Survival of the fittest

What should you do when your biggest rival poaches your most creative employee? Why not try suing them for stealing your ideas? It worked for Mattel, says Richard Brass

It’s not often that looking at pornography is used as a defence in any kind of court case, but that was before the recent Barbie v Bratz battle-of-the-dolls case, which not only brought the tough business of IP litigation into the innocent world of children’s playrooms and provided a bonanza to headline writers, but also showed how far companies will go to fight their IP corners.

In case you missed it, the suit was brought by Mattel, maker of the Barbie dolls that have ruled little girls’ bedrooms for nearly half a century, against MGA, manufacturer of the edgier, more urban Bratz dolls that showed up seven years ago and have been ripping market share away from Barbie ever since.

Mattel argued that Bratz designer Carter Bryant came up with his idea while he was working for Mattel under a contract that made all his designs the property of his employer. MGA’s defence was that Bryant thought up Bratz while he was taking an eight-month leave of absence from Mattel in 1998, when he was free to do what he liked with his ideas.

That much was clear enough. The case therefore hinged on finding out when Bryant, who has made more than $30m from his concept, dreamed up Bratz, and that’s where it got entertaining.

‘IT GOES TO THE HEART OF WHEN THE ACT OF CREATION ACTUALLY HAPPENS, OF WHEN A THOUGHT IN SOMEONE’S HEAD BECOMES AN IP-PROTECTED DESIGN’

Bryant himself settled separately with Mattel just before the suit against MGA began, but he still took the stand and said he had the idea in 1998, and if they didn’t believe him, ‘just ask his mom’. His mother duly said she had indeed been shown his Bratz drawings that year. ‘Mothers don’t lie,’ MGA’s lawyer told the court, no doubt sending a flicker of discomfort through some mothers present.

Evidence of creation
Mattel’s lawyer, meanwhile, went beyond motherhood and focused on the materials. He highlighted a notebook in which Bryant had scribbled some details about a 1999 bank account, and which a paper expert testified had also contained some of the first Bratz drawings, which had then been torn out, indicating that the idea came when Bryant was working for Mattel.

Then there was Bryant’s laptop. Two days before the computer was due to be examined for the trial, a software program called Evidence Eliminator – unlikely to go down well with any judge – was used on it, destroying files beyond recovery. Mattel’s lawyer suggested the programme might have been used to destroy documents relevant to the case, which is when MGA’s counsel came up with the original defence that Bryant had used the programme to remove traces of his pornographic pursuits, and was therefore blameless.

The intensity of the case – Mattel even hired a private detective to follow one of its executives whom it suspected of treachery – reflected the fact that the doll war was a life-and-death struggle between the two companies. But it’s also wider than that. It goes to the heart of when the act of creation actually happens, of when a thought in someone’s head or idle doodling becomes a saleable, IP-protected design.

That’s an innately fuzzy point, and both Mattel and MGA broke new ground in trying to find it, in the process sending a message to creative employers and employees to make sure they know where they stand when they’re messing around with ideas. Sadly for MGA, the pornographic defence didn’t wash, and the court finally went with Mattel, ruling that Bryant was working for the company when he had his idea. But then it only awarded $100m in damages, a long way short of the $1bn-plus that Mattel was seeking, allowing both sides to claim victory.

So the doll war rumbles on, but the case wasn’t wasted. At the very least, it sent a clear warning about the perils of imprecision in creative industries.


Richard Brass is a columnist for The Times. He writes on business issues for The Daily Telegraph and was a former editor of Punch.


This article first appeared in IP Review, issue 24