OMG Girlz Asks For Second Shot at MGA Trial Over Dolls

Former teen pop group OMG Girlz is asking a California federal court for another trial over MGA Entertainment Inc.'s “L.O.L Surprise! O.M.G. Dolls” in light of the Supreme Court’s recent trademark decision in a case involving a dog chew toy and Jack Daniel’s whiskey.

A Los Angeles jury determined in May that MGA’s dolls didn’t rip off the former band members’ names and likenesses in a case that has so far involved a mistrial, allegations of racism, and calls to sanction attorneys.

Amid a back and forth volley of filings regarding attorneys fees, the OMG Girlz filed a motion for a new trial in the US District Court for the Central District of California on Tuesday. The motion claimed MGA’s defense that the dolls were “expressive works entitled to First Amendment protections” and Rogers test instructions were “erroneous” based on Jack Daniel’s Properties Inc.'s win over a dog toy maker at the high court.

The Supreme Court’s “narrow” ruling tested the reach of trademark rights in the face of First Amendment claims, restricting the Rogers test for determining trademarks in expressive works. The court unanimously said the Rogers test doesn’t apply to unlicensed use of trademark to help identify a product’s source. The justices declined to comment on the widely adopted standard.

MGA originally filed a lawsuit in December 2020 against OMG Girlz, Xscape singer Tameka “Tiny” Harris, and rapper Clifford Harris, who goes by the stage name “T.I.” Harris and T.I. are OMG Girlz member Zonnique Pullins’ mother and stepfather. The toymaker sought a declaratory judgment that its dolls didn’t infringe on the former group’s IP rights.

The OMG Girlz, who performed from 2009 to 2015, responded with counterclaims alleging misappropriation of their name and likenesses, trade dress infringement, and unfair competition. The former band claimed the dolls’ names and appearances were intentionally designed to look like the members of the band.

The newly filed motion seeks judgment in favor of the band in addition to a new trial on the lawsuit’s trade dress and right of publicity claims on grounds that MGA’s CEO Isaac Larian “testified the OMG Dolls express no message.” It also said that the jury was incorrectly instructed that the OMG Girlz had to establish secondary meaning to win the case.

MGA declined to comment on the motion.

MGA Entertainment Inc. is represented by Umberg Zipser LLP, Keller Anderle LLP and in-house counsel. T.I., Tiny Harris and the OMG Girlz are represented by Winston and Strawn LLP and Sheppard Mullin Richter and Hampton LLP.

The case is MGA Entertainment Inc. v. Clifford T.I. Harris, C.D. Cal., No. 2:20-cv-11548, filed 7/11/23.