinion issued after a bench trial (and an opinion of exceptional interest for science fiction aficionados), Judge Castillo ruled that, while the original features of FASA’s robots were entitled to copyright protection, and FASA had protectable trade dress rights in its robot designs, Playmates’ Exo-Squad line of toys were not substantially similar to FASA’s toys based on the Battletech universe, the evidence did not show a likelihood of confusion between the two for purposes of the trade dress complaint, and Playmates had not engaged in unfair competition. FASA Corp. v. Playmates Toys, Inc., 912 F. Supp. 1124 (N.D. Ill. 1996) (FASA III). Earlier, he had granted Playmates’ motion for partial summary judgment on FASA’s claims of common law unfair competition, dilution, and tortious interference with prospective business advantage. FASA Corp. v. Playmates Toys, Inc., 869 F. Supp. 1334 (N.D. Ill. 1994) (FASA I), and somewhat later, he had denied Playmates’ affirmative defense of waiver. FASA Corp. v. Playmates Toys, Inc., 892 F. Supp. 1061 (N.D. Ill. 1995) (FASA II).

Judge Wood then continues:

Playmates, which reports to this court that it spent in excess of $ 2.5 million defending itself against FASA’s accusations, argues that the district court’s remarks explaining why he was denying attorneys’ fees reveal a mistake of law on the standard to be applied.

Wood concludes

In its briefs, FASA has made a Herculean effort to parse the judge’s comments, … Rather than attempting further to read between the lines of the judge’s oral remarks, we prefer to send the fee question back to him to rule again on the petition under the applicable legal standards. We emphasize in this connection that Fogerty says that “attorney’s fees are to be awarded to prevailing parties only as a matter of the court’s discretion.” 510 U.S. at 534.

And so vacated and remanded, the case again falls before Judge Castillo, who again decides (with a bit of a benchslap to Playmates attorneys) not to award any attorney’s fees. So concluding April 1, 1998:

The proper exercise of this Court’s discretion herein requires the Court to once again reject an award of fees. It is unfortunate that this litigation was prolonged by this attorneys’ fees dispute. The Court recognizes that it bears great responsibility by not clearly enunciating the specific basis of its prior denial of attorneys’ fees. Perhaps the Court mistakenly sought to avoid writing a fourth opinion in this hotly disputed litigation. Yet, the Court expressly notes that, rather than seek easy clarification from this Court, Playmates’ counsel merely thanked the Court at the conclusion of the February 13, 1996 proceeding and proceeded to the appellate court.

Today, almost two years later, this Court corrects its prior mistake and issues its fourth opinion which, in no uncertain terms, indicates that an evaluation of all the legal and equitable factors at the Court’s disposal pursuant to its post-Fogerty discretion compels this Court to deny Playmates any attorneys’ fees in this matter. Playmates pushed the extreme outer limits of non-liability in this case to reap great economic benefits. Simply put, an award of attorneys’ fees to Playmates would not advance any creative purpose sought to be advanced in the Copyright Act. Now Playmates wants to have its close legal victory as its cake and its attorneys’ fees as its icing. Playmates instead should be satisfied with the economic profits it reaped from its EXO-SQUAD toys and the fact that its vast attorneys’ fees are still currently tax deductible as reasonable corporate business expenses without any clear limitation. This Court cannot and will not give Playmates its cake and icing too because Playmates has simply not convinced this Court that a fee award would equitably advance any creative purpose protected by the Copyright Act.

Meanwhile, if it weren’t already confusing enough, in two other opinions decided in the same district court around the same time, but by different judges, Playmates is a co-plaintiff against FASA, where the other co-plaintiff is Harmony Gold USA Inc., owners of the Macross and RoboTech character licenses. See Harmony Gold U.S.A. v. FASA Corp., 169 F.R.D. 113 (November 6, 1996, Decided) and 40 U.S.P.Q.2D (BNA) 1057 (June 12, 1996, Decided) and eventually settled out of court.

