Friday Links

We hope you are doing well, dear readers. As you might imagine, it’s been a tough week.

We here at Abnormal Use are saddened by the destruction wrought by Hurricane Harvey in Texas. Are you looking to help the citizens of Texas? From yesterday’s E-Blast from the South Carolina Bar:

The Supreme Court of Texas has issued an order to allow out-of-state attorneys to provide legal services in Texas as part of Hurricane Harvey relief efforts. Bar members wishing to participate in these efforts must meet these requirements and complete and return the registration for temporary practice of Texas law attached to this order. The State Bar of Texas has also asked attorney volunteers to fill out this form regarding assistance they are able to provide. More information about how to assist will be provided as opportunities are organized.

If you can assist, please do.

On a lighter note, our favorite legal tweet of the week involves, of all things, the Oxford comma.

Oh, and don’t forget to listen to Vampire Weekend’s song, “Oxford Comma,” to celebrate.

As we ready ourselves for the Labor Day weekend, we wish all of you a safe and festive holiday. We will see you again next week.

Giving Out Free Swag? Remember Product Safety Still Applies

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Whether attending a convention as an exhibitor or a participant, free swag is important. In many cases, swag is the eye candy that starts that discussion or creates a lasting impression of your business. If you are an exhibitor, salesperson, or marketing professional, chances are you receive catalogs full of swag that can be stamped with your logo. In the last several years, the swag industry has upped its game with attractive offerings such as power banks and fitness watches. But there’s still plenty of classic swag. Stress balls, t-shirts and highlighters are still very popular in trade show exhibit halls.

But, dear readers, are you paying attention to how safe these free gifts are?

We here at Abnormal Use want to remind you that even when you are giving away a promotional item to employees or prospects to keep in mind the potential safety hazards. Even if it does not ultimately pose a legal impact on your business, it could negatively impact your image. The Consumer Product Safety Commission is paying closer attention to these items more than in years past. Remember who your audience is and who they come in contact with. Items with sharp edges, small parts, or components that are easily breakable are potential hazards to children.  Also keep in mind not just who the audience is, but the target market audience of the gift. For example, if the event is a trade show in the toy industry, just because the attendees are all adults will not ease the burden of ensuring that the items are child friendly. And speaking of toys, handing out items such as a Nerf football may place you in the realm of children’s product regulations. In a world where lanyards pose choking hazards and ink on t-shirts may be toxic, we cannot be too careful. As a tip, make sure that your lanyards have breakaway clasps, as this greatly reduces the possibility of choking.

Ultimately, do your due diligence when purchasing and giving away promotional items. While cheaper items may bring you more impressions per dollar, they may present lasting legal and image problems down the road. Try to use reputable promotions companies that offer safe and well-documented products. They may not be the cheapest, but they might add an extra layer of protection.

Urban Outfitters and Forever 21 Accused of Ripping Off Tupac Images

Retailer Urban Outfitters is known, in part, for its trendy t-shirts. Whether it be a catchy slogan or a retro graphic, Urban Outfitters covers your t-shirt needs. But, where exactly does it obtain the endless supply of images for all of those shirts? Well, according to a new lawsuit, at least some of those images are pilfered from certain artists.

According to a report from ConsumeristPlaintiff Danny Clinch filed a lawsuit against Urban Outfitters and fellow retailer Forever 21 (and several other entities discussed below) alleging that the retailers infringed on his copyrights by producing t-shirts featuring images of rapper Tupac Shakur. Clinch alleges that he took the photos which were featured on the cover of Rolling Stone magazine in 1993 and 1996. The photos were copyrighted in 2002. Nonetheless, Amaru/AWA Merchandising, the company in charge of licensing TuPac merchandise, entered into a license agreement with a company called Planet Productions which purported to grant Planet a license to use the copyrighted photographs. Planet then authorized an outfit known as Bioworld Merchandising to produce the t-shirts which, in turn, were sold to Urban Outfitters and Forever 21. While Urban Outfitters and Forever 21 are the “big ticket” defendants in this matter, we don’t know what, if anything, they knew about the chain of custody surrounding the Tupac photos’ copyright. Whatever the case, this is not the first time Urban Outfitters and Forever 21 have faced such allegations. As reported by Teen Vogue:

