Under Armour and Nike Settle Trademark Infringement Lawsuit

Since we are in the midst of March Madness, we here at Abnormal Use take this opportunity to relay a recent apropos settlement involving two sports brand powerhouses. According to the Baltimore Sun, last month, Under Armour and Nike settled a trademark infringement lawsuit arising from Nike’s use of the certain phrasing in its advertising.  In its complaint filed early last year in federal district court in Maryland, Under Armour alleged that Nike launched an advertising campaign that appropriated “I Will” prominently and repeatedly, which suggests Under Armour’s longstanding use of its iconic “I Will” tagline for its similar performance products.  Under Armour claimed that Nike used slogans such as “I will finish what I started” and “I will sweat while they sleep” in various social media ads.  The company also complained that Nike used a variation of Under Armour’s phrase “protect this house” by using the Nike tag line “I will protect my home court.” As one might expect, the terms of the settlement were not revealed.  (The Sun quotes Under Armour as saying only: “The litigation has been resolved on a confidential and mutually agreeable basis.”). But one can only imagine the settlement amount was a drop in Nike’s proverbial bucket of revenue.  Quite frankly, when we here at Abnormal Use first got wind of the “I Will” dispute, we thought it was Under Armour’s, not Nike’s, use of the phrase that was causing such flack.  Why?  “I Will” is an appropriate and clever response to Nike’s universally known command “Just Do It.”

Friday Links

glad

Okay, so we’re going old school today with All-American Comics #62, published way, way back in December of 1944.  According to Wikipedia, All-American Comics was the brainchild of All-American Publications, a predecessor company of the more well known DC Comics. On the cover, we see the original Green Lantern presiding as a judge with gavel in hand while Doiby Dickles, a Green Lantern sidekick, is acting a prosecutor, apparently, although we’re not certain of the identity of the witness, presumably the defendant.

The Drug and Device Law blog doing Throwback Thursday is the best thing ever. See here.

The Hollywood, Esq. blog brings us this story: “Teller Wins Lawsuit Over Copied Magic Trick Performance.”

Heads up! Yesterday, the senior resident superior court judge of the Mecklenburg County, North Carolina superior court division issued the following administrative order:

In order to promote the efficient and timely disposition of matters appealed from the Clerk of Superior Court and to prevent the development of a backlog of pending appeals, the undersigned Senior Resident Superior Court Judge for the 26th Judicial District enters the following Order.

IT IS ORDERED that, in all appeals from decisions of the Office of the Clerk of Superior Court of Mecklenburg County, the appellant shall contact the Caseflow Management Division of the Trial Court Administrator’s Office of the 26th Judicial District not later than 30 days from the date of the appeal to schedule a hearing before a Superior Court Judge. A failure to comply with this Order shall result in a summary dismissal of the appeal, and the matter shall be remanded to Clerk of Superior Court.

Finally, we were saddened to hear the news of the recent death of character actor James Rebhorn. Two years ago, he kindly agreed to an interview with us on the occasion of the twentieth anniversary of the release of My Cousin Vinny, in which he appeared as an expert witness. You can read that interview here. In fact, The Guardian quoted a paragraph of our interview in its obituary of Rebhorn. Rest in peace.

Court of Appeals Puts Unnecessary Quotation Marks Around “Facebook”

Okay, so we don’t usually write about family law cases here at Abnormal Use, and it’s been a while since we wrote about events from the state of Nebraska. Yesterday, while perusing cases mentioning Facebook, we stumbled across In re Interest of A.W. & L.W., No. A-13-540 (Neb. Ct. App. Feb. 25, 2014), a recent case in which the court of appeals found “that the evidence clearly and convincingly established that termination of [the father’s] parental rights was warranted pursuant to [the relevant statute] and that termination was in [the children’s] best interests.” Yes, this is a case involving a father’s appeal of the trial court’s termination of his parental rights and the appellate court that affirmed that decision.

