Say When

In about 1980 Dr. Tim Cranmer, a leader in the National Federation of the Blind of Kentucky and associated at the time with the Bureau for the Blind in that state, began working with a couple of Bureau employees to design a liquid level indicator which eventually became the Say When®. Kentucky Industries for the Blind, also a division of the state's vocational rehabilitation agency, recognized the value of this little product and made plans to manufacture it, using blind and visually impaired people to do the production. They took the precaution of having the name trademarked and began production with two people working every day on the job.

During the early eighties, according to Bob Byrd, Director of Kentucky Industries, sales began to take off. Not only were the catalog houses ordering the units for resale in their catalogs, but state agencies, individuals, and even agencies around the world began ordering the product. Kentucky Industries for the Blind eventually put three blind people to work full-time on the project, and they were turning out 2,400 units a month. They sold for $13.95 and held up well under steady use. At its peak the Say When was generating $700,000 a year in sales for KIB and was providing very fine jobs for three blind people.

Then, Byrd reports, in the early nineties business began to fall away. They soon discovered that Maxi-Aids was selling a product called Say Stop, which was also a liquid level indicator, and the price was $1 less than the Say When. As people began to contact Kentucky Industries to complain about the Say When, Kentucky personnel discovered that the units that were giving trouble were Say Stops. When they examined the Maxi-Aids product, they discovered that the Say Stops were not waterproof, and the wires to the battery—a hearing aid battery—were very light-gage and were corroding quickly. Byrd and company did not worry much because, according to him, they decided that as soon as people got used to the confusion in names and learned that the Say When® was superior, the market would pick up again.

But things did not get better; in fact, they got gradually worse. They discovered that someone had begun producing a product being called "Say When" as well. It was being imported from Asia, so it cost significantly less than the Kentucky Say Whens®. Not until about a year ago did Bob Byrd learn that Maxi-Aids was responsible for this infringement of its trademark. One by one the various suppliers abandoned the Kentucky product for the cheaper one. Marvin Sandler said he was the last to jump ship, but he was being priced out of the market, so he eventually had no choice but to find cheaper units to sell.

When asked whether Kentucky had plans to sue Maxi-Aids for infringement of trademark, Byrd said that he had discussed it with the Attorney General's office and that the decision was not to do so. The problem seems to be that the state would have to employ an attorney specializing in trademark law in the state where the suit would be brought, and it would simply be too expensive. Byrd pointed out, however, that a transition is taking place, and Kentucky Industries for the Blind is gradually becoming Kentucky Industries for the Blind, Inc. The transformation will be complete by June of 2000, and the trademarks will belong to the new, private entity. At that point the company will be free, if it chooses, to pursue those who infringe on its trademarks in the future or even those who did so in the past.

Byrd commented wryly that he should have suspected that Maxi-Aids was the culprit in the Say When® disaster. At about the same time as the Say When problem was heating up, they discovered that Maxi-Aids had begun advertising its own version of another Kentucky trademarked product, which it called by the Kentucky trademarked name—he thought it was Hi-Marks—and a marketing person from Kentucky Industries for the Blind called Maxi-Aids to protest the action and demand that they remove the product from the Maxi-Aids catalog. Apparently without comment Maxi-Aids complied with the demand. But that did not stop the Zaretskys from pulling the same stunt with the Say When®.

Bob Byrd was to have testified at the Maxi-Aids trial until serious illness in his family kept him at home. Bits of the story came out during the trial, but without Byrd's testimony it was somewhat unclear. Part of the difficulty, according to Sandler, was Harold Zaretsky. Harold is deaf and used an interpreter, which in itself compounded the problems of getting accurate testimony. Sandler says that Harold has limitations but that he is innately honest, though easily led by members of his family.

During his deposition, Sandler says, Harold testified that in the early nineties he was producing Say Whens in the Maxi-Aids warehouse. Eventually production was moved overseas. By the time Harold got onto the stand during the trial, he had a different story to tell. He said that he had made one Say When to show to the Asian manufacturers but that he had not produced them for sale in quantity. Dweck got permission to read Harold's conflicting testimony from the deposition into the court record, but in the end he did not do so. It is clear from talking with Sandler that he has no stomach for attacking Harold. In fact, one of the things he holds against the other members of the Zaretsky family is what they have done to Harold through all this.