{:23Wr%H\U€6X‘
`
`BULKY DOCUMENTS
`
`(Exc
`
`eed
`
`s 300
`
`a es
`p g
`
`)
`
`.
`
`%
`
`
`
`
`
`\
`
`X
`
`V Proceeding/Serial No:
`
`Filed:
`
`Title:
`
`E5
`
`% Part
`
`W7@@%\w‘5““““*
`
`

`
` 3
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`.............................
`
`RITA ABRAHAM and
`
`JESCO IMPORTS, INC.,
`
`Opposers,
`
`-against-
`
`I
`
`2
`
`Opposition‘ No. 115853
`
`DAVID O’NEILI..,
`
`:
`Applicant.
`_____________________________________________________________-_x
`
`APPLICANT’S RESPONSE TO OPPOSERS’ FIRST REQUEST
`FOR PRODUCTION OF DOCUMENTS
`
`COMES NOW Applicant, David O’Neill, by and through his attorney of record, Thomas Y.
`
`Auner, and makes the following responses to Opposers’ First Request for Production of Documents.
`
`1.
`
`All documents identified or requested to be identified in Opposers’ First Set of
`
`Interrogatories to Applicant.
`
`RESPONSE: See documents attached to interrogatory answers.
`
`2.
`
`All documents concerning Applicant’s selection and adoption of Applicant’s mark
`
`or any other mark containing KEWPIE® or any variation thereof.
`
`'
`
`RESPONSE: See attached.
`
`EXHIBIT
`
`

`
`
`
`5‘
`
`3.
`
`All documents describing each product or service Applicant has offered, now offers,
`
`or intends to offer under Applicant’s mark or any other mark containing KEWPIE® or any variation
`
`thereof.
`
`RESPONSE: See attached.
`
`4.
`
`All documents concerning investigations of the availability for use of Applicant‘s
`
`mark that Applicant has ever had conducted and the persons responsible for preparing the results of
`
`the investigation and for conducting the investigation.
`
`RESPONSE: See documents attached in response to Request No 2.
`
`5.
`
`All documents concerning any investigation ofconsumer understanding, recognition,
`
`or perception of Applicant’s mark that Applicant has conducted.
`
`RESPONSE: None.
`
`6.
`
`All documents concerning when and where Applicant first became aware of any of
`
`Opposers’ marks and Opposers’ use of those marks.
`
`RESPONSE: See attached.
`
`7.
`
`All documents concerning when Applicant first used or intends to use Applicant’s
`
`mark or any mark containing KEWPIE® or a variation thereof in commerce for each product or
`
`service on which Applicant intends to use Applicant’s mark.
`
`RESPONSE: See attached.
`
`

`
`F
`
`8.
`
`All documents concerning the classes or types of purchasers to whom Applicant
`
`markets or intends to market products or services under Applicant’s mark or any mark containing
`
`KEWPIE® or a variation thereof.
`
`RESPONSE: None.
`
`9.
`
`All documents concerning the geographical areas in which Applicant markets or
`
`intends to market products or services under Applicant’s mark or any mark containing KEWPIE®
`
`or a variation thereof.
`
`RESPONSE: See documents attached in response to Request No. 7.
`
`10.
`
`All documents concerning the channels or trade through which Applicant markets or
`
`intends to market products or services under the Applicant’s mark or any mark containing
`
`KEWPIE® or a variation thereof.
`
`RESPONSE: See response to Request No. 9.
`
`11.
`
`A11 document concerning all entities with whom Applicant has entered into
`
`agreements regarding the provision or goods or services under Applicant’s mark or any mark
`
`containing KEWPIE® or a variation thereof.
`
`RESPONSE: See attached.
`
`

`
`
`
`12.
`
`All documents concerning any written communication with, or statements from, any
`
`witness from whom Applicant intends to introduce testimony during its testimony period in this
`
`proceeding.
`
`RESPONSE: See attached and see Skahill correspondence produced in response to Request
`
`No. 13.
`
`13.
`
`All documents concerning any contact, correspondence, communication, negotiation.
`
`or otherwise with Opposers with regard to the mark KEWPIE including any that occurred prior to
`
`the Notice of Opposition.
`
`RESPONSE: See attached.
`
`14«.”j’\§;ith reference to the portion of Paragraph No. 3 of Applicant’s Answer to Notice of
`
`Opposition, Affirmative Defenses, produce all documents concerning Applicant’s contention that
`
`“Opposers claimed rights in the [KEWPIE] mark do not exist, or to the extent such rights purpon
`
`to exist,
`
`they were obtained by Opposers or
`
`those through whom the claim by fraud,
`
`misappropriation, mistake or other inequitable conduct.”
`
`RESPONSE: See attached. See also documents responsive to Request No. 2.
`
`15.
`
`With reference to the portion of Paragraph No. 2 of Applicant’s Answer to Notice of
`
`Opposition, Counterclaim for Cancellation, produce all documents concerning Applicant’s
`
`contention that “Rose O’Neill and Joseph Kal1us...were involved in certain business relationships
`
`relating to te promotion and sale of [KEWPIE] goods created by Rose O’Neill.
`
`-4-
`
`

