Monday, August 9, 2010

Wanted: Wooly Willy aka Frank the False Marker

Walk into any Cracker Barrel Old Country Store and take a step back in time. The walls and ceilings are covered with antiques of all sorts, from kitchen utensils to farm implements. Scattered on the sales floor are displays of vintage reproductions as well as new merchandise for sale. From “Bonanza” DVDs to boxes of Moon Pies, the air is filled with nostalgia. Memories from childhood swirl around you when you see the graphic artwork of toys and games you played with so long ago; items you thought were gone forever, unattainable but for perhaps a few well-worn items on eBay. Now such items are available brand new for just a couple of bucks. You gaze in wonder at how perfectly the packaging of these beloved toys has been reproduced to exactly match the original that you remember so well.

Sadly for Wooly Willy, such exact reproductions of vintage packaging can be fodder for a False Marking suit. Last week, the Docket Report listed a False Marking complaint against the distributors of Wooly Willy, the magnetic drawing set. You remember Willy. He’s encased in a layer of clear plastic, which houses tiny magnetic shavings that can be manipulated with a magnetic stylus to change Willy’s appearance. The possibilities are seemingly endless, as the back of the package sports drawings of “Harry the Hermit”, “Dick the Dude”, and “Pete the Pirate”.

According to Unique Products Solutions, Ltd., however, there’s a darker side to Willy’s “magnetic personality”. It all stems from a problem with Willy’s packaging, which has a patent number on the back, a very old patent. Patent number 2,853,830, issued in 1958 and was titled simply “Magnetic toy”. Wooly Willy has entertained boys and girls ever since. Now that Willy’s deceit has been brought to light, does he need a new persona, like “Frank the False Marker”?

The complaint in question is somewhat boilerplate for False Marking cases, which doesn’t necessarily connect with Willy. Perhaps the most questionable claim is that Willy’s packaging might “deter scientific research”. With scientific research at stake here, what can be done to save Willy from those dreaded False Marking fines?

As with all False Marking cases, the plaintiffs will certainly need to prove that Willy intended to deceive the public by using his 34 year-old patent number on his package, which is no small task. However, there is also another barrier in these types of actions that may prevent qui tam plaintiffs from realizing their dream of protecting the US government. Today's Docket Report summarized two other false marking suits involving toys that were dismissed last week for lack of standing. The question is, will a similar motion in Unique Product Solutions, Limited v. Tara Toy Corp. et al be enough to free Willy?

More about Willy:

“Wooly Willy is a shifty character. His many disguises completely change his appearance.”

Today’s Docket Report:
Docket Report for August 9, 2010

See Docket Navigator’s list of False Marking cases:

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