Designer Charles Smith II and Alala founder Denise Lee both recently accused Forever 21 of ripping off their designs. On top of that, people on Twitter have been accusing Forever 21 of stealing fonts from Kanye West’s Life of Pablo merchandise and ripping off Rihanna’s Fenty x Puma sandals. Just last month, Frank Ocean accused the company of plagiarizing a font from his Blonde cover. For Urban Outfitters’ part, Coachella sued Urban Outfitters, Inc. in March over its sister company Free People’s Coachella collection, which it says was sold without the festival’s permission.

Again, who knows what, if anything, Urban Outfitters and Forever 21 knew about any of these alleged copyright infringements? However, at this point, Urban Outfitters may want to just start designing t-shirts itself just to be safe.

The Art of “Litigation” War (Part I)

During a recent bout of insomnia, I found myself reading Sun Tzu’s The Art of War. I have read the ancient Chinese military treatise several times over the years but never during my time as a practicing attorney. As I read the text, now through the eyes of a litigator, I realized that all attorneys could learn from Sun Tzu’s wisdom. Aside from his guidance on the proper usage of spies, attacks by fire, and whatnot, Sun Tzu’s military stratagem is a perfect litigation guide book. While a quick Google search reveals that I was not the first to make this observation, we here at Abnormal Use now offer our perspective on the issue (in a multi-part series, of course).

As an initial matter, we must caution that we by no means view litigation as “war” in the traditional sense. In our experience, litigation is most often handled with the utmost civility between attorneys fairly representing their clients. While litigation is adversarial, we do not suggest it should be hostile. Rather, we contend that some of Sun Tzu’s strategies can aid litigators in effective advocacy.

With this backdrop, we begin our series by analyzing the following tactic from “Laying Plans,” the first chapter of the book:

[W]hen able to attack, we must seem unable; when using our forces, we must seem inactive; when we are near, we must make the enemy believe we are far away; when far away, we must make him believe we are near.

Much of “Laying Plans” deals with deception in warfare. While we condemn unethical deceptions in litigation, Sun Tzu’s general premise is well-taken. When you are weak, you must appear strong. When you are strong, you must appear weak. When we enter a courtroom and stand before a judge or a jury, we must speak with confidence. Regardless of the challenges we might face in arguing our positions, we must speak authoritatively. If we do not act and speak like we should prevail, then we should not expect to do so.

A former professor tells a story from his early days of practice. He was to try a criminal case in front of an unfamiliar judge. He received a tip from a local practitioner that the judge was a real stickler for the rules of evidence and, when the judge would hear something objectionable, he would look up from his notes and tilt his head slightly to the right. With this tip in mind, the professor made a point to observe the judge for the duration of the trial. Every time the judge tilted his head, the professor stood and objected.  Without pause, the judge sustained every objection. Even though the professor’s client was ultimately convicted, the judge spread the word of a young attorney who knew the rules of evidence better than any other lawyer who had appeared before him. As a result, the professor quickly became known among the bar as an evidence expert. Little did they know that he had earned a “C” in his evidence class at Duke Law School. They also never suspected that if the judge had asked him to specify the grounds for his objections, he would have fainted on the spot. Nonetheless, he owed his newfound stardom to his ability to speak with authority.

Conversely, there is also merit, as Sun Tzu suggests, to appearing “weak” when you are strong. By “weak,” we do not necessarily mean acting as if you do not know the law. Rather, the appearance of “weakness” can be much more subtle and nuanced. For example, when we have what we believe to be a strong case, it is natural to state that position up front to opposing counsel. While there is a time and place for that, there is much to be said by holding back. As good as your case may be, it is likely not as good as you suspect. There are no “perfect” cases.  As such, rather than championing your position and showing all your cards, be more reserved. Let opposing counsel share his or her side first. It will help you to better assess the holes in you case (which are undoubtedly there).