`
`
`
`RESPONSE: See attached.
`
`16. With reference to the portion of Paragraph No. 3 of Applicant‘s Answer to Notice of
`
`Opposition, Counterclaim for Cancellation, produce all documents concerning Applicant‘s
`
`contention that “Rose O’Neill did not assign her rights in [KEWPIE] to Joseph Kallus or anyone else
`
`through whom Opposers may claim rights in the mark, as evidence by the royalties that Joseph
`
`Kallus, or entities controlled by him, paid to the heirs of Rose O’Neill.
`
`RESPONSE: See attached.
`
`17.
`
`With reference to the portion of Paragraph No. 4 of Applicant's Answer to Notice of
`
`Opposition, Counterclaim for Cancellation, produce all documents concerning Applicant’s
`
`contention that “Joseph Kallus, or entities controlled by him, and his successors have used the
`
`[KEWPIE®] mark, and such use and goodwill derived from such use, inures to the benefit of the
`
`Applicant.”
`
`RESPONSE: See documents responsive to Requests No. 14, 15, 16, & 17.
`
`18.
`
`With reference to the portion of Paragraph No. 5 of Applicant’s Answer to Notice of
`
`Opposition, Counterclaim for Cancellation, produce all documents concerning Applicant’s
`
`contention that “Opposers, and those through whom they claim, have fraudulently represented
`
`ownership rights in the [KEWPIE®] mark.
`
`RESPONSE: See documents responsive to Requests No. 14 through 17.
`
`

`
`
`
`19.
`
`With reference to the portion of Paragraph No. 7 of Applicant’s Answer to Notice
`
`of Opposition, Counterclaim for Cancellation, produce all documents concerning Applicant’s
`
`contention that “[t]he term [KEWPIE], when used in association with goods depicting Rose
`
`O’Nei1l’s artwork, and in particular, dolls, figurines, and pictures, has long been the generic name
`
`which the public associates with such goods.”
`
`RESPONSE: See documents responsive to Request No. 14.
`
`20.
`
`All documents concerning Applicant’s knowledge ofOpposers’ conduct in marketing
`
`products in connection with the KEWPIE® mark, or licensing others to do so.
`
`RESPONSE: See documents responsive to Request No. 13.
`
`21.
`
`All documents not already produced in response to these requests upon which
`
`Applicant intends to rely in this Opposition proceeding.
`
`RESPONSE: Applicant objects to this Request, as these documents are work product.
`
`

`
`2
`
`_
`THOMAS Y. AUNER,
`ATTORNEY AND COUNSELOR
`
`Dated: May/'2‘, 2003
`
`By:
`
`
`
`Thomas Y. Auner
`
`Missouri Bar No. 34273
`
`3432 Culpepper Court, Suite B
`P. O. Box 10764
`
`Springfield, MO 65808-0764
`Telephone: (417) 841-2777
`Facsimile: (417)890-1778
`ATTORNEY FOR APPLICANT,
`DAVID O’NEILL
`
`PROOF OF SERVICE
`
`I hereby certify that the foregoing AppIicant’s Response to Opposers’ First Request for
`Production of Documents is being sent by
`on this [4#"‘day of May.
`2003, to:
`fig
`
`ELL g/4.4.34/>’
`
`4
`Robert W. Dickerson
`JONES, DAY, REAVIS & POGUE
`
`555 West Fifth Street, Suite 4600
`
`Los Angeles, CA 90013-1025
`ATTORNEYS FOR OPPOSERS
`
` Thomas Y. Auner
`
`

`
`@4011
`
`Janet @_'7\é1'[[5zz[6'12aIz
`
`KEWPIE
`Is:-4.
`
`A Schiffer Book for Colléétbrs With Price Guide
`
`

`
`About the Authors
`
`David O’Neill and Janet O’Neill Sullivan are the great nephew and
`
`niece of Rose O’Neill, creator of the Kewpie doll. Their grandfather, John
`
`Hugh O’Neill, was Rose O’Neill’s older brother. David and Janet share a
`
`love for Rose’s wonderful artwork and creations, the most famous being
`
`her Kewpie dolls. David was named Personal Representative of the Rose
`
`O’Neill estate in 1989.
`
`Kewpies have always been a part of David and Janet’s life. As young
`
`children, they spent time at Bonniebrook, Rose’s home near Branson,
`
`Missouri, playing with the myriad of toys stored in the window seat and
`
`swinging in hammocks on the second and third story balconies. Rose
`
`herself gave David his first Kewpie for Easter 1940 and it is the corner-
`
`stone of his collection. Having loved and collected Kewpies all their lives,
`
`David and Janet wanted to share their knowledge of these wonderful
`
`collectibles with other Kewpie fanciers.
`
`