This is a complicated set of similar characters with crossed licensing agreements and arguable but specific differences. Judge Castillo considers it all part of the cost of doing business – the merchandise driven TV cartoon business. The Ninja Turtles serve to explain similar contemporary cartoon-toy businesses. There is no clear reason for the Court to have focused on that particularly comparison.

A Robotech fansite, terrania.us, has a great organized list of all seven Fasa v Playmates cases with link to the full opinions.

In 1994, The Burger King Kids Club teamed up with the Teenage Mutant Ninja Turtles to summarily dismiss a claim by the Curious Kids, an unproduced idea that claimed to be the original version of a multi-ethnic, multi-racial cartoon.

CK COMPANY, Plaintiff, v. BURGER KING CORPORATION and SAATCHI & SAATCHI ADVERTISING, INC., Defendants.
92 Civ. 1488 (CSH)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
1994 U.S. Dist. LEXIS 13934; Copy. L. Rep. (CCH) P27,325
Decided – September 29, 1994

Judge Haight for the Court explains:

In this copyright action, defendants move for summary judgment pursuant to Fed. R. Civ. P. 56 to dismiss plaintiff’s complaint. Plaintiff claims that Burger King’s “Kids Club,” a series of child cartoon characters featured in Burger King commercials and in-store promotional materials, infringes on plaintiff’s unproduced proposal for television commercials and specials featuring its own group of child cartoon characters called the “Curious Kids.” Defendants claim that Burger King’s Kids Club lacks any substantial similarity to the protectable elements of the Curious Kids.

The Court continues:

This case presents the familiar copyright question of substantial similarity in the novel context of two groups of multi-ethnic, multi-racial cartoon children.

WAIT, what? HAHA. It’s 1994. And so “multi-ethnic, multi-racial cartoon children” is a “novel context” HA! Dora the Explorer won’t air for another six years.

Explaining the characters in question:

The characters in the Burger King Kids Club, in contrast [to the plaintiff’s characters, the Curious Kids], are extreme stereotypes. The commercials and promotional materials before the Court portray the Kids Club personalities as one-dimensional cartoons. The tone of defendants’ commercials demonstrates the lightweight, playful nature of the Kids Club. While the Curious Kids deal with significant social issues, the Kids Club deals with issues no more weighty than how children can obtain promotional items such as Teenage Mutant Ninja Turtle badges, plastic toy hamburgers, fries, or shakes at participating Burger King restaurants.

Continuing about the Kids Club:

The visual presentation of the Kids Club commercials demonstrates the fundamental differences in tone and structure between the Kids Club and the Curious Kids. The Kids Club commercials rely on special effects and highly stylized graphics. These commercials show the Kids Club members being magically transported in and out of different places, soaring through the air on a flying cheeseburger, ducking to avoid self-propelled french fries and milk shakes that fly into paper bags, and zapping Teenage Mutant Ninja Turtles with a stun ray.

Continuing to contrast, the Court notes:

while the Curious Kids wear normal, everyday clothes typical for young teens, the Kids Club members each wear highly stylized outfits exaggerating their stereotypical character type. For example, Kid Vid is outfitted with a plethora of remote controls, headphones, portable stereo equipment, and some type of goggles, and Wheels wears a spacesuit. This magical, high-tech style contrasts with the realistic portrayal of the Curious Kids.

Is that why the Court has twice highlighted the TMNT connection? This is not the first time a Federal Court opinion has unnecessarily mentioned a Ninja Turtle promotional item – See previous NinjaLaw posts about TMNT in cola wars and TMNT in ooze products and TMNT in movie distribution. Is it used in these cases to set the social context or just because judges like ninja turtles? In the Kids Clubs case is it used to further the pronouncement of exaggerated stereotypical character types? Is TMNT, in this way, an early example of multi-ethnic, multi-racial cartoon characters? At the very least they seem to be important supporting characters.

Conclusion of the Court:

Defendants have established that any similarities between the Kids Club and the Curious Kids relate only to unprotectable elements, and that no reasonable jury could find the works substantially similar. Defendants are therefore entitled to judgment as a matter of law.

A rehearing of this case was denied and the appellate court affirmed by the Second Circuit (122 F.3d 1055) without issuing an opinion.