Chiefly, the case concerns the frequency of the father’s contacts with his children – or the lack thereof. This being the modern age, some of those contacts occurred via social media. Here’s some excerpts from the opinion itself:

After moving to Las Vegas, [the father] claimed that he attempted to maintain contact with his children through his uncle’s “Facebook” account. However, according to [the father], 2 weeks after he moved, [the mother] learned that [the father] had been using the uncle’s “Facebook” account and blocked the uncle from her and the children’s “Facebook” accounts. [The father] made no other attempts to contact his children during the time that he resided in Las Vegas until he moved to Larchwood, Iowa, in 2012, at which point he had two visits with his children: a 2–hour supervised visit on March 31, 2012, and a 1 1/2–hour therapeutic visit on January 4, 2013, supervised by [another adult]. [The father] did not see his children after the January 4 visit, despite his requests to have visits.

[The father] claimed that he did not contact his children while he was in Las Vegas after [the mother] blocked his uncle’s “Facebook” account because he thought that [the mother] had a protection order against him and he would have to contact his children through her. During the time that [the father] was in Las Vegas, [the mother] did not receive any communications from [the father], his friends, or relatives regarding arranging visitation with the children, even though [the father] had [the mother’s] e-mail address which was known to [the father] prior to his move to Las Vegas and remained the same. Further, [the father] did not send the children any letters, cards, or presents during that timeframe.

[The father] first contends that the county court erred in finding that he had abandoned his children pursuant to § 43–292(1). He contends that he did not abandon his children for the relevant 6 months immediately prior to [the mother’s] filing of the complaint for modification, which requested termination of his parental rights, because he continued to pay child support and attempted to contact his children through “Facebook” during that 6–month time period.

[The father] admits his efforts at maintaining contact with his children from November 2010 until March 2012 were minimal. He testified that he attempted to contact [the children] through his uncle’s “Facebook” account for about 2 weeks after moving to Las Vegas, but then he claimed that [the mother] discovered he was using the “Facebook” account and blocked his uncle from her account and the children’s accounts. [The father] admits that after the initial 2 weeks that he was in Las Vegas, he did not contact the children but claimed that he did not make additional attempts to contact his children for 1 year because he believed that [the mother] had a protection order filed against him.

Nothing extraordinary there, right? Certainly, it’s not unusual for references to Facebook to make their way into litigation, particularly family law cases, where the parent’s everyday decisions and lifestyle may be at issue. Most of us communicate using the Internet generally, or social media specifically, and a case analyzing one’s communications will likely stray into Facebook, Twitter, and the like.

But here’s the thing: It’s 2014. Why is the court of appeals placing scare quotes around the word Facebook? Isn’t Facebook such a prevalent and prominent website that we can now refer to it without quotation marks? By our count, the court mentions Facebook seven times in the opinion, and each time it does so, it places unnecessary quotation marks around the company name. Why?

The Fitbit Class Action Litigation

After recalling several models of its Fitbit Force bracelets, Fitbit now faces a class action in California.  Plaintiffs allege that Fitbit did not alert consumers of possible skin irritation.  Fitbit reported in January that it was aware of 9,900 instances of skin issues with the Fitbit, approximately 1.7 percent of users. Previously, the company issued public statements regarding the issue and offered full refunds, but that has not appeased the purportedly injured.  According to the suit, Jim Spivey, the named plaintiff, lost money or property and time and opportunity as a result of Fitbit’s alleged false advertising.  Further, the suit alleges that the defendant continues to hold money which rightfully belongs to the class for reimbursement or compensation for physical and emotional injuries.  Allegedly, the product’s wristband can increase the risk of experiencing an adverse cardiovascular event, which apparently includes increased risk of skin irritation, rash, burns, blistering, cracking, peeling, bleeding, oozing, boils and other physical injuries. Fitbit responded in The Wall Street Journal stating, “Based on our initial review of the lawsuit, the complaint asks for a recall of Force and a refund to consumers. Fitbit took initiative long before this complaint was filed, publicly offered refunds, and worked closely with the CPSC on its voluntary recall program. We strongly disagree with the statements about the product and the company.”

