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MATTEL, INC. v. PROCOUNT BUSINESS SERVICES

March 10, 2004.

MATTEL, INC., Plaintiff, -against- PROCOUNT BUSINESS SERVICES, 877NETMALL, INC., and GARY A. GIDDINGS, Defendants


The opinion of the court was delivered by: ROBERT SWEET, Senior District Judge

OPINION

Defendant Gary A. Giddings ("Giddings") has moved to dismiss or transfer the action by plaintiff Mattel, Inc. ("Mattel"). Mattel, in turn, has moved for summary judgment on its claims against defendants Procount Business Services, 877 NetMall, Inc. ("877NetMall") and Giddings (collectively, "Defendants") under the Anticybersquatting Consumer Protection Act of 1999, 15 U.S.C. § 1125(d). For the reasons set forth below, Giddings' motion is denied in part and granted in part, and Defendants' motion is denied. Defendants Procount Business Services and 877NetMall are ordered to seek counsel, and this action will be transferred to the Southern District of Texas.

  Prior Proceedings

  Mattel commenced this action against Defendants on September 16, 2003. The instant motions were marked fully submitted on November 19, 2003.

  The Parties

  Mattel is a corporation organized and existing under the laws of the State of Delaware with its principal place of business in El Segundo, California. Page 2

  Procount Business Services is a sole proprietorship owned by Giddings. It is in the business of selling toys and has its place of business in Houston, Texas.

  877NetMall is a corporation organized and existing under the laws of the State of Texas with its principal place of business in Houston, Texas. 877NetMall is owned by Giddings.*fn1

  Giddings is an individual residing in Houston, Texas.

  Facts

  The facts are set forth based upon the parties' pleadings and supporting declarations.

  Mattel is the world's largest manufacturer of toys, games, and playthings. In 1959, Mattel co-founder, Ruth Handler, created the Barbie doll. Mattel has caused certain trademarks to be registered in the United States Patent and Trademark Office on the Principal Register.

  MetalToys.com is an Internet only specialty toy store.*fn2 Page 3 It features vintage toy reproductions primarily constructed of metal, but in June 2002, the product line was expanded to include all types of toys, including 10 licensed "Barbie Classic" items. On June 20, 2002, Giddings purchased the virtual domain,*fn3 BarbieToy.com, and pointed it to www.metaltoys.com/Barbie.htm. In May 2003, Giddings added 13 Mattel licensed "Barbie Retro" items, purchased the virtual domain, BarbieRetro.com, and pointed it to http://www.metaltoys.com/BarbieRetro.htm. Procount Business Services owns the domain name, MetalToys.com and the virtual domains, BarbieToy.com and BarbieRetro.com. Mattel makes money when its licensed products are sold through MetalToys.com.

  From the MetalToys.com site, Mattel's investigator, Michael Falson ("Falson"), purchased a Barbie Tea Set and a Barbie Magic Paper Doll, which Defendants shipped into the Southern District of New York.

  Mattel seeks a transfer of the domain names, an injunction, statutory damages, and attorneys' fees. Page 4

  I. Defendants Procount Business Services and 877NetMall Need to Seek Counsel

  Defendants Procount Business Services and 877NetMall must seek counsel to represent them in this action. "[I]t is well established that neither corporations nor partnerships may appear in federal courts except by duly licensed attorneys." Kruman v. Christie's Int'l PLC, No. 00 Civ. 6322, 2003 WL 21277116, at *1 (S.D.N.Y. June 2, 2003); see also Rowland v. California Men's Colony, 506 U.S. 194, 201-02 (1993) (explaining that " [i]t has been the law for the better part of two centuries . . . that a corporation may appear in the federal courts only through licensed counsel," and 28 U.S.C. § 1654 "does not allow corporations, partnerships, or associations to appear in federal court otherwise than through a licensed attorney"); ...


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