July 1, 2014

My Blog's Been Cited as Evidence in a Lawsuit! Sweet!

Thanks to Robert Lewis Webbe (aka Duxburian) for bringing this to my attention!

Earlier this year, I made a lengthy post about upcoming blasters spotted online and in stores. Included in this update was documentation of several Swimways soakers that used the same molds as both current and older Super Soaker and Water Warriors toys.

That post (and thus this blog) was cited by Buzz Bee Toys in a bid for a preliminary injunction against Swimways and Target, it turns out! A copy of the judge's opinion in Buzz Bee Toys Inc. v. Swimways Corporation can be found here.

To quote page 12 of the opinion:

As evidence of the similarity between Buzz Bee’s and Swimways’ products, Plaintiff provided a February 12, 2014 post from the “BUFFDADDY NERF” blog, in which the blogger “ma[de] a large post covering air and water blasters . . . .” (Id. Ex. Z at 1.) The blogger provided pictures of Swimways products he had recently seen at Target and said that Swimways’ AVALANCE was “[a] close copy of the Water Warriors Xenon,” Swimways’ TSUNAMI was “[a] copy of the Water Warriors Argon,” Swimways’ STRYKER units were “[r]eshells of one of the original Water Warriors Kwik Grips XL,” and “there was also a piston blaster virtually identical to the Water Warriors Avenger.” (Id. at 3-4.) The blogger noted that Swimways’ toys “appear to use old blaster molds. However, they appear to have either pinch triggers, or some sort of alternative valve mechanism . . . .”

My favorite passage from the opinion:

As discussed supra, the products look very similar and, particularly when considering the similarity between each offering in the WATER WARRIORS and FLOOD FORCE product lines, this factor strongly weighs in Plaintiff’s favor. Defendant notes that the “BUFFDADDY NERF” blogger noted that Swimways’ toys “appear to have either pinch triggers, or some sort of alternative valve mechanism . . . .” (Id. at 3.) The different triggers and valve mechanisms do not diminish the high degree of similarity between Buzz Bee’s WATER WARRIORS and Swimways’ FLOOD FORCE product lines, particularly because the “BUFFDADDY NERF” blogger is likely more sophisticated than the average consumer.

Well, it's good to know I'm smarter than the average bear!

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