`
`

`
`

`
`

`
`

`
`
`
`a career of illustrating stories in pen
`and ink. By age seventeen, she was
`
`illustrating “Arabian Nights” for a
`
`Denver Magazine, The Great Divide. By
`age nineteen, Rose had written a novel,
`
`Callista, with sixty-three illustrations.
`
`She took it and other drawings and
`
`headed for New York, stopping in
`Chicago to visit the 1893 World’s Fair,
`
`where she saw her first modern paint-
`ings and sculptures.
`
`drawings for a smart Chicago publica-
`tion, Art in Dress.
`
`Advised by a publisher to wait until
`
`In 1896, Rose married Gray Lathan
`
`she was older to write (though he did
`
`and began signing her drawings,
`
`encourage her to continue drawing),
`
`Rose lodged at the Convent of the
`Sisters of St. Regis in New York City
`where she studied .
`.
`. and began
`creating illustrations for Truth, Collier’:
`
`O’Neill Lathan. Gray had no idea of
`“mine and thine” in the matter of
`
`money, however. He would go to offices
`
`and collect before Rose could get the
`drawings done, and leave her penniless.
`
`Weekly, Harper’s Monthly, Weekly, Puck,
`
`New Ybrk Life, Brooklyn Life, and
`
`‘
`
`Rose subsequently retreated to her
`beloved Bonniebrook, the O’Neill
`
`Bazaar. Two nuns would accompany
`Rose on visits to editors. She made
`
`family home in the hills near Branson,
`Missouri, and obtained a divorce.
`
`Rose relaxing at Bonniebrook.
`
`Introduction
`
`
`Rose Cecil O’Neil1, the second
`
`‘ child of William Patrick and Asenath
`Cecelia, was born in Wilkes-Barre,‘
`
`Pennsylvania, on June 24, 1874. The
`
`family moved to Battle Creek, Ne-
`
`braska, in 1876. At age fourteen, Rose
`won an art contest for a drawing by a
`
`Nebraska school child sponsored by the
`Omaha World Herald. This started her in
`
`‘ V Rose Cecil O’Neill
`
`

`
`
`
`At Bonniebrook, Rose began
`
`a children’s book written and illustrated
`
`launched the factories. Prior to World.
`
`receiving charming unsigned letters. By
`and by one of the letters was signed
`Harry Leon Wilson. The letters contin-
`ued for months. Then Rose and her
`
`sister Callista returned to New York and
`
`her courtship by Harry began in
`
`earnest. In 1902, Rose and Harry were
`
`married in Iersey City, New Jersey, but
`
`there were difficulties in their rapport.
`Harry’s moods reduced Rose to absolute
`
`silence. Again, Rose retreated to
`
`Bonniebrook. When she expressed no
`desire to return to New York, her
`
`mother suggested she didn’t need to go
`
`back. Rose and Harry were divorced in
`1908.
`
`In 1909, Rose createdthe Kewpie
`
`doll, a roly-poly elf with a fat child’s
`
`body, small wings, and a turnip-top
`
`head. These cupids had appeared in
`head and tail pieces when Rose illus-
`
`trated love stories in books and maga-
`zines. Edward Bok of the Ladies Home
`
`_7ournal cut out a number of these and
`
`sent them to Rose, asking if she could
`make a series of illustrations of the little
`creatures. He told her he would find
`
`someone to make accompanying verses,
`
`but Rose wasn’t about to allow anyone
`else to supply the dialogue for the
`series. Thus the Kewpie, a benevolent
`
`by Rose, was published.
`Children began yearning for a
`Kewpie doll they could hold. Rose was
`
`War I,'Kewpies were made of bisque in
`German factories. Due to the shipping
`
`embargo during the war, they were later
`
`in Paris, where she was attending art
`
`made of bisque, wood pulp or composi-
`
`school, making two pages of Kewpie
`adventures every month, illustrating
`stories for other magazines, as well as
`drawing “monsters” for her own
`personal satisfaction. She had not
`
`forgotten she was to model a Kewpie to
`be molded into a doll. She had made a
`
`beginning but as she had propped the
`
`figure only with a paintbrush, it had
`fallen over under the impact of her little
`Breton maid. As Rose was disinclined
`
`to start the formless mass again, she
`
`tion, chalk, and celluloid in the United
`States.
`
`1911 saw publication of The
`
`Kewpies Their Book, a children’s book by
`
`Rose.,In 1913, Rose obtained the first
`patent in the United States for a three
`dimensional Kewpie Doll. The Kewpie
`Kutouts book by Rose was published in
`
`1914, and The Kewpie Primer, a reading
`
`book for children illustrated by Rose, V
`was published in 1916. During the
`1920s, Kewpies appeared in Good
`
`asked a young sculpture student to help.
`Rose had already made some well
`
`Housekeeping, The Delineator, and Ladies
`Home _7ournal.
`
`rounded-out drawings of a standing
`Kewpie, showing the proper size and
`three views: front, side and back. The
`
`Rose’s next doll, Scootles, the Baby
`
`Tourist who visited Kewpieville in her
`Kewpie stories, was created in 1923.
`
`student came and “set up” the statue,
`
`This doll was sculpted as a realibaby.
`
`but by the end of the day it looked as if
`
`there would be nothing Kewpish from
`
`the student’s efforts. She had set up a
`solid first statue of a human child. Since
`
`the student was unable to sculpt a
`Kewpie to Rose’s standards, Rose had to
`take matters into her own hands and her
`
`own darling Kewpie—with the absurd
`
`dimensions, tummy, topknot, wings,
`
`elf who did good deeds in a funny way,
`
`smile and all—was developed. George F.
`
`was created by Rose herself. “Kewpie”
`
`was an original name coined by Rose
`for her little cupid-like creations with
`
`tiny wings. She thought spelling it with
`a “K” seemed funnier.
`
`Using the Kewpies, Rose illustrated
`
`her children’s poems in W/ornan’s Home
`
`Companion . and Good Housekeeping
`magazines, as well as in books, Sunday
`cartoons, and cutouts (paper dolls).
`
`Borgfeldt & Company, the leading
`importer of toys at that time, asked that
`the statuette be delivered to their Paris
`
`office. From there, the Kewpie was sent
`
`off to the toy factories in Germany,
`taking his smile along with him.
`The first fruits of the factories were
`
`a shocking travesty of the Kewpie’s face
`and form. For some unknown reason,
`the factory had not cast the mold from
`
`These stories were a two-page format of
`illustrations and rhymes. In 1909,
`
`the statuette. Some trusty “hand” had
`made a copy .
`.
`. well baked and all
`
`Kewpies became a series in the Ladies
`Home journal. In 1910, Woman’: Home
`
`achieved in beautiful bisque. Rose went
`
`directly to Berlin. She stayed among the
`
`'Companion, and later Good Housekeep-
`ing, carried the Kewpieville series. Also
`
`ancestral doll factories in the Thuringer
`Wald area of Germany until she had
`
`in l9l0, The Kewpies and Dottie Darling,
`
`modeled twelve sizes of Kewpies and
`
`Rose with unidentified child and Cuddle
`Kewpies.
`
`Rose’s advertising campaigns
`
`included Edison Phonographs, Pratt
`& Lambert Paints and Varnishes,
`Kellogg’s Corn Flakes, Rock Island
`
`Railroad, and Oxydol Detergent. Her
`series of ninety-eight Jell-O gelatin
`
`

