Douglas v. Mattel, Inc.

Filing 1

COMPLAINT against Mattel, Inc.( Filing fee $ 350 receipt number 053N-676571.), filed by Donna Douglas.(Shaheen, Philip) Modified on 5/5/2011 to edit text (PAH). (Additional attachment(s) added on 5/5/2011: # 1 Civil Cover Sheet, # 2 Exhibit A, # 3 Exhibit B-P1, # 4 Exhibit B-P2) (JDL).

UNITED STATED DISTRICT COURT
MIDDLE DISTRICT OF LOUISIANA

DONNA DOUGLAS,
Plaintiff
v.

Civil Action No.
COMPLAINT
JURY TRIAL DEMANDED

MATTEL, INC.
Defendant

Plaintiff, Donna Douglas, for her complaint against Defendant, Mattel, Inc. (“Mattel”),
alleges as follows:
NATURE OF THE CASE
1.

Plaintiff, Donna Douglas, is the actress who played Elly May Clampett in all 274
episodes of the iconic television series The Beverly Hillbillies. Mattel has recently
introduced an “Elly May” Barbie doll, and is engaging in the unauthorized use of Ms.
Douglas’s name, likeness and image, as well as the distinctive attributes of her
portrayal of the Elly May character, to promote and sell the “Elly May” Barbie.
Mattell’s unauthorized conduct constitutes false endorsement under the federal
Lanham Act, violations of Plaintiff’s Louisiana right of publicity, and
misappropriation and unjust enrichment under Louisiana law.

PARTIES
2.

Plaintiff, Donna Douglas, resides in Zachary, Louisiana.

3.

Defendant, Mattel, Inc., is a Delaware corporation with its principal place of business
at 333 Continental Boulevard, El Segundo, California.
JURISDICTION AND VENUE

4.

This Court has original subject matter jurisdiction over the false endorsement claim in
this action pursuant to 15 U.S.C. § 1121 and 28 U.S.C. §§ 1331 and 1338, because
the complaint states claims for violation of the federal Lanham Act. The Court has
jurisdiction over the related State right of publicity, misappropriation and unjust
enrichment claims pursuant 28 U.S.C. § 1367.

The Court also has diversity

jurisdiction over Plaintiff’s State law claims pursuant to 28 U.S.C. § 1332.
5.

Venue is proper within this district pursuant to 28 U.S.C. § 1391 because Ms.
Douglas resides here.
FACTS

6.

Ms. Douglas is the actor who played Elly May Clampett in all 274 episodes of The
Beverly Hillbillies. The show, which was broadcast for nine seasons on CBS from
1962 through 1971, ranked among the most watched on television during its initial
run, and has been broadcast in syndication around the world ever since.

7.

Ms. Douglas is recognized throughout the world for her portrayal of Elly May
Clampett, and continues to make public appearances in association with the role 40
years after the show’s final season.

8.

In approximately December, 2010, Defendant, Mattel, introduced and began to
promote an “Elly May” Barbie doll designed to resemble the Elly May Clampett
character as portrayed by Ms. Douglas. The packaging for the “Elly May” doll
features a photo of Ms. Douglas portraying the character. (A photo of the “Elly May”
Barbie is attached hereto as Exhibit A). In promotional materials, Mattel describes
the doll’s association with Ms. Douglas’s portrayal of Elly May Clampett: “[T]he
Elly May Barbie doll portrayed by Donna Douglas in the TV show captures the
essence of the classic 60’s TV character and show, The Beverly Hillbillies.” (A copy
of a promotional description of the doll from Amazon.com is attached hereto as
Exhibit B).

9.

Despite the fact the doll is designed to resemble Elly May as portrayed by Ms.
Douglas and marketed to capitalize on the close association in the public mind
between Ms. Douglas and the Elly May character, Ms. Douglas never endorsed the
doll and never gave Mattel her permission to use her name, image, or likeness in
association with the promotion of the doll.
FIRST CAUSE OF ACTION
(Lanham Act False Endorsement)

10.

Plaintiff repeats and realleges the allegations set forth in Paragraphs 1 through 9 as if
fully set forth herein.

11.

