An attorney for rapper Clifford “T.I.” Harris and his wife, singer-songwriter Tameka “Tiny” Harris, argued to jurors Friday that toy giant MGA Entertainment Inc. lifted the likenesses of their popular girl group for the hit OMG LOL Surprise doll line, but the toymaker’s attorney countered the group was relatively obscure and have failed to prove a trademark infringement.
Attorney John Keville showed jurors multiple photos of the OMG Girlz group members and compared them to various dolls at issue in the federal trial in Santa Ana. He accused MGA’s attorneys of using a strategy of “deny, distract and demean.”
Keville pointed out how some dolls had pink and black hair, just like one of the group’s members. Another member of the group had green and black hair, just like one of the dolls, Keville said.
When the Harris’ attorneys sent a letter to MGA raising issues with trade dress violations, the toy giant sued them, Keville said.
“If they had the reaction there was no similarity then why file a lawsuit?” Keville said. “This goes to their credibility factor.”
MGA executives “thought (the Harris couple) were small and they could tread on us,” Keville said.
And even after the issues were raised about similarities about the dolls with the group’s members, MGA continued rolling out dolls that looked like the OMG Girlz, Keville argued.
“This is you tried to send us a letter and we sued you and you can’t do anything.” Keville said.
At issue is how many consumers associated the girl group with the dolls. Four customers testified in the trial that they thought the dolls were based on the group.
Keville argued that the group’s members were pioneering trendsetters with their dyed hair and outfits.
Keville pointed out that a search of Wal-Mart’s website for OMG Girlz yielded results of the dolls and CDs for the girl group.
He also pointed out that jurors were admonished to discount some testimony from an expert who surveyed consumers about the dolls, which MGA said showed no one thought the dolls had anything to do with the girl group. The reason was because the expert failed to timely turn over information to the Harris’ attorney about the demographics of those surveyed.
“His survey was tailored to get a zero result,” Keville argued.
He discounted MGA’s evidence related to the Bratz doll line, which were similarly marketed as edgy and multi-ethnic and pre-dated the girl group.
“This whole thing about the Bratz is a distraction,” Keville said.
MGA founder Isaac Larian boasted in a 2019 news release that the OMG Lol Surprise doll line was unique and that there was nothing like it, Keville said.
Keville said it was “demeaning” of MGA’s attorneys to undervalue the group’s success and influence. He showed jurors clips of the group performing to excited fans.
The OMG Girlz have videos on YouTube with 16 million to 17 million views, he said.
The couple is seeking at least $98 million in damages.
Attorney Jennifer Keller, who represents MGA, argued that the couple’s litigation “is a shakedown.”
Keller argued that “MGA has created original, stylish dolls for decades,” and accused the defense team for Harris and his wife of engaging in “Herculean efforts… to keep the Bratz dolls from coming into evidence.”
The Bratz dolls were released in 2001 and were continued to be sold through 2010 before a pause and then going back on the market again, Keller said.
“MGA has a history of issuing fun, edgy dolls,” Keller said.
She held up one of the dolls for jurors and noted the size of their eyes, compared with the Bratz line, which looked more “humanoid.”
Holding up a LOL Surprise doll, Keller said, “Look at these eyes — they’re like little saucers.”
Keller argued that the dolls in dispute were a little less popular in sales than the others in the line. So the Harris family cannot claim the company received a “big benefit” even if their designers were inspired by the girl group.
The Harris family has to prove that the girl group was so well-known and popular most consumers would associate them with the dolls, Keller argued. But the group never got that famous, Keller argued.
The group broke up in 2015 but tried to give it another try as just OMG before quitting again and surfacing only for an amateur talent show at the Apollo on New Year’s Eve in 2017, Keller said.
“They had some little measure of fame,” Keller said.
But she said that’s not so uncommon these days, she added.
“That’s why we have influencers no one has ever heard of, but they have 10 million followers,” Keller said. “Our consumers nationwide do not know who the OMG Girlz are.”
Keller brushed off the issue with the survey, saying the company did not seek any specific demographics when monitoring why the dolls were popular.
Keller said the 1st Amendment protects creators from being sued because of similarities and that more has to be shown for a trademark infringement.
“Otherwise, people would not be able to create anything,” she said. “Creativity would grind to a halt.”
Keller also argued that the Harris family “abandoned” their trademark rights to the OMG Girlz and to their likenesses. First, they did that when the group broke up, Keller said. Then they let the trademark to the group’s name expire in 2018, but they tried to revive it a couple of years later around the time they sent MGA a cease-and-desist letter, Keller argued.
“Why are we here? We’re here over money,” Keller said. “And you shouldn’t give it to them. They had no role in creating these dolls.”