`
`

`
`

`
`
`
`THOMAS Y. AUNER
`ATTORNEY AND COUNSELOR
`3432 CULPEPPER COURT, SUITE B
`POST OFFICE BOX 10764
`SPRINGFIELD, MISSOURI 65808-.0764
`TELEPHONE (417)841-2777 FACSIMILE (417) 890-1778
`
`October 12, 2004
`
`HAND DELIVERY
`
`Robert W. Dickerson
`JONES, DAY, REAVIS & POGUE
`555 West Fifth Street, Suite 4600
`Los Angeles, CA 90013-1025
`
`Re:
`
`Abraham and Jesco V. O’Neill
`Opposition No. 115,853
`
`Dear Mr. Dickerson:
`
`Attached are three documents which I referred to in my letter to you last Friday. These
`documents may be used in Mr. O’Nei11’s deposition today.
`
`Very truly yours,
`
`(jam /)
`
`Thomas Y.
`
`uner
`
`TYA/mjw
`Enclosure
`
`
`
`

`
`
`
`
`
`.
`_
`~il—ZZ 6."'7/I.» Z’/ta /QZX
`‘A;/?
`3 'zL,;gL~aa:<L%
`2/)1.//Z/L7
`If
`,¢rf'(tL«€2 «£0-2/Z
`17/ '/1]‘:/1'/I«(2.
`V /56» 4,/<9~€'~7—41,’/7! ~/£6146 &/
`“Ma”
`ggzfzza/1 71/M2/fig,‘ "Z/Z/Z9~—(/xb aémzof
`
`_$
`
`
`
`
`.%l»1'7"7”'~'/ 'g~4¢%—yaw
`
`P‘AAu.L_ — E. . O»'N £1 L‘L .
`1114 South Naflbnal Ave;
`-
`
`Sprjngfield, Missouri
`
`
`
`/6]-'€»L.1/l«L,%’/K-4«’k.'('«"fi{
`
`A
`
`%
`
`
`
`

`
`
`
`
`
`..
`"V
`
`'
`
`“:2
`
`.
`.
`°.nf &i..:IVSne.r
`s}§¥%s,ifiowe$;s0o1lis
`Lincoln Building
`'
`V ”
`4. :"39fr§*‘EaSt A42nd St.reét__ _.
`New:York, N.Y. 10017 ~ ;
`
`
`
`‘.A§En:..Mr. Co11ison"
`
`iconcerningis Kewpie Copyrights,
`Patents and Trademarks
`
`'.This will ackhowledge receipt of your letter of April 4,
`
`
`
`
`Regarding your statement that I, as administrator for the
`
`‘estate of Rose O'Neill, had assigned in writing to Mr. Jas. L.
`
`Kallus, "all copyrights_and trademarks relating to the character
`2;
`
`Le ‘ie", and that I therefore appear in no position to question
`
`the "rights" of Mr. Kallus.
`5
`
`Perhaps the following will clarify my position:
`
`In 1947 I
`
`l_did assign to Mr. Kallus such rights for a period of 15 years,
`
`‘for which he paid a modest royalty of $500.00 per year.‘
`'4
`he approached me to make a statement that he was exclusive owner:
`
`In 1962
`
`,oftsuch rights.
`
`
`;In;myggenerous"manner and becauseiIwcons1dered,m~
`
`him a friend, I signed such a statement. Of course, I had no
`i»p5wer’to grant rights beyond the life of existing copyrights, ¢t¢.,-
`
`or_in perpetuity, as he seems to think.
`
`i also received nothing.‘ f
`
`for the favor; ~'h
`__
`
`
`d’.
`‘J;
`..
`..
`
`
`izu}{aw'§y B;1;;,§,¢
`And ,0
`of "the§i'ibook'
`0
`“¢¢¢wa1 as j;¢i
`Aip£é$pe¢c,¢sTs;1;If§gWtpg,s§¢k:‘i
`ijlheremwasslittl
`
`
`thf§'was'a'mistake;
`
`
`
`
`
`s.
`
`