When in law school, I participated in a civil practice program which allowed 3L students to gain experience by representing indigent parties under the supervision of a licensed attorney. In handling a landlord-tenant matter, I called opposing counsel, an experienced attorney 30 years my senior. After a pleasant conversation, I hung up the phone and saw a scowl from my supervisor. She informed me that I had put myself in a bad position – not because of the substance of the conversation – but because I had said, “Yes, sir” (as any good Southerner would do).  As such, she believed that I had placed myself in an inferior position and would remain that way throughout the litigation. The case ultimately resolved favorably for my client. While I agree that we should show strength when we are weak, I did not agree with my supervisor at the time, nor do I agree with her now. Call it “weakness” or “strength,” but not enough can be said about simply being friendly to opposing counsel.  Regardless of how good (or bad) my case may be, a little bit of kindness goes a long way in litigation. Resolving disputes is never easy, but it is much easier when you have friends on the other side.

Sun Tzu would have said the same, right?

Note:  An online translation of The Art of War can be accessed here.

Friday Links

Did everyone survive this past Monday’s solar eclipse? As we mentioned, three of our four offices fell within the fabled path of totality!

Headline: “Man says selfie proves McDonald’s coffee burned him.”

If you use Twitter, you might be aware of #PracticeTuesday, a hashtag dedicated to legal and practice tips. Well, our editor, Jim Dedman, enjoys the discussion so much that he crated his own #PracticeTuesday playlist, which features such gems as George Harrison’s “Sue Me, Sue You Blues,” INXS’ “Mediate,” and “The Trial of the Century” by the French Kicks. If you enjoy #PracticeTuesday or Spotify, we recommend that you investigate further. We’ve embedded the playlist below for easy access.

 

It’s been a while since we’ve selected a favorite tweet of the week. In fact, it’s been some time since we’ve posted an episode of Friday Links. That said, Our favorite legal tweet of the week comes from GWB’s own Stuart Mauney who celebrated his 30th anniversary with Gallivan, White, & Boyd, P.A. yesterday. Congratulations, Stuart!

Abnormal Use and The Eclipse

As everyone on the continent knows, today is the day of the total solar eclipse. As you may recall, we here at Abnormal Use and Gallivan, White, & Boyd, P.A. maintain four offices in the Carolinas, three of which will be in the path of totality of the eclipse. That, of course, means that our colleagues in our Greenville, Columbia, and Charleston, South Carolina offices will see the full and total eclipse (rather than the partial eclipse those outside the fateful path will observe). As you can imagine, we’re pretty excited, and we’ve made certain to obtain our official solar eclipse glasses to protect our eyes from the great power of the sun. No kidding, dear readers, don’t look at the sun today without the appropriate protective gear.

We understand that flocks of tourists and eclipse seekers will be in the Carolinas. We’re all very excited! But in light of the crowds and the sun, be festive, dear readers, and be safe.

By the way, did you see that Bonnie Tyler will sing “Total Eclipse of the Heart” during the total solar eclipse? How about that?

Dogs: Man’s Best Friend Or Unreasonably Dangerous Product?

According to a report from the Clinton Herald, a lawsuit has been filed against the Clinton (Iowa) Humane Society after a dog adopted from the agency bit a 15-month old child. The dog, which was possibly a pitbull-mix, was received by the Iowa Humane Society after it was saved from being euthanized at a Louisiana shelter.  The suit asserts product liability, negligence and breach of warranty claims against the Humane Society as well as a strict liability claims against the adopted dog parents, Kris and Ashley Greene.  The theory against the Humane Society is premised on the notion that the agency failed to warn the Greene’s of the risks of transitioning a dog from a shelter to a home and of a dog’s potential dangerous propensities. The plaintiff claims that the lack of instructions or warnings renders the dog not reasonably safe.

We here at Abnormal Use find this suit interesting to say the least. While dogs are technically property in the eyes of the law (in most jurisdictions), treating them as products for product liability purposes creates some significant problems. Most notably, unlike traditional products, dogs are living, breathing creatures capable of independent thinking and actions. When a product leaves the manufacturer, we know how it is supposed to “act.” When it does not act as it was intended, it is typically because of some defect (either in its manufacturing or its design). That’s product liability. On the other hand, dogs are all different.  No two dogs are the same either due to nature, nurture, or some combination of the two. We can never know for sure just how a dog is going to act in any situation. So how do we regulate whether a dog acted as intended?

