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And no, I'm not making this up. The 15-page complaint is in my hands, filed by the San Francisco law firm of Crosby, Heafey, Roach & May and assigned to district judge Charles R. Breyer. It asks for unspecified damages and legal costs from Smigel.
"In an attempt to harm the Sock Puppet's audience appeal and market share, and to increase Triumph's popularity through a public 'controversy' or 'scandal,' Defendant (Smigel) has claimed on national television, the Internet and in print media that Pets.com stole the idea and creation for its Sock Puppet from Defendant and that the Pets.com Sock Puppet is a 'rip-off' of Triumph," the suit alleges.
Pets.com also believes that Triumph's attacks on its mascot created "an undesirable, unwholesome and unsavory mental association" with its Sock Puppet in the minds of consumers.
Smigel — through his friend Jeff Ross, the executive producer of "Late Night" — declined comment. But Ross, upon hearing of the lawsuit, told TV Barn, "You want my first comment? I think it's hysterical."
But another passage in the complaint suggests that this is more than a stupid Pets.com trick. The plaintiff alleges that Smigel "has threatened a lawsuit for trademark infringement, unfair competition, trademark dilution and tortious interference with contract directly against Pets.com by letter sent to Pets.com in California."
No one has made public a copy of Smigel's letter to Pets.com — but given his reputation for sometimes over-the-edge comedy, one wonders if the pet-supply people aren't mistaking a slam for slander.
Besides his occasional appearances on "Late Night," Smigel contributes a sharp-edged cartoon to "Saturday Night Live." One of them, in 1997, mocked NBC's parent company General Electric so mercilessly that "SNL's" executive producer Lorne Michaels had it pulled when the episode was repeated later in the season. But Michaels never suggested he had legal motives for his action, and afterward Smigel licensed the censored video to the media watchdog FAIR, which used it as a premium to new members.
Pets.com bases much of its case on appearances made last month by Smigel and current "Late Night" head writer Jonathan Groff on "The Daily Show," "Inside Edition" and the New York Daily News Web site. On each of these, the two men (and Triumph) claim that the Sock Puppet is a pale copy of Triumph.
But judging from one of the segments — airing on the March 16 "Inside Edition" — the allegations seem to have been intended to be taken with a grain of salt. Groff even jokes that Triumph is more upset about the Pets.com TV ads than is Smigel.
Boosted by $57.8 million in financing from e-tailing giant Amazon.com, Pets.com (ticker: IPET) is seeking to dominate the online pet-supply business, even as many analysts are saying the sector is due for a shakeout. Pets.com collected just $5.8 million in its first year of business while racking up losses of $61.8 million, and has seen its stock price fall from $14 a share (shortly after the company went public in February) to its current level of $3.13 a share at the close of trading Monday.
The slogan of Pets.com is "Because pets can't drive." Our furry friends can't talk, either, or else they might have a thing or two to say about this line from the opening paragraph of Pets.com vs. Smigel: "The Pets.com Sock Puppet was created to be the voice of pets and an advocate of pets, expressing to pet owning families -- children and adults alike — the way pets feel about a wide variety of pet-related issues."
The Sock Puppet has already been a source of controversy. Last month the New York Times reported that shortly after the Walt Disney Co. bought a 5 percent stake in Pets.com, the Sock Puppet started making "guest" appearances on a number of Disney-owned media outlets, including three affiliated with ABC's news division: "Good Morning America" (where he sang to co-host Diane Sawyer), "Nightline" and the Mr. Showbiz Web site, which doubles as the entertainment page of ABCNews.com.
Viewers were never told that Disney had a financial stake in Pets.com. Nor, apparently, was the media: A March 20 press release sent to TV Barn promoting the Sock Puppet's appearance on Mr. Showbiz makes no mention of Disney's investment.
This is not the first time individuals connected with "Late Night" have been sued, either. During the show's first season, a "Clutch Cargo" sketch featured likenesses of celebrities Ted Danson and Whoopi Goldberg following their "blackface" appearance at the Friars' Club. But it wasn't Ted or Whoopi that got mad — it was comedian Red Buttons, whose name was mentioned during the sketch. Buttons slapped $20 million lawsuits on O'Brien, Michaels, Ross and the NBC network. A judge later dismissed the cases.
Wouldn't the Pets.com lawsuit be a juicy target for Groff and his writing team at "Late Night"? Of course, said Ross — but he'd have to consult NBC's legal eagles first. The fact that only Smigel is named in the suit may hinder the show from making fun of it.
Here are samples of Triumph's wisdom, taken from his appearance at last year's NBC upfront presentation:
- On new NBC executive Garth Ancier's previous job at the WB: "I've got worms in my stool that have shows on the WB!"
- On the returning NBC comedy "Veronica's Closet": "Is that poop still on the air? Are you kidding me? Whose leg did Kirstie Alley have to hump to get that?"
- On network relations: "Oh yeah, the affiliates are really happy with NBC! I read all about that compensation thing. You guys are getting it doggy-style from the network!" (Conan O'Brien: "You've got the wrong idea, Triumph — we're one big happy family at NBC." Triumph: "Oh yeah, and I'm banging Lassie!")
Thanks to Jennifer Fine and the staff of the Los Angeles Daily Journal for their assistance with this story.