'Custody' fight over Cabbage Patch dolls

Not everyone is happy with the craze over Cabbage Patch dolls. Appalachian artist Martha Nelson Thomas says she originated the idea but has received no credit for it.

''It was my idea,'' she says. ''I started working on the design in 1971 and developed it over the years.''

Mrs. Thomas is seeking $1 million in damages from Xavier Roberts, the wealthy Georgia artist who has been selling the dolls for several years and from whom Coleco company got the rights to mass produce them by computer in Hong Kong.

The Hong Kong versions, which sell for much less than Roberts's dolls, have been the cause of considerable pushing and shoving in some stores as customers grab for the latest supplies of them.

But before the mass-produced versions sold, Roberts was selling his own. (His handmade versions sell today at prices ranging from $125 to $1,000). His marketing strategy has been to tell customers they are ''adopting'' the doll, ''born'' from cabbages. His operation runs the Babyland General Hospital in Cleveland, Ga., in a renovated clinic.

Before Roberts was selling his dolls, Mrs. Thomas (then Martha Nelson) was selling her version.

She would listen to children's comments about her dolls and make changes to suit their tastes, she said in a telephone interview from her home in Louisville , Ky.

Mrs. Thomas says met Roberts in 1976 at a fair where she was selling her dolls. He liked what he saw and asked her to supply him some for sale at a Georgia state park where he then worked. But after some of her dolls had been sold there, she says, she decided to stop supplying them because she was concerned he might take the idea away from her.

When Roberts began producing his own dolls, Mrs. Thomas noticed a resemblance in design. ''The dolls are very similar,'' she says.

The marketing technique also resembled hers, says her attorney, Jack Wheat, of Louisville, although Mrs. Thomas says she never used the word ''adoption.''

So far, Roberts is winning the legal battle.

The case was divided into two parts: copyright and fair trade. After the copyright hearing, a federal district court judge ruled last March that the copyright Roberts had obtained was valid and that he had not misrepresented himself in not giving credit to her product.

Mrs. Thomas said she never got a copyright, not realizing she would need it.

Attorney Wheat says he plans to appeal the ruling as soon as the second part of the case is heard.

The second half focuses on whether or not Roberts is in violation of federal law for claiming in advertisements that his product is ''original.'' A hearing is expected in Atlanta this summer, he says.

Roberts' attorney, Stanley Birch, of Gainsville, Ga., says Roberts got the idea for his dolls ''partly from her (Mrs. Thomas).'' But, he adds, ''his expression of an idea is quite different from hers.''

These differences were noted by a federal district court judge in Atlanta in another case involving the dolls, he says. The case concerned Roberts' challenge of another toymaker's production of similar dolls. Roberts won that challenge. The dolls by Mrs. Thomas were cited in the case; the judge compared them to the dolls made by Roberts and found them ''generally dissimilar,'' noting differences in facial expression, nose, fingers, and eyes, according to attorney Birch.

But attorney Wheat says the judge in the copyright case noted the differences between the Thomas and Roberts dolls were only ''slight.''

''I know we're asking for money,'' says Mrs. Thomas, who is married and has a 13-month old son. ''But that's not the reason we're in it. It's not completely honest to sell his dolls, and then, when asked where it originated, to omit my part,'' she says.

She also is unhappy with the fact that the dolls are now being mass produced. ''There are too many mass-produced things. You need something personal, something hand-made, with someone who will stand behind it,'' she says.

Mrs. Nelson is not the only one unhappy with the Cabbage doll phenomena.

Two years ago Roberts's dolls won the ''worst gift of the year'' award from a small organization, Alternatives, in Ellenwood, Ga. The organization, which didn't like the way the dolls were marketed, tries to encourage thoughtful gift giving, with less spending on purchased items and more diverted to charitable causes. Milo Shannon-Thornberry, Alternatives director, says the dolls were ''marketed as a substitute for loving real kids.''

Asked how many dolls are produced at Roberts's company these days, one employee said she was never sure: ''We really don't know how many cabbages go into labor each day.''