`
`
`
`
`
`t3$§$§s Lgogg letter states that the assignment to Mr. Kalluédfias
`--"_:’.°:&.§a"c'c’;“1¥dé:a<a_"1»ia%:ch 1,
`195A8.§{""i"" It is obvious that my fatherdid neat
`'
`assign £3 Mr. Kallus twelve years after father's death.” I quote
`
`
`
` v”§cirEfiiarfi é?@¥"ah%§ssiéfimentfiexecuted in?
`
`States should be recorded within 3 months from the date of ekecu-
`
`tion."
`
`It appears Mr. Kallus, by some devious means,
`
`induced.
`
`9
`
`my widowed stepmother.to assign the copyright to him,
`no charge.
`‘
`
`likely at
`
`Since Mr. Kallus lays no claim to the hundreds of other
`
`Rose O'Neill KEWPIE copyrights, we assume there is no contesti
`
`Again quoting Circular No. 1:
`
`"There is no provision for securing
`
`‘a blanket copyright
`to cover all works of a particular author.
`Ea§hdyork~must be copyrighted separately if protection is desired."_
`
`1
`‘;y<;1l1*;ipf;;sm£eis:g..yv,y;chi thej
`
`
`
`.-x 1
`
`'~;':
`
`
`
`9' ‘.135’
`
`.—
`
`per se.' It so happens that the book is a composite of previously '
`
`Icopyrighted material; Therefore the copyright is actually worth-
`l' less exeept for new material added} VI quote copyright office
`
`Ixu.
`
`i
`
`
`
`'_f§he copyright in a new version coyers on1y.the:
`
`hafigés; or gthgg new material appearing for the first .
`
`fftime in the.work-;fi;,..;3iike§ise‘protection for a copyrighted 99
`
`
`
`
`
`

`
`
`
`.p'
`
`,.l
`
` _§oik;¢;np5tf§e 1”fig§p
`'»":4_:It__ that
`matte;moEy;yg;ig1;g§i%% I.<<"a§v1>V_1.esn.=__,,<=91'?'>""'*-‘:3’-c‘-.'.1'1*=‘.S_'. 3 _
`is figuratively«streahing-with nothing on'hut his "sneakers",
`""c§PYri8ht J.I;Kf” firominent on'his¥rumPit:He miéhfi get some photos
`.Lta§en;'(copyright_J.L{K{ of course); nIidj1iRe,a large one fidr '
`f;:iraming.
`It isgamosing to be reminded that I may have used~ r
`y“imprecise" language about copyrights. Thank you for-correcting
`
`Fl
`
`
`ashort;phrase$,gand slog nsfcannot beA_
` hted;
`.
`»“"“*‘-“°""".““"-"'*'“‘-.’*."":“-
`4%':r$*’+‘€:'v4:7~f:-:2‘-
`:==:‘“.‘.~'—.-.-~ .f-,i-'."-*9-'
`‘-1"‘
`,
`,
`‘
`._
`the point I wished to make that Keggie was a word
`in_the public domain is reinforced. This language should bed‘
`
`precise and sufficient to dislodge any claim of Mr. Kallus to
`
`copyright of the word ”KewEie".
`
`In summary;
`
`the copyrighted works of Rose o'Nei11 in regard
`
`are in the public domain and_thesword "KewEie” has7
`to Kewgies
`heen so for 65 years. Mr. Kallus does not own it;
`I don't
`
`imagine Mr. Kallus wishes to contest that all original Rose
`
`‘O'Neill design patents on Kewpie dolls have exoired.
`:¢r'§in?}1Y<€9
`
`+
`flvhut
`long ago all have expired.
`
`.n£§¢ased the-time,”‘
`
`‘
`
`They were
`
`
`'-o.':u'.:-as----0-aqua-up}.-an-a—-rauu-.«A...<....
`
`I-‘1‘ m:mnnu:.-.:-.'.-.-s
`
`‘h37Mr. Kallus has made an ass of himself over the years harassing
`'._1}eoplfe" who wished- towriteiarticles about Rose"_'C.)'VN_eil1 and her.
`{jniiérpiéss has _f<>.rnn:i;'~=f=i=a#=z.Pi<=fnh.‘>?°i‘4_r.n~ .i1nne.*=45enrn.
`n_n$9!??:<3i€éé;3fa
`(Mar 1} 1974)
`\’ii y§hiéh"inic1aced’§ut”éb£re§p§hdenc§:*’Ih=£he above 1éE£er_1, Mr; f
`
`‘A
`
`'
`
`