Interesting, Mr. Spivey, who bought his Fitbit in January, has not developed any skin irritation, so there’s that.

Coffee: The Next Great Humanitarian

 Exo-Reaction-Housing-System-Easy-to-Assemble-Flat-Pack-Emergency-Shelter-7-537x340

We here at Abnormal Use have written about coffee numerous times in recent years.  Typically, those posts have addressed whether hot coffee presents an “unreasonably dangerous” condition for which merchants can be held liable.  It is a topic oft-debated and one that can elicit some negative responses.  Rather than rekindle the hostility, we here at Abnormal Use would now like to educate you on the more noble, altruistic side of coffee.  The side that can serve as a support system for thousands of displaced people.  Prepare to be amazed. Watching thousands of people crowded into shelters in the aftermath of Hurricane Katrina, Michael McDaniel developed the Exo Housing System –  a  portable sheltering system, light enough to be moved by hand but “strong enough to stop bullets” according to the website of McDaniels’ company, Reaction.  The Exo provides living and sleeping quarters with a climate-controlled environment for a family of four following a disaster.  So, what does this have to do with coffee you might ask?  Well, coffee was the motivation for it all.

The design of the Exo is based on none other than an upside down coffee cup.  According to McDaniels:

The Exo design stems from a very simple premise. Four people are able to lift it by hand and set it up in under 2 minutes without the need for any tools or heavy machinery. And the idea came from, literally, your basic coffee cup.

So just a few days after Hurricane Katrina, the idea dawned on us. So if you take a coffee cup and turn it upside down, essentially you have a 2-part design that literally snaps together. Your floor snaps onto your roof and walls, and it’s an insulated, rigid structure. They actually sleeve together, so we can actually put a tremendous amount of shelter in a very small volume for efficient transportation and shipment. The reaction: we get calls literally every day from around the world with people needing shelter now. We’re ramping up our capabilities to respond, but we need your help.

It is hard to believe that a Styrofoam cup and lid, often criticized in hot coffee litigation for not being secure enough, can form the foundation of living quarters.  Obviously, the Exo bears little resemblance to an actual coffee cup, but amazing nonetheless.

housing_example

 While this is not really an example of coffee itself saving the world, it is a reminder that a coffee cup is not merely a combination of Styrofoam and plastic.  A great deal of design and innovation goes into the way coffee is served.  And, it is all done to protect consumers, assuming the lids are appropriately attached to the cups.

School Punishes Student for Getting Bullied

If recent reports are true, the Buncombe County, North Carolina School District deserves some scrutiny for its “handling” of a recent bullying incident. The school district of Buncombe County, North Carolina, like many schools, expresses a student-oriented mission.  Buncombe County even has a set of “core values,” which include: “[l]earning environments must be safe and supportive, with equity of opportunities for personal growth” and “[u]nderstanding and respecting diversity enriches the individual and the community.”  The school leads the public to believe that its goal is a safe school and encourages students to immediately report bullying. The school district’s web page even refers readers to stopbullying.gov, which among other things encourages adults to “[a]ssure the child that bullying is not their fault.”   At first glance, this school is doing everything right – encouraging students to embrace their unique qualities and creating a safe, bully-free environment for those students to thrive.  Presumably, this would be the perfect school for Grayson Bruce, a nine year old male student who is into My Little Pony.  My little pony’s slogan is “friendship is magic,” but young boys who play with My Little Ponies are often bullied.  Grayson was not immune to this, as he was punched, pushed, called horrible names, and otherwise victimized when he brought his My Little Pony bag to school.   Per the school policy, the bullying was reported.  One would expect the school to punish the bullies or otherwise do whatever it takes for Grayson to have the opportunity to both learn and be himself.  Shockingly, the school punished Grayson instead, ordering him to stop bringing the My Little Pony bag to school, under the rationale that the My Little Pony bag was the trigger for the bullies.  