I love when Judges decide that no reasonable jury could find a work similar. In this case the proof of copying was weak, the plaintiff’s characters had never been produced and the connection between the plaintiff’s and Burger King’s advertising agency was tenuous. But the Court does not decide there is no copying, rather that there were no protectable elements of intellectual property. The idea of a group of multi-ethnic, multi-racial characters with one in a wheelchair, is not protectable – or else surely one of these parties might own rights to Glee too.

Note the Court also wrote:

given racial and gender stereotypes of leadership it is unfortunately no surprise that the only white, male, non-handicapped, non-“nerd” member of each group assumes the leadership role. See Selmon v. Hasbro Bradley, Inc., 669 F. Supp. at 1272-73 (not unusual that lion-like creature assigned role of “king of the jungle”).

wheels artie arty glee

burger king kids club glee cartoon

glee cartoon kids club

Judge Haight’s opinion in the Kids Club case has been cited six times for the following propositions:

1) “Copyright law will not protect characters where ‘it is virtually impossible to write about a particular fictional theme without employing certain stock or standard literary devices.’ … theme of diverse group of children sharing adventures unprotectible under copyright law” in Robinson v. Viacom 1995 U.S. Dist. LEXIS 9781, Copy. L. Rep. (CCH) P27480 (S.D.N.Y. July 13, 1995)

2) “concepts and ideas may not be copyrighted, and that only a particular expression of an idea may be copyrighted.” Proctor and Gamble v. Colgate-Palmolive and Young and Rubicam, 1998 U.S. Dist. LEXIS 17773 (S.D.N.Y. Nov. 5, 1998), citing Robinson v. Viacom, Id.

3) “shared trait, by itself, is insufficient to establish substantial similarity between the characters.” Hogan v. DC Comics, 48 F. Supp. 2d 298 (S.D.N.Y. 1999) comparing “the main characters in Matchsticks and Dhampire [in] that they share the same name: Nicholas Gaunt”

4) Willis v. HBO, 2001 U.S. Dist. LEXIS 17887, 60 U.S.P.Q.2d (BNA) 1916 (S.D.N.Y. Nov. 5, 2001) comparing characters in Arli$$ and Schmoozers:

‘The essence of infringement lies in taking not a general theme, but its particular expression through similarities of treatment, details, scenes, events and characterization.’ Reyher, 533 F.2d at 91. ‘The law will not grant an author a monopoly over the unparticularized expression of an idea at such a level of abstraction or generality as unduly to inhibit independent creation by others.’ Gund, Inc. v. Smile Int’l, Inc., 691 F. Supp. 642, 644 (S.D.N.Y. 1988), aff’d mem., 872 F.2d 1021 (2d Cir. 1989). Consistent with these principles, copyright law does not protect stock characters, incidents or settings that are as a practical matter indispensable or standard in the treatment of a given topic. Hoehling v. Universal City Studios, Inc., 618 F.2d 972, 979 (2d Cir.), cert. denied, 449 U.S. 841, 66 L. Ed. 2d 49, 101 S. Ct. 121 (1980).

5) “concepts and ideas may not be copyrighted and that only a particular expression of an idea may be copyrighted.” CBS Survivor v. ABC Granada, 2003 U.S. Dist. LEXIS 20258 (S.D.N.Y. Jan. 13, 2003) comparing Big Brother and Survivor to “I’m a Celebrity get me out of here” in regards to elements like island survival and “serial elimination”. The court finds for Celebrity and thus is born an era of vote-off reality TV shows in the style of Big Brother and Survivor – a style not protectable by copyright. NBC and Donald Trump’s “The Apprentice” premiered the following year.

6) And most recently cited regarding children’s book characters in Lewinson v. Henry Holt & Co., LLC, 659 F. Supp. 2d 547 S.D.N.Y. 2009) “[C]opyright law does not protect stock characters . . . standard in the treatment of a given topic.” “[T]he broad theme of a diverse group of children sharing adventures and experiences is by itself unprotectable under the copyright laws.”

