A local firm said it had a deal to make 1.3 million plastic wishbones for Sears but it was broken, spurring a suit.
Thanksgiving is not until tomorrow, but at least one fight over a wishbone is well under way.
Actually, a million wishbones.
Lucky Break Wishbone, a West Seattle company that makes plastic wishbones, is suing Sears, Roebuck & Co. and its advertising agency, Young & Rubicam, in federal court in Seattle for breach of contract and copyright infringement.
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Ken Ahroni, Lucky Break’s founder, says Young & Rubicam ordered 1.3 million Lucky Break Wishbones in August 2005 for a Sears holiday promotion. But, Ahroni’s lawsuit alleges, Young & Rubicam reneged, then copied Lucky Break’s proprietary wishbone “sculpture” and had its bogus bones made on the cheap offshore.
Spokespeople for Sears and Young & Rubicam were not available for comment, and thus far neither has formally responded to the breach-of-contract allegation. A lawyer for the companies indicated they plan to dispute that a binding contract ever existed.
Last week, a judge left most of Lucky Break’s copyright-infringement claims intact when he failed to grant a motion to dismiss by the defendants.
Why wait for holiday?
Ahroni was born Nov. 25, so Turkey Day and his birthday often coincide. Consequently, Ahroni has long had a soft spot for Thanksgiving and the ritual of breaking a turkey breastbone for good luck.
Still, Ahroni knew his favorite holiday had shortcomings: It comes just once a year; one turkey yields one wishbone, no matter how big the bird; vegetarians can’t take part in the cartilage-cracking ritual.
On Thanksgiving Day 1999, Ahroni had a brainstorm: Why not make cheap, plastic wishbones so anyone could break a wishbone, any day of the year?
His background prepared him to carry out his vision.
After graduating from the University of Washington in 1973, Ahroni worked for his father at the family business: General International Lights, a manufacturer and importer of Christmas lights. When the company folded in the late 1970s, Ahroni went to Taiwan and consulted with makers of holiday lights seeking U.S. distributors.
Over the next 25 years, Ahroni gained expertise in plastics manufacturing and holiday commerce.
Using the desiccated wishbone from his 1999 Thanksgiving as his inspiration, Ahroni developed a 3-D, digital wishbone and churned out prototypes at a factory in Auburn.
By Thanksgiving 2004, Ahroni had Lucky Break Wishbones ready to test-market in 10 Seattle retailers, from the Thriftway near his home in West Seattle to Archie McPhee’s novelty store in Ballard.
The experiment went well and Ahroni marketed his wishbones more aggressively in 2005. He launched a Web site touting Lucky Break’s “revolutionary advance in plastic wishbone technology,” and inked deals with retailers ranging from Party City to Urban Outfitters and Whole Foods.
A “fun pack” of four Lucky Break Wishbones retails for $3.99.
Young & Rubicam called about the Sears promotion in June 2005, with a potential order of up to 2 million wishbones, Ahroni said.
On Aug. 4, 2005, according to Lucky Break’s lawsuit, Young & Rubicam sent an e-mail cementing a deal; a subsequent e-mail on Aug. 5 specified the order would be for up to 1.3 million wishbones dyed blue, to match Sears’ colors.
On Aug. 11, Young & Rubicam allegedly informed Ahroni they were changing course; an “offshore company” would make the wishbones for Sears’ Thanksgiving promotion.
Sears eventually ran a “Wish Big Wishbone” promotion in late November 2005. Shoppers who purchased an item at one of 1,900 Sears stores on Nov. 19 received a plastic wishbone (made in China); if they brought the wishbone back to Sears between Nov. 20 and 23, they received $10 off their next purchase of $100 or more.
The Lucky Break lawsuit claims Young & Rubicam “directed an overseas manufacturer in China to copy the Lucky Break Wishbone sculpture for use in the Sears promotion,” in violation of U.S. copyright laws.
Young & Rubicam and Sears filed a motion to have the copyright claims dismissed. A hearing on the motion was held last week before U.S. District Court Judge Thomas Zilly.
Marc Rachman, a New York-based attorney for the companies, argued Lucky Break’s copyright claim was invalid because the company’s wishbone is a reproduction of an article that occurs in nature and thus not copyrightable.
“Any originality inherent in a replica of a wishbone was invested so by nature, by a supreme being, or by the turkey itself,” the companies wrote in a legal filing. “By any account, however, it was not done by Lucky Break.”
Further, Rachman said, even if Lucky Break’s wishbone is subject to copyright protection, the wishbones Sears gave out were markedly different in size, texture and color.
The copyright claims are particularly sensitive to both sides, because Lucky Break contends they entitle the company to not only its own lost profits — “hundreds of thousands of dollars,” according to Ahroni — but also a share of any profits Sears earned during its wishbone promotion.
How much Sears garnered from the wishbones is in dispute. Rachman said in court that because Sears gave the wishbones away, it made no profits on the promotion.
Lucky Break counters that the wishbone promotion is responsible for some portion of all Sears sales on four of its busiest days of the year.
Zilly left most of Lucky Break’s claims intact. Too many facts were in dispute to grant the motion to dismiss based simply on the filings, the judge ruled.
Zilly ordered the two sides to spend 60 days in mediation.
Mark Walters, an attorney for Lucky Break, is not optimistic a settlement will be reached anytime soon.
“They’re not taking this case seriously as far as I can tell,” Walters said.
Regardless of the outcome, Ahroni said he expects to sell about a million Lucky Break Wishbones this year, about the same as last year, and he is trying to come up with new ways to market his product — as Christmas stocking stuffers, for instance.
“We think we have a very viable product,” Ahroni said. “Our goal is to make this a new family tradition.”
David Bowermaster: 206-464-2724 or email@example.com