`
`».»
`
`-I
`
`x.—~’=».
`
`-»
`
`.. ;,,_...._...
`
`,_
`
`:d”Mr":Kallusfih;siwirtuallj'no.cop§right5on“orig1nal~
`
`
`
`
`Rose Qtgéill aft..;His_warning to me is sill},
`No one need ask,
`rag, __or anyone for permission to reproduce the illustration of.,_
`¥f?,;::-Qgég 29, 1973 in the Queen County Times,pnor any other expired_s-
`iii: &3R§ri8h5fOf 9riginal.Rose O'Neill art.
`;The Kewpie Magic and
`
`
`
`“T‘“‘Kewpiesta are nqpe;9f your client's business;
`
`‘No one need add-
`
`fie‘;:teae.lit5g;;s9ria...‘‘smashis-::..+.;;Ac:;:;¢¢1sageseat of his a
`
`
`
`
`trademark is not germaine not necessary when writing about Rose
`
`QfNeil1. Mrs. Hodges might well copyright her own work and ignore
`
`\
`
`iJ_.r_,.K.
`.
`Mr. Kallus annoyed MrsNFanse, who wrote, "Titans and Kewpies
`a biography of Rose O'Neill,
`He also made a nuisance of himself
`
`\
`
`ll
`
`with Mrs. Rowena Ruggles when she published “The One Rose", also_
`
`a biography of Rose.
`
`In the_latter the first, second and third
`
`issues of Kewpies in the Ladies Home Journal are shown, each
`with copyright J,L,K. under_the lower right corner, all of these
`every osspms,
`
`'inc1uding_photographs, Jello ads, pages from catalogs, china,
`
`
`
`
`
`gm
`
`
`
`Rose O'Neill art, and works obviously not Rose O'Nei1l's, are
`.fraudulentI§ marked copyright J.L.K. Any publication tending toi
`
`re§iveginterestein,Rose-OfNei1l and her_Rewpies_should be applauded
`e would think §a§£sg Kewpies tron waning iggsggst
`
`;
`
`

`
`
`
`way I énd, the iriends bf, Rose 9.fNeii11 have
`.;
`been treated, me might have done better dealing with Shylockg
`~Your ciientis sense of ethics and fair §1ay.seems to be none
`
`fif;fthese5has_beenjreturned.'
`
`,~. W .1,
`
`.
`
`existent or defying.description}-
`Let us not quibble about a trademark,‘ CertainIy,.Itdo_nothfit
`_,«__,,»,,.,,:_.,‘,_'~,'g_,,4_;.......,,...;.;........-.—.........
`.;:
`n
`r.
`r
`wish to challenge that Mr. Kallus has registered some éfirfi 6?
`
`trademark.
`
`The validity of the mark,
`
`the method used to obtain__
`
`it, and its possible abuse are open to question at any time.
`
`I
`
`reserve the right_to expose the truth.
`
`If Mr. Kallus would stay
`
`in the doll business, using his "exclusive" rights to trademark
`
`thereof, and enjoy open right to copyright any of HIS new Keggie
`
`material, putting his trademark on the same, if he likes, and
`
`leaving me,
`
`the writers and friends of Rose O'Neill alone, he a
`
`couid sleep better and profit no less.‘
`
`Sincerely,
`
`

`
`2:3::J».
`
`jizo.
`>44<zo_»<z;m»
`._....2.:.._.m..__.a_..z.€w,
`
`
`.:!..m..En:K B§F.........:....,....U.
`
`

`
`
`
`
`
`
`PAUL E. O'NEILL
`1114 South National Ave.
`Springfield, Missouri
`
`__
`
`March 27, 1971+
`
`NATIONAL ROSE O'NEILL.
`cum
`'
`-
`
`‘
`
`Branson,,Missouri
`
`Attntion: Mrs. Pearl Hodges,
`
`Dear Pearl,
`
`You have the letter from Jos. Kallus' attorney to Mr. Thos.
`Schweitzer of Queens Village, N.Y. Enclosed you will find
`my reply to the law firm. As far as I am concerned, it is
`a letter to the public.
`I am sending copies to you, The
`C.R.O.N.A., andMr. Schweitzer.
`
`If this does not blast Kallus out of the water, I shall stay
`with him till I sink him.
`I'm fed up with his impertinence.
`Rose would bite his head off if she could hear his drivel.
`Of course she would smile as she said it.
`It is odd that
`the lawyers nor Kallus sent anything to.me directly.
`Maybe Kallus is afraid of me becafiuse he knows that I
`have plenty of ammunition.
`
`Hoping for the best Kewpiesta ever in l97h
`
`with love and best regards,
`
`Applicant’s Exhibit
`
`
`
`