NinjaLaw has already posted about three prior mentions of the Teenage Mutant Ninja Turtles in Federal Court opinions but it was in 1994 that for the first time, a Federal Court opinion was actually involving them as intellectual property in dispute.

MIRAGE STUDIOS, a Massachusetts general partnership, Plaintiff, v. WENG C. YONG, MERRY M. YONG, DENNIS C.M. LOW and DOES 1-5 inclusive, dba TAI FUNG TRADING; et al., Defendants.
No. C-93-2684-VRW
UNITED STATES DISTRICT COURT FOR THE NORTHERN DISTRICT OF CALIFORNIA
1994 U.S. Dist. LEXIS 5618

The opinion is by Judge Vaughn R. Walker. You may recall he is also the judge who recently ruled that California’a Proposition 22 was unconstitutional in case Perry v. Schwarzenegger about gay marriage case.

Written April 29, 1994:

On July 15, 1993, Mirage Studios (“Mirage”) filed this action for copyright and trademark infringement against a group of thirty-four retailers, distributors and manufacturers, alleging that each of the named defendants has infringed and threatens to further infringe upon Mirage’s copyrighted and trademarked “Teenage Mutant Ninja Turtles.”

I presume this was mostly for infringing tee-shirts. And as is typical, the copyright holder asked for maximum damages, in this case $10,000 but Judge Walker found no evidence of any such actual damages and ordered only $500 per defendant (34×500 is $17,000). Also the Judge ordered attorney’s fees of “$780 in attorney fees and $40 in service costs per defendant” – that $780 is the attorney’s bill of “5.2 hours (at $150 per hour)”.

The Court also chides the defendants who did not answer the complaints suggesting that they could have more easily settled the case in advance, but I wonder because attorney fees to answer could only have increased costs.

So this is the first time TMNT is actually directly involved in a Federal Court opinion. But recall the previous NinjaLaw posts about the prior tangential mentions the characters:

First mention of TMNT in Federal Courts
Sun Dun v Coca Cola – August 15, 1991

Teenage Mutant Ninja Turtles again – Retromutagen Ooze
Monarch v. Ritam – June 12, 1992

Ninja Turtles and Hollywood’s Horizontal Conspiracy
El Cajon v. AMC – October 23, 1992

Don’t worry, there’s more to come too.

In the 1992 trademark case of Monarch v Ritam, the Federal Court decided the usage of the word “ooze” or “ooz” in the marketing of a novelty toy product goo. The Court decides that ooze is either generic or descriptive and does not qualify for Lanham Act protections. And for the second time, a federal court cites Teenage Mutant Ninja Turtles even though its not really involved in the case.

MONARCH LICENSING, LTD., Plaintiff, -against- RITAM INTERNATIONAL LTD., INC., and BRAVMAN ASSOCIATES, INC., Defendants.
92 Civ. 3108(PNL)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
1992 U.S. Dist. LEXIS 8225; 24 U.S.P.Q.2D (BNA) 1456
June 12, 1992, Decided

The Court explains:

Ooz Ball is either a generic unprotectible mark or a descriptive mark which is unprotectible without secondary meaning.

Ordinarily, distinctiveness is a prerequisite to the establishment of trademark rights. Marks that are generic are never protectible. Marks that are descriptive rather than distinctive are protectible only on a showing of “secondary meaning.” See Abercrombie & Fitch Co. v. Hunting World, Inc., 537 F.2d 4, 9 – 11 (2d Cir. 1976); Restatement (Third) of Unfair Competition §§ 13, 15 (Tent. Draft No. 2 1989) [hereinafter Restatement]

Monarch’s asserted trademark rights attach to the mark “Ooz Ball.” This mark results from the combination of two words: “Ooze” (with the final silent “e” dropped) and “ball.” This mark is used to designate an object which is denoted, or at least described, by those words. The object is delivered in the form of a ball and is intended to be used (at least partially) as a ball (by bouncing it and throwing it). The material of which the ball is composed can properly be called ooze. “Ooze” is a word from Old English which in ancient times referred to the muddy silt characteristically found in the beds of rivers or other bodies of water. From the Old English noun developed the same word as a verb, denoting the action characteristic of such muddy silt; the verb has in [*16] turn influenced the meaning of the noun which has come to include “that which oozes.” See I Compact Edition of the Oxford English Dictionary 1993 (1971). Thus a thick viscous liquid that flows slowly (or oozes) is Ooze.

