Plaintiff says PepsiCo wants him to sip bitter medicine ANNE ARUNDEL

July 13, 1993|By Norris P. West | Norris P. West,Staff Writer

Arthur Takeall describes himself as a courthouse novice who got a crash course in hardball tactics after he sued PepsiCo over the company's popular "right one" slogan for Diet Pepsi.

The 47-year-old ventriloquist, who has a dummy named Scooter, maintains that he created the slogan "You Got the Right One -- Uh Huh." He said PepsiCo lawyers started playing rough after winning a key round of their legal battle over who created the line.

PepsiCo lawyers froze Mr. Takeall's bank account in what he calls a campaign to pressure him into settling or dropping the case.

Sitting in the living room of his home in a modest Annapolis neighborhood, Mr. Takeall tallied the days since PepsiCo filed a lien against the $1,958 in his bank account at Maryland National Bank. This was Day 48.

Mr. Takeall, who served in the Air Force in the 1960s, said the frozen assets include his veteran's disability pay.

"I thought it was unfair for them to attack me in that way, knowing that I'm a disabled veteran," he said.

Lawyers for PepsiCo entered the lien after obtaining a $14,049 judgment to recover some of the costs incurred in defending the soft-drink giant in the federal copyright-infringement suit.

Mr. Takeall said part of the money in his frozen bank account is from his VA disability pay. He said he went into the matter as a novice and has ended up on the wrong end of a serious game of legal hardball.

"Their public image is one thing, but they're waging what I call a personal war against me," Mr. Takeall said.

He maintains that he created the line, "You've Got the Right One, Uh Huh," although U.S. District Judge Frederic N. Smalkin ruled that there was not enough evidence to prove that PepsiCo knew about his slogan before beginning its successful advertising campaign.

Mr. Takeall has appealed Judge Smalkin's ruling to the 4th U.S. Circuit Court of Appeals, which is expected to hear arguments this fall.

Mr. Takeall contends that PepsiCo seized his assets to pressure him into either settling or dropping his case. In addition to the lien, the company also had sought to recover nearly $140,000 in legal fees, but Judge Smalkin denied that request in a sharply worded order.

The judge said that PepsiCo was "hardly magnanimous in victory" and that the lawsuit was not "so lacking in merit as to be worthy of sanctions."

Efforts to reach PepsiCo's lawyers were unsuccessful. The firm is represented by Hunton & Williams, a Washington law firm.

But Ann Ward, a spokeswoman for PepsiCo at its headquarters in Purchase, N.Y., said the company was entitled to recover its expenses.

"If somebody does damage to our trademark or makes a claim, that's something we have to defend," Ms. Ward said. "It's not a question of going after anyone's assets. It's a matter of protecting our trademark."

She said lawyers were trying to ensure that Mr. Takeall's disability checks would not be affected. She said the VA money in his frozen bank account will be released when lawyers are able to distinguish that portion of his assets from other funds.

Ms. Ward said Mr. Takeall had failed to make his case and that he has refused to accept the company's settlement offers.

Neither side would discuss figures or conditions offered in settlement negotiations, which went on before and after Judge Smalkin's summary judgment ruling for PepsiCo Dec. 23.

Mr. Takeall said he endured 40 hours of interviews by PepsiCo lawyers over three days and answered questions candidly. But he said the lawyers manipulated his words.

For example, he said, lawyers asked him specific questions about his ventriloquism jobs in the early 1980s. He said he didn't mention "The Right One" until he was asked about it directly. He said the lawyers concluded that if he really created the slogan, he would have talked about it while answering other questions.

"It was skillfully put together because they are lawyers and that is what they are paid to do," Mr. Takeall said. "I'm a novice and I wasn't aware that they were going to turn my truths into nontruths."

Mr. Takeall, a former disc jockey, said he has used the "right one" phrase with Scooter since 1983 and offered to sell it to PepsiCo subsidiaries in June 1989. The company has said it was not aware of the ventriloquist when it launched its advertising campaign, with Ray Charles singing the phrase, during Super Bowl XXV in 1990.

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