`
` ' PAUL E. O'NElL"L'"d
`
`»
`_ _;
`
`
`
`1114 South National Ave.
`
`$p'ringfie|d} Missouri
`
`. ‘June lhy l9lh w...
`
`
`
`
`
`
`
`-
`j.
`Dear Pearl,
`Oflifi did-have_the RIGHTS on Kewpies
`for as long as the copyrights were-‘
`V
`_
`\
`valid. He paid for the rights up until 1962;
`(see my letter to his lawyer, p.l) I had no idea he would
`take_advantage of the free rights I granted him thereafter;
`other than to publish Rose pictures etc. Who would think '
`he would try to be the Czar of Kewpieland?
`He got the
`"rights" to "The Kewpies and the Runaway Baby?..as expkained
`on p2. of my May 1, 197% letter to JLK's lawyer,
`tw3Bve‘years a
`after my father's death by the device of getting my fathers
`widow (my stepmother) to assign to him the “rights”. My father
`(as next of kin) had renewed the copyright, He left a will
`assigning to his second wife all his worldly goods,so..she
`could sign over to JLK the copyright.This was.on the renewal of
`Roses original copyright obtained by my father.
`I was mistaken about Callista not renewing any copyrights.
`I found no record of money being speht from Rose's estate for
`that purpose. I naturally thought_no renewals had been made.
`'
`She did make a lot of renewals IN HER NAME’fduring the last
`days
`of her life..( she passed October 11+, 19146). This makes
`the last renewals dead(expired) in I97h,except the ”Runaaay
`Baby". I am5%fi€fKallus does not know of the Callista renewals
`.
`or he would have swelled up like a poisoned toad with the
`word lashing I gave him.
`By Jan. 1, 1975 all.Kewpie copyrights
`with the
`exception of "The Runaway Baby} will have died 03
`old age. After that I plan to put the heat
`on the ogre of
`'
`Would you please loan me the book ” The Kewpies
`and the Runaway Baby"?
`I want to study;
`the work for source of the material from
`Rose's-previous work. Any old copyrighted
`Q
`/‘ material will be expired in 1975, 11*.
`‘
`12%
`it is not already expired. I did not
`
`
`
`;
`g
`‘
`° 9‘:’
`’*
`’
`
`l.
`
`:
`
`-
`
`"
`
`
`
`renew any copyrights, any Callista re-
`newed will be dead in 1975, and JLK
`will have only such new material as
`Rose may have put into the book.
`Sincerely
`
`'
`
`WI‘:
`
`
`
`
`
`

`
`
`
`.£31_...N.3........£..
`
`
`
`

`
`
`
`STATE OF MISSOURI
`
`\_
`
`COUNTY or GREENE
`
`)
`)
`)
`
`ss.
`
`AFFIDAVIT
`
`COMES NOW AFFIANT, PAUL E. O'NEILL, and states as follows:
`1.
`Having served from March 18, 1964, as a Trustee to the heirs of
`Rose O'Neill for her many original drawings,
`I desire to resign
`.and transfer such capacity to my nephew, David O'Neill.
`The said David O'Neill is to receive twenty-five (25%) percent of
`the net
`income from the sales of such drawings and shall have
`custody of catalogues, drawings, cabinets, negatives and other
`articles pertaining to such collection.
`
`2.
`
`3.
`
`4.
`
`5.
`
`6.
`
`7.
`
`The proceeds of any sales made by the said David O'Neill, after
`the twenty—five (25%) percent is deducted by David O'Neill, shall
`be divided among the heirs of Ros O'N ill
`share and share
`alike,
`to-wit:
`.Rau%=£==e¢fl6¥¥:,
`., Richard
`James O'Neill, Alice Rose Munger, and Patricia O'Neill, share and
`share alike.
`(anpé
`_
`when all of the above are deceased, David O'Neill, James O'Neill,
`and Janet O'Neill Sullivan shall receive the remaining works of
`Rose O'Neill share and share alike.
`
`No provision for James Munger, son of Alice Rose O'Neill Munger,
`is made because Paul O'Neill provided cash regularly to Alice
`Rose O'Neill Munger after her husband, James Munger, passed away
`on December 28, 1965.
`
`In the event of David O'Neill's resignation or demise, his
`brother, James O'Neill, shall succeed him.
`If James O'Neill is
`not available then.
`in that event, Janet O'Neill Sullivan or her
`appointee shall succeed.-
`
`Paul E. O'Neill retains a number of pieces of Rose 0'Neill's art
`in his home. This art is to remain in the home until such time
`as Paul E. O'Neill and his wife, Dorothy O'Neill, shall deliver
`it to the Trustee or until such time as they have passed away,
`after which time, it shall become a part of the collection in the
`custody of David O'Neill.
`
`}
`5
`
`\./
`
`‘
`
`SUBSCRIBED AND SWORN TO before me this
`.
`-
`
`Q 5, g @3' 5 Q
`
`PAUL E. O'NEILL
`day of December, 1989-
`
`4
`2!? A’/»......'....'-.#iz,o«'....: 7-/J’-‘?3
`
`SE)‘ 5 4‘
`
`‘N0"I'A:R!éY PUBLIC
`
`