A strong argument may be made that when this mark is used for this product, it is generic and therefore unprotectible, see Abercrombie & Fitch, 537 F.2d at 9; Restatement § 15; “Ooz Ball” is used in connection with a product that is a ball of ooze, or an ooze ball. As to the dropping of the silent “e,” such HN4Go to this Headnote in the case.spelling changes that do not affect pronunciation ordinarily will not save a generic mark. See, e.g., Leon Finker, Inc. v. Schlussel, 469 F. Supp. 674, 678 (S.D.N.Y.), aff’d, 614 F.2d 1288 (2d Cir. 1979); Restatement, § 14, Comment (a) and § 15, Comment (a); see generally 1 J. Thomas McCarthy, Trademarks and Unfair Competition § 12:12 at 555 – 556 (2d Ed. 1984).

The argument that the mark is generic is strongly supported by the text on the Ooz Ball packaging which, immediately under the trademark Ooz Ball, adds a descriptive line describing the product as a pod of “Intergalactic Ooze.” Also, the instructions on the package advise that if the product dries up, drops of water may be added to restore its “ooz-ability.” The inference is further reinforced by the fact that two other manufacturers of similar products, in addition to Ritam, have used the word ooze as part of the mark and/or description of their product: Dinosaur Ooze and Teenage Mutant Ninja Turtles Retromutagen Ooze.

At the very best, this mark sits at the low end of the “descriptive” category. As a descriptive mark, it is not entitled to protection without having achieved secondary meaning in the marketplace. See Abercrombie & Fitch, 537 F.2d at 10.

Monarch has made a very skimpy, conclusory and inadequate showing of secondary meaning. If the mark escapes the generic unprotectible category and is properly considered descriptive, it is, nonetheless, in all probability unprotectible because of inadequate proof of secondary meaning.

Recall that TMNT was cited before in a NinjaLaw case about soda and the cola wars because they made a “cowabunga cooler” product. While this “ooze” case is a more unusual product, it seems there were a lot of these oozes (and Ghostbusters slime) on the market and I think perhaps judges and law clerks like the “ninja turtles” and love the opportunity to mention it as we will see in many future cases as we continue to into NinjaLaw.

There are 103 case opinions in Federal Courts with the word “ninja” according to a Lexis search. The first is actually a typo (explained below). So the true first is the 1988 decision in Hasbro Indus. v. United States, Court No. 84-1-00087, UNITED STATES COURT OF INTERNATIONAL TRADE, 12 C.I.T. 983; 703 F. Supp. 941, Decided, October 25, 1988

This case involves the import taxes (harmonized tariff) on G.I. Joe action figures and determines that they should be taxed at a higher rate because they are human dolls. This distinction between human and nonhuman figures has recently been reported in a variety of blogs because of a decision regarding X-men merchandise. (See Toy Biz v. US). For similar tax reasons as will be discussed below for Hasbro, Marvel lawyers argued in 2003 that certain X-men figures were nonhuman. This created hullabaloo amongst comic fans because a major plot line of the X-men comic is that these characters are humans who are persecuted for being mutant humans. Arguing that mutants are not human is good for taxes but goes counter to what the X-men fight for.