Luckily, other students have supported Grayson, and the support and media attention pressured the school to remedy the situation.  Bullying is disgusting, and it is harmful for our society.  Luckily, this author never had to experience bullying as a child or adolescent, but I understand how damaging it can be for the development of a young person.  The recent focus on bullying-prevention nationwide is a positive development, and hopefully it will reduce or eliminate the phenomenon for future generations of young people.

(Hat Tip: Alias!)

Friday Links

daredevil

Above, you’ll find the cover of Daredevil #36, published in February of this very year. Note that Matt Murdock, Daredevil’s alter ego, sits outside of his former law office with all of his possessions in the hallway. “Closed for business,” the sign on the door proclaims. Quite frankly, we never understood how Murdock could meet his billable hour requirement and moonlight as a superhero. Whatever the case, sad times for Daredevil. We’ve previously written about Daredevil and his alter ego’s career as an attorney. In fact, back in the day, we even published an interview with Mark Waid, the writer of the current Daredevil series. You can revisit that interview here. Apparently, issue #36 was the final issue of this series (although the series was instantly restarted a month later). According to the comic book website Newsarama: “In Daredevil #36, readers saw Matt Murdock put on the stand and forced to fully admit his superhero identity in a place where he can’t argue his way out of it. After the bombshell was dropped, a cascading series of events played out where Daredevil put his origin and his thoughts on secret identity and superheroics in a brand new context, while simultaneously seeing his final battle with the Sons of the Serpent.”

This ABA Journal article about New York City night court becoming a tourist attraction does not mention the old NBC sitcom “Night Court.” Hmmmm.

Advice from Lifehacker: “If you’re feeling a bit low about yourself, turn off all your social media.” (Hat Tip: The Rainmaker Institute).

Headline of the Week: “Lawsuit Ends With 100,000 Tubes of Toothpaste on the Streets of Manhattan.” From The Wall Street Journal’s Law Blog, of all places. Enjoy.

GWB attorneys Phil Reeves, Stuart Mauney, and Steve Buckingham will receive the 2014 Leadership in the Law recognition by South Carolina Lawyers Weekly.  Get this: They are three of only 30 South Carolina attorneys to receive the Leadership in Law recognition this year. Winning attorneys were nominated by peers and colleagues and selected by the publisher and staff of South Carolina Lawyers Weekly.

Have you heard that veteran litigator John Cuttino has joined our firm as a shareholder in our Columbia, South Carolina, office? Well, if you’re not following John on Twitter yet, you can do so by clicking here.

Tesla Running Into Trouble With Franchise Laws

Luxury electric car maker Tesla recently ran into legal problems.  Interestingly, this legal trouble has nothing to the with the cars themselves.  Rather, it has to do with the way that Tesla sells its cars.  Tesla has the audacity to sell its cars directly to customers and cut out the middle man; this is the kind of dangerous nonsense that won’t fly in many states.  Tesla has been effectively banned from selling cars in New Jersey, Texas, and Arizona because they are allegedly in violation of laws that require the automobiles to be sold through dealer franchise. Not surprisingly, the move has many consumers asking why these laws exist and whether they are valid.  The answer to the first question is easy – $$$ and lobbyists.  Automobile dealers have, through lobbyists, thrown around a lot of money to local politicians to ensure that protectionist laws are passed to ensure their continued viability.  Those politicians then pass laws requiring that cars can only be sold through licensed dealers under the guise of safety.  It’s akin to paying protection money to the mob.

The more interesting question is: Are these types of laws valid?  The question is not as easy to answer as it once was.  Under the doctrine known as the “rational basis review,” the Supreme Court has held that just about any law that didn’t discriminate against a protected group like minorities or women was presumed to be valid.  The judiciary was not supposed to be second-guessing legislatures on whether a law had a legitimate public purpose.  However, recently, courts have been looking at these types of laws more closely.  The Fifth and Sixth Circuits recently struck down state laws that restrict who can sell caskets.  The courts found the problems with these particular laws was that they only protected funeral directors against competition and didn’t have the sort of  health and safety justification that could overcome scrutiny.