Mattel’s unauthorized use of Ms. Douglas’s name, image, likeness, and distinctive
attributes in the portrayal of the Elly May character creates the false public

impression that Ms. Douglas has endorsed the “Elly May” Barbie or otherwise
approved the use of her name, image, likeness and attributes in association with the
marketing of the product.
12.

Mattel’s unauthorized use of Ms. Douglas’s name, likeness, image and attributes
constitutes false endorsement in violation of Section 43(a) of the Lanham Act, 15
U.S.C. § 1125(a).

13.

Through Mattel’s violation of Section 43(a) of the Lanham Act, Ms. Douglas has
been damaged in an amount t be determined at trial, but presently estimated to be not
less than $75,000.00.
SECTION CAUSE OF ACTION
(Louisiana Right of Publicity)

14.

Plaintiff repeats and realleges the allegations set forth in Paragraphs 1 through 13 as if
fully set forth herein.

15.

By its unauthorized commercial use of Ms. Douglas’s name, photograph and
distinctive attributes in the portrayal of the Elly May character, Mattel has violated
Ms. Douglas’s Louisiana right of publicity.

16.

Through Mattel’s violation of Ms. Douglas’s right of publicity, Ms. Douglas has been
damaged in an amount to be determined at trial, but presently estimated to be not less
than $75,000.00.

THIRD CAUSE OF ACTION
(Louisiana Misappropriation)
17.

Plaintiff repeats and realleges the allegations set forth in Paragraphs 1 through 16 as if
fully set forth herein.

18.

By its unauthorized commercial use of Ms. Douglas’s name, likeness, image and
distinctive attributes in the portrayal of the Elly May character, Mattel has
misappropriated Ms. Douglas’s identity for its commercial advantage of promoting
and selling the “Elly May” Barbie.

19.

Through Mattel’s misappropriation of Ms. Douglas’s identity, Ms. Douglas has been
damaged in an amount to be determined at trial, but presently estimated to be not less
than $75,000.00.
FOURTH CAUSE OF ACTION
(Louisiana Unjust Enrichment)

20.

Plaintiff repeats and realleges the allegations set forth in Paragraphs 1 through 19 as if
fully set forth herein.

21.

By its unauthorized commercial use of Ms. Douglas’s name, likeness, image and
distinctive attributes in the portrayal of the Elly May character, Mattel has been
enriched at the direct expense of Ms. Douglas, without any justification for its
conduct.

22.

By its conduct, Matell has been unjustly enriched in an amount to be determined at
trial, but presently estimated to be not less than $75,000.00.

WHEREFORE, Plaintiff, Donna Douglas, seeks an order of this Court:

1) Preliminary and permanently enjoining Mattel from the use of Plaintiff’s name,
likeness, image and distinctive attributes in the portrayal of the Elly May
character.
2) Awarding Plaintiff damages in an amount to be determined at trial.
3) Awarding Plaintiff her reasonable attorneys’ fees and costs incurred in
prosecuting this action.
4) Awarding Plaintiff such other relief as to the Court appears just and proper.

A JURY TRIAL IS DEMANDED ON ALL ISSUES SO TRIABLE

Dated: Baton Rouge, Louisiana
May 5, 2011
Respectfully Submitted:
s/Philip J. Shaheen
Philip J. Shaheen, Esq.
Bar Roll No. 11580
SHAHEEN AT LAW, INC.
8966 Interline Avenue, Suite E
Baton Rouge, Louisiana 70809-1963
Tel: [phone]
Fax: [phone]
Charles von Simson, Esq.
(Not admitted in the Middle District of
Louisiana)
von Simson & Chin LLP
62 Williams Street – Sixth Floor
New York, NY 10005
Telephone:
[phone]

CERTIFICATE OF SERVICE
I HEREBY CERTIFY that on May 4, 2011, a copy of the foregoing Complaint was filed
electronically with the Clerk of Court using the CM/ECF system. Notice of this filing will be
sent to Mattel, Inc. by operation of the Court’s electronic filing system.
s/Philip J. Shaheen
Philip J. Shaheen, Esq.
Bar Roll No. 11580
Attorney for Plaintiff, Donna Douglas
SHAHEEN AT LAW, INC.
8966 Interline Avenue, Suite E
Baton Rouge, Louisiana 70809-1963
Tel: [phone]
Fax: [phone]
[e-mail]