– Law and Multiverse – “Are the X-Men Human? A Federal Court Says No”
– RadioLab – “X-men vs Tariff Law”
– The Cardozo Jurist – “Courts Rules Marvel Action Figures Are Not Dolls”
– Escapist – “Federal Court Rules that the X-Men are Not Human”

But first the typo – In Office of Supply Govt. of the Republic of Korea v. M. V. Naftoporos, No. 81 Civ. 4507, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, 1985 U.S. Dist. LEXIS 15671, September 24, 1985, Decided – the Court cites a quotation to “M. Golodetz Export Corp. v. S/S Lake Ninja, 751 F.2d 1103, 1110 (2d Cir. 1985)” — except that is scrivener’s error – the correct party name of the defendant in that case was “S/S Lake Anja” = the name of a cargo vessel. So that is the first use of “ninja” in the Federal Court but it’s a typo. That said, even if it is complete error, it is somewhat ironic or coincidental that the first case with “ninja” has “the Republic of Korea” as the named plaintiff.

So, now back to the GI Joes case, Hasbro v US, Judge Watson for the Court writes:

This action involves the proper classification of plastic figures described as “G.I. Joe Action Figures” and imported from Hong Kong during 1982 and 1983. The merchandise was classified as “other dolls” under Item 737.24 of the Tariff Schedules of the United States (“TSUS”), at various duty rates, depending upon the date of entry. Plaintiff claims that the importations are properly classifiable as “toy figures of animate objects” under Item A737.40 of the TSUS, which, having met the requirements for duty free treatment under the Generalized System of Preferences, (“GSP”), should be free of duty pursuant to General Headnote 3(c) of the TSUS.

The Court then goes on to give thoroughly enjoyable descriptions of many action figures, particularly:

The third figure selected for description is designed “Counter Intelligence.” This is a white female with red hair, wearing what appears to be a beige, one-piece bathing suit, together with beige boots and gloves over black tights. Molded on the figure is a knife on the left thigh, what is possibly a small explosive device on the right thigh, a grenade on the left shoulder, a small pistol on the inside of the right forearm, and what appear to be two “throwing stars” (a type of weapon associated with Japanese “ninja“) on the exterior of the left glove. The figure comes with a “XK-1 Power Crossbow” accessory.

GI Joe fans will recognize this as a description of Counter Intelligence, Scarlett O’Hara.


The Court quotes the entirety of the back filecards for each character, as in the image above, quoting:

“Scarlett is confident and resilient * * * it’s remarkable that a person so deadly can still retain a sense of humor.”

The Court profiles the action figures and characters of Duke, Roadblock, Doc, Scarlett, Cobra Commander, and Baroness.

Hasbro’s arguments are GI Joe are “action figures” not “dolls” but the Court disagrees concluding:

The testimony offered at trial could not overcome the fundamental definition established by lexicographic common meaning and prior case law. Although it is clear that plaintiff does not use the word “doll” in the marketing of these figures, none of the plaintiff’s witnesses could persuade the Court that this was a matter of basic definition. On the contrary, the evidence as a whole supports the conclusion that the emphasis on the term “action figure” is a conscious avoidance of the definitionally correct term “doll” and that when these articles are described in general publications in this society such as newspapers or magazines, or in specialized publications devoted to collectors of dolls, they are frequently referred to as “dolls.”

In sum, the Court is of the opinion that these figures have been properly classified as “dolls” under Item 737.24 of the TSUS. Further, for what it is worth, the Court notes that this classification does not in any way detract from the respect which these figures deserve as representations of the human participants in the never-ending struggle between good and evil. Henceforth, each and every one of these figures must accept the fact that, for tariff purposes and by judicial decision, they must face the world as “real American dolls.” Hopefully, they will meet this decision as to their tariff classification with courage and pride.

It is my suspicion that this tariff classification for action figure toys is a major reason that Michael Bay’s TMNT will change the narrative to make the Teenage Mutant Ninja Turtle be aliens. Aliens are nonhuman and so they should be taxed at the lower rate. Bay has been quoted today by CNN saying in response to fan reaction about the alien-origin plot: “Relax .. We are just building a richer world”.

Yes, Richer because of tax savings.

Ok that’s enough for my first NinjaLaw post. There are more Teenage Mutant Ninja Turtles in other cases and we’ll get to them later – and you may also Shepardize this Hasbro case too, there is a follow-up case about other Joes in 1989 and the 1988 case is also cited in the Toy Biz opinions about X-Men in both 2001 and 2003 . This is just a first post – there will be more NinjaLaw.