The multi-million dollar question for Tesla is whether these automobile dealer franchise laws have the sort of safety justification necessary to survive judicial review.  Tesla’s CEO, Elon Musk, certainly doesn’t think they do.  He recently stated:

The rationale given for the regulation change that requires auto companies to sell through dealers is that it ensures “consumer protection”. If you believe this, Gov. Christie has a bridge closure he wants to sell you! Unless they are referring to the mafia version of “protection”, this is obviously untrue. As anyone who has been through the conventional auto dealer purchase process knows, consumer protection is pretty much the furthest thing from the typical car dealer’s mind.

These statements certainly ring true for for me.  It’s certainly not a fun process, and there is virtually no sense that the dealer is looking out for you.  I’d much rather buy a car directly from Honda than from a dealer.

Steak Dinner In Florida Turns Into Acid Trip

When you buy steaks at Wal-Mart, you expect Grade A quality beef.  A Florida family, however, claims the steaks they purchased weren’t exactly worthy of Gordon Ramsey’s kitchen.  According to a report from The Smoking Gun, Ronnie Morales and Jessica Rosado, Morales’ 9-month pregnant girlfriend, along with Rosado’s two children, were hospitalized after allegedly consuming LSD-laced bottom round steak purchased from a Florida Wal-Mart.  After eating dinner, Morales allegedly became violently ill.  Rosado drove him to the hospital where she, too, became ill, forcing her to be admitted to the Women’s Hospital, where physicians induced labor.  Shortly thereafter, Rosado’s children allegedly began hallucinating and fell ill.  All have now been released from the hospital.  The report is silent as to whether the family will demand a steak dinner anytime soon.

An incident of this type is obviously traumatic, especially when a pregnant woman is involved.   At this point, it is too early to tell who is to blame.  Tampa Police Chief Jane Castor has said that there was “no indication” of any involvement by Morales or Rosado.  So, if not them, then who?  A neighbor?  A friend?  Wal-Mart?  The packing house?  Could it just have been an LSD-addicted cow?  These questions are yet to be determined.

Certainly, this Florida Wal-Mart will be forced to attempt to clear its name.  Despite the police’s assertion the there was “no indication” that the victims were involved, Wal-Mart would be wise to do more investigation.  We are by no means experts in LSD, but we do find it suspicious that the effects of LSD can be so severe after the drug has been exposed to heat.  Moreover, we also find it interesting that those effects were violent illness for the adults rather than hallucinations.  Something sounds suspicious. There are obviously more questions than answers at this stage.  We don’t know who, what, where, when, or how this family ingested LSD.  But, certainly it couldn’t have been from a high quality Wal-Mart steak.

Intoxicated Man Loses Big at Casino, Wants His Money Back

Yes, folks, you read the headline correctly.  And you are probably about to say something like “Right, and the sky is blue.” Well, the sky was slightly less blue for Mark Johnston when he awoke from a bender in Vegas only to find out that his wallet was $500,000 lighter. Like many a brave soul before him, Mr. Johnston traveled to Vegas, enjoyed a hefty amount of alcohol, and subsequently lost a staggering amount of money at a casino. Of course, none of us have experienced a booze-involved cold streak at the casino, but we have all heard horror stories.

What is unusual about Mark Johnston’s situation, apart from the fact that he lost more money in one night than the average American earns in over a decade, is that Mark Johnston has filed suit to get his money back. Mr. Johnston, a self-made millionaire, alleges that he was already intoxicated when he entered the casino.  He then consumed approximately 20 drinks courtesy of the casino, and he now claims that the free alcohol caused him to “black out.”  As a result, Mr. Johnston has no memory of losing the money. It will be interesting to see what happens with this case.  Mr. Johnston apparently bases his claim, at least in part, on a law which prohibits casinos from serving visibly intoxicated patrons.  Presumably Mr. Johnston would be within the class of people the law is meant to protect, and one could definitely argue that this is the type of harm the law is meant to prevent.  However, I imagine that proving causation will be challenging.  Also, the casino will likely advance numerous affirmative defenses. If I had to bet, I would wager that this case is going to be nasty and expensive for both sides.