convoluted tale.) The Court of Appeals also kept alive Kimble’s claim for breach of an oral agreement back in 1990. That may allow Kimble to receive compensation for new versions of the toy, such as the Ultimate Web Blaster, that are not covered by the patent. Quite the super mess after two decades of litigation, with no resolution in sight.
Moving Forward The case now goes back to the Arizona District Court, where the parties will have a chance to present more evidence on the meaning of the 2001 Settlement Agreement. Depending on whether such evidence supports either Marvel or Kimble, the District Court judge will be able to decide in that party’s favor. However, if the evidence does not clearly support one side or the other, the case will have to go to a jury for further direction. Things could have been simpler, faster, and far less expensive. The Settlement Agreement could have clearly spelled out either what Marvel asserts it says, or what Kimble wants it to mean. Instead, it was deemed legally ambiguous. The Web-Blaster case
DECEMBER/JANUARY 2014
might have been resolved more easily if the parties had further considered how someone else might see the terms after several years and under evolving circumstances. It makes sense for toy companies to indulge in some business-like role-playing—imagining various future scenarios—to weave agreement language that elucidates, and does not ensnare, the parties. Future business developments and business plans and scenarios should be disclosed and considered—not kept secret—to negotiate a successfully clear and longstanding binding agreement. It may turn out that what Peter Parker’s aunt told him is true: “Secrets have a cost. They’re not free. Not now, not ever.” ■
Howard N. Aronson has provided legal counsel to toy industry companies for the past 30 years. He is the managing partner of Lackenbach Siegel LLP, an intellectual property law firm recognized for its nine decades of handling toy company issues. Contact Aronson at haronson@LSLLP.com or (914) 723-4300.
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