Trial of Cabbage Patch Kids vs. Garbage Pail Kids Opens
JOSEPH B. FRAZIER
Jan. 27, 1987
ATLANTA (AP) _ Dead Fred, Up Chuck, Acne Amy and the other Garbage Pail Kids fought for their life Tuesday as the makers of the Cabbage Patch Kids claimed violation of copyright and trademark rights worth millions of dollars.
As the trial got under way with batteries of lawyers surrounded by piles of dolls, toys, packaging and color enlargements, attorney William Needle said he would prove that the makers of the Garbage Pail Kids had caused considerable confusion between the two products.
Needle represents the Georgia company that originated the cherubic soft- sculpture Cabbage Patch Kids dolls, in its suit against Topps Chewing Gum Co. of Brooklyn, N.Y., manufacturer of Garbage Pail Kids cards and stickers.
U.S. District Judge Ernest Tidwell is hearing the case without a jury.
Defense attorney Robert Pennington told the judge he would attack the validity of the Cabbage Patch Kids trademark and contended that the Garbage Pail Kids were ''an artist's rendition of an unprotected idea.''
He claimed that the Cabbage Patch Kids ultimately trace their origin to unprotected dolls made in the late 1970s.
Needle argued that the artist who created the Garbage Pail Kids, John Pound of Eureka, Calif., used the Cabbage Patch Kids as models and exceeded the legal boundaries of parody. He also argued that the artist had no access to the earlier unprotected models.
The makers of the Cabbage Patch Kids seek an order banning further manufacture and distribution of the Garbage Pail line, a recall of goods in retail and other outlets, and damages of three times the profits realized from the venture.
The Garbage Pail Kids, produced by Topps Chewing Gum Co. of Brooklyn, N.Y., has marketed its parade of misfits, mostly on bubble gum cards, since 1985.
The Cabbage Patch Kids were originated by Original Appalachian Artworks Inc. of Cleveland, Ga., and were a sensational success starting in late 1983.
Christmas season rushes to buy the dolls, often at inflated prices, have resulted in injuries in some cities. Today, more than 35 million of the dolls have been sold.
Topps claims its product is in the nature of satire and parody and is a fair use of anything to which the plaintiffs may have property rights. Topps denies any violation of copyright or trademark rights and charges that the plaintiffs have a ''doctrine of unclean hands,'' contending the plaintiffs themselves swiped the original idea from a third party.
Whether it is Fryin' Bryan, who is wincing from the first big jolt of an electric chair, or Adam Bomb, whose head is dissolving into a mushroom-shaped cloud, the Garbage Pail Kids, who number in the hundreds, have a strong facial similarity to the Cabbage Patch Kids.
The manufacturers of the Cabbage Patch Kids claim the Garbage Pail Kids are a direct, intentional and parasitic ripoff that both demean their product and make money on their design and name.
The plaintiffs' attorneys say Topps has sold more than $50 million worth of Garbage Pail products.
The suit further claims Topps was offered the opportunity to market Cabbage Patch Kids before the craze hit, but declined, then tried to get the license when the dolls became popular.
By that time, the license had been awarded to another firm, and the suit suggests revenge may be the motive behind the Garbage Pail Kids line.
In all, more than 120 companies have permits to market Cabbage Patch Kids products, which range from clothes to lunch boxes, notebooks and toys.
About 21 companies have Garbage Pail Kids rights for a similar but less extensive line of products. At least one company makes both.