`
`IN THE CIRCUIT COURT OF TANEY COUNTY, MISSOURI
`PROBATE DIVISION
`
`IN RE THE ESTATE OF:
`ROSE O’NEILL
`
`Deceased
`
`'
`
`*
`)
`) Estate Number:
`)
`
`1 1
`
`NOTICE OF HEARING ON PETITION TO DETERMINE HEIRSI-HP AND
`SUCCESSORS IN INTEREST
`
`
`To: Richard O’Neill, Patricia O’Neill, James Munger, Dorothy O’Neil| (deceased); and
`H it all other persons who claim any interest in the property hereinbelow described of Rose O’Neill, deceased,
`
`as an heir of said decedent or through any heir of said decedent, including, but not limited to, any person
`claiming by or through any of the following heirs of Rose O’Neill: Lee O’Neill, Callista O’Neill, Clarence
`Gerald O’Neill, Paul E. O’Neill, John H. O’Neill, John H. O’Neill, Jr., Mary Azalea (O’Neill) Meeker,
`Alice Rose (O’Neill) Munger or Mrs. J.H. “Jean” O’Neill.
`I
`You are hereby notified that a petition has been filed in the above court by David O’Neill,
`Administrator d.b.n. for a determination of the heirs and successors in interest of Rose O’Neill, deceased,
`who died on April 6, 1944 and of their respective interests as such heirs in and with respect to the following
`described property owned by said decedent at the time of death, to-wit:
`
`Original paintings, drawings, scetches, and story illustrations of Rose O’Neill. This includes
`items to be licensed described in a certain agreement as “Kewpie Art” consisting of Kewpie.
`characters as well as compilation rights in the work entitled “ROSE O’NEILL ART
`CATALOG”, and compilation rights in the work entitled “ROSE O’NEILL ART”as more
`particularly described in the inventory of said estate.
`
`You are hereby notified that you are entitled to appear and be heard at a hearing to be held September 16,
`1998 at 1:30 o’clock p.m.
`in the Probate Division of the Circuit Court of TaneyiCounty, Missouri at
`Forsyth, at which time and place said petition will be heard. Should you fail therein, judgment may be
`entered in due course upon said petition. Said action has been designated as an adversary proceeding and
`shall be governed by the applicable Rules of Civil Procedure and by Circuit Court Rule 33.
`
`Dated: August 13, 1998
`
`Attorney for Petitioner
`William G. Todd
`Mo. Bar No. 33259
`PO Box 2219
`
`p
`Nixa, MO 65714
`(417) 725-6492; Fax: (417) 725-8499
`
`.
`
`°‘
`
`
`
`

`
`Jul? 16. 1995
`
`xazuo & Hioako Kitaaawa
`oooide Hunem Osaka office
`clier Nishitennne 401
`3-5-2, Niehitenma. Kiatku
`Osaka. 530 Japan
`
`Dear Kazuo & Hiaako,
`
`As we discussed at Kewpieata in April. 1995. you wish to
`produce 1.2 n x 2.000 3 cloth minted in the Rose O'Neill art
`pattern.
`From that you would like to oanufacturo 500 shirts.
`500 night wear, and 500 bags.
`
`skahiii
`The O'Neill £ani1y is negotiating with Jones 8.
`and Jeeoo Incorporated for the exclusive rights to the Rose
`O'Neill Art name. As they have not. responded as o£ this
`date. I. as the exewtor of the Rose O'Neill Estate. will
`authorize you the me of the Race O'Neill Art pattern £or the
`quantity listed above.
`
`1!: the negotiation: between the O'Neill faoily and demo
`Incorporated are coopleted in the near future. the rights to
`produoeanyfuruneranotmtslayhavetobeobtainedthroush
`James B. skahill and Jason Incorporated.
`I will kept you
`inforued regarding this utter.
`
`
`
`
`
`

`
`
`
`1, David 0’Ne111. sxacutor as the Rose o'Nei11 Estate, hereby
`grant to xazuo and Hisako xitagava within the Japanese
`territory the right to produce 1.2 I x 2.000 I cloth printed
`in the Bose O'Neill Art pattern.
`‘me quantity of the printed
`material not to exceed 500 ahirts. $00 night wear, and 500
`bags.
`
` Si stature :
`
` vid 0'
`
`Date:
`
`July 16. 1995
`
`
`
`

`
`
`
`
`
`135291
`
`KEWPIE ICE
`SKATING FIGURINE
`
`CONTENTS:
`1 PIECE
`©)1=.sco 1995
`Under license from Jesco
`
`
`All rights reserved worldwide
`
`‘Licensee ENESCO CORPORATION
`V1
`‘
`.
`SM
`
`

`
`
`
`David O'Neill Volume II
`
`ORIGINAL.
`
`IN THE UNITED STATES PATENT AND TRADEMARK OFFICE
`
`BEFORE THE TRADEMARK TRIAL AND APPEAL BOARD
`
`In re Trademark Application of:
`
`David O'Neill
`
`Application Serial No. 75/327,229 Opposition No.
`,
`115,853
`Published in the Official Gazette
`
`of September 21,
`202
`
`1999, at Page TM
`
`MARK:
`
`ROSE O'NEILL KEWPIE
`21
`International Class:
`
`Opposers:
`
`RITA ABRAHAM an
`
`JESCO IMPORTS,
`
`INC.,
`
`Pages 1 to 36
`
`Volume II
`
`\’\,»—~.»»—~a_._~.’._z\/\/\/~a~a\/_’
`
`10
`
`11
`
`12
`
`13
`
`14
`
`15
`
`16
`
`17
`
`18
`
`19
`
`20
`
`21
`
`22
`
`23
`
`24
`
`25
`
`DEPOSITION OF DAVID O'NEILL
`
`TAKEN ON
`
`WEDNESDAY, OCTOBER 20, 2004
`
`Reported by:
`
`PHILIP D. NORRIS
`
`CSR NO. 4980
`
`J LEGALINK“
`
`A WORDWAIIIE COMPANY
`
`LegaLink Los Angeles
`16830 Ventura Blvd, Suite 315
`Encino, CA 91436
`
`teI (818) 986-5270
`tel (800) 826-0277
`fax (818) 783-7310
`
`www.|ega|ink.com
`
`GLOBAL COURT REPORTING - LEGAL VIDEOGRAPHY - TRIAL SERVICES
`
`

`
`
`
`David O'N