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Originally published Sunday, July 13, 2008 at 12:00 AM

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Tiny firm beats Sears in turkey wrangle

Retail giant Sears made a birdbrained decision when it tangled with tiny Lucky Break Wishbone. A federal jury this past week awarded the...

Rami Grunbaum, deputy business editor, and Seattle Times Business staff

Retail giant Sears made a birdbrained decision when it tangled with tiny Lucky Break Wishbone.

A federal jury this past week awarded the Southwest Seattle company $1.7 million after concluding Sears and its advertising agency, New York-based Young & Rubicam, misappropriated its copyrighted design for a plastic turkey wishbone.

After talking to Lucky Break owner Ken Ahroni about buying the 1 million wishbones it wanted for a national Thanksgiving promotion in 2005, Sears turned to a Chinese manufacturer who whipped up the molded pieces at a lower cost.

"It happens too often to these small businesses... I don't think they ever thought Mr. Ahroni would have the wherewithal to fight it," says Mark Walters, one of the Darby & Darby attorneys representing Lucky Break.

He says the attitude from Sears was, "A wishbone is a wishbone, they all look alike."

But it turns out there are a few experts in the field of avian osteology — bird bones — who aren't fooled by the plastic wishbone sculpted for Ahroni's company.

"Maybe about a dozen people in the country" would know "that the anatomy of this (plastic) bone doesn't occur in any bird," testified David Steadman, curator of ornithology at the Florida Museum of Natural History, who oversees one of the world's top collections of bird bones.

He found seven "pretty blatant, pretty obvious" ways in which Ahroni's copyrighted bone differed from real turkey wishbones — things like a ridgeline at the symphysis of the furcula.

Hours of such detailed scientific testimony evidently convinced jurors that the Sears wishbone, which was nearly identical to Ahroni's, could not have been copied from Mother Nature.

Sears says in a prepared statement that it is disappointed in the verdict and is "exploring our post-trial options."

Ahroni feels vindicated: "They got caught with their hands in the cookie jar this time... They kept claiming independent creation and never presented any evidence."

He speculates that Sears and its Chinese contractor, on a tight deadline for the Thanksgiving promotion, modeled their wishbone on his rather than a genuine one because "it's hard to find turkeys in China. And you wouldn't find a whole turkey (with wishbone intact) because they cut them up... "

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The 2 ½ year legal ordeal has taken its toll. Ahroni says his wishbones — $4 for a four-pack, $196 for 400 — were sold in about 1,000 stores in 2006, his best year. Now he's down to about half that many.

With the distractions and costs of the lawsuit behind him, Ahroni plans a new marketing push to promote his wishbones and fulfill his original vision: improving on Mother Nature, which neglected to provide enough wishbones so that every diner can have one.

Drivers feel burned by fee for cars

that use natural gas

Last July, Stephen Lillie, of Tacoma, became the proud owner of a natural gas-powered 2001 Honda Civic, rated one of the cleanest cars on the market.

Besides helping to save the environment, Lillie was excited about saving money — until he saw his $191.75 annual licensing fee. That's $140 higher than for a gasoline-burning Civic.

To Lillie, the charge seemed like a penalty where there should be an incentive for using emission-free natural gas. He couldn't understand why Washington state charged him $121 more to register his ultra-green Civic than his gas-guzzling Toyota Land Cruiser.

At first, neither could officials in the state Department of Licensing. The answer traces back to an obscure state law last amended in 1983. Most of its sponsors are now deceased.

That law levies a special annual licensing fee on natural gas and propane vehicles in lieu of the fuel tax paid by their gasoline-powered cousins, which finances highway maintenance. Since natural gas isn't taxed at the pump like gasoline (and logistically couldn't be), instead it's taxed annually on the car's registration, said Department of Licensing spokesman Brad Benfield.

California and Oregon, by contrast, charge the same licensing fee no matter what kind of energy a car consumes. Those states also provide other incentives for natural-gas vehicles, such as tax breaks and single-occupant access to car-pool lanes.

The state's fee actually represents a tax savings for someone who drives more than 9,700 miles or so a year (the national average is 12,000). But Lillie said he only drives 6,279. Burning 209 gallons of natural gas a year and paying the $140 fee, Lillie said he pays the equivalent of a 67-cent highway use tax — almost twice the 37.5-cent rate that a gasoline-burning Civic driver would pay. To Lillie, that looks like an incentive to drive more.

Lillie is not quite alone in this predicament, but he's pretty close. Most of his commiserators are cabdrivers, who are similarly frustrated by the lack of incentives since their companies switched over to natural gas.

"We were told there'll be incentives," said Amjad Khokhar, who drives a STITA taxi out of the Seattle-Tacoma International Airport. "I haven't seen one yet."

Khokhar and other cabdrivers said they'd like the state to follow California in allowing natural-gas drivers to use car-pool lanes even when driving alone.

In all, 1,807 cars statwide run on propane and natural gas (578 of them in King County), or 0.04 percent of the total. Of those, 841 are government-owned or tax-exempt.

So depending on the tonnage of the remaining 966 vehicles, the tax raises between $135,843 and $754,687 a year, or less than 0.0004 percent of state revenue.

No matter how few, Lillie said he's still frustrated that unlike other states, the state isn't giving him incentives, rather than taxing him, to drive a clean machine.

— Isaac Arnsdorf

Comments? Send them to Rami Grunbaum: rgrunbaum@-

seattletimes.com or 206-464-8541

Copyright © 2008 The Seattle Times Company

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