To be fair, the case here is premised on a failure to warn, not that the dog was “defective” per se. We can certainly appreciate the need to disclose if a dog is known to have a checkered past or is otherwise prone to violence. But wouldn’t a simple negligence theory do the trick to protect against these types of harms?

No need to bring product liability principles into it.

Friday Links

As you might know, we here at Abnormal Use occasionally plan CLE programs for organizations of which we are members. Our editor, Jim Dedman, serves as the vice-chair of the Mecklenburg County Bar’s Civil Litigation Section. As such, he’s planned a program which might interest. No, no, it’s not another one of those programs about how to use the Internet to find incriminating impeachment materials. Rather, it’s about the practical aspects of subpoenaing social media companies and authenticating digital evidence. This is real world stuff you need to know for discovery and trial. The program features Keith Lee, the author of the Associate’s Mind blog and the “Social Media Subpoena Guide,” and Tim Flowers of the Computer Crime & Intellectual Property Section of the United States Department of Justice who will discuss authentication of digital evidence. It should be a doozy of an event and offer some real practical advice we don’t usually see in these types of seminars. If you’re in Charlotte on Thursday, April 20, join them! For more information on the program, click here.

Our tweet of the week comes from one of our firm’s partners who offers his views on the perils of a multi-jurisdictional practice.

Costco v. Titleist: The Golf Ball War You Wouldn’t Expect

Last year, Costco began selling golf balls. As the largest American membership-only warehouse club, Costco’s introduction of a new product such as a piece of sporting equipment would not ordinarily be noteworthy or otherwise unusual. Except that the balls became a bit of a cult phenomenon and flew off the shelves and the company completely sold out of the product by January. The golf balls are now selling for insane amount on Ebay. So what gives? The Costco balls are actually manufactured by South Korea’s Nassau Golf – the same company that manufactures TaylorMade golf balls. Nassau apparently unloaded some of its balls to Costco. Costco then branded the balls with a Kirkland Signature logo and sold them for $29.99 per TWO dozen. After golfers realized the balls’ performance was on par with some higher end balls, word began to spread and the rest is history.

While golfers may have been delighted with Costco’s venture into the golf ball industry, some golf ball manufacturers were not. According to a report from seattlepi.com, Acushnet, maker of Titleist golf balls, sent a cease and desist letter Costco earlier this year, alleging that the Costco balls infringed upon eleven of the company’s patents. In addition, Acushnet alleged that Costco had engaged in false advertising on account of the Kirkland Signature guarantee that all Kirkland products “will meet or exceed the quality standards of leading national brands.”

In response, Costco has filed a declaratory judgment action against Acushnet in the U.S. District Court for the Western District of Washington. As a preemptive strike, Costco seeks a judicial declaration that Costco was not violating Acushnet’s patents and has not engaged in false advertising. According to Costco, while others (including reviewers and golf professionals) have compared the Costco balls to the higher-end Titleist balls, Costco has never done so (at least not publicly).

In a written statement published by Golf World, Costco stated:

We have asked the Court to protect our right to continue to sell our Kirkland Signature golf ball against challenges made by Acushnet under patent and advertising laws. . . .The success of the ball with our members and the favorable comments it has received from reputable reviewers apparently have caused Acushnet to believe that our ball directly competes with the Titleist Pro V1 and Pro V1x balls. … Our golf ball will go back on sale in early April, but supplies are limited.

We here at Abnormal Use have never played with the Costco golf balls and, to be honest, with our golf games there would be no discernible differences found with an equipment change. Assuming that the balls actually live up to the hype, we understand why Acushnet may be upset with the competition. If Acushnet is really concerned about patents, however, we would think its real beef would be with Nassau who made the balls in the first place. But our best guess is that this matter is not really about patents at all. The real issue is that Acushnet does not want someone to undercut its premium price point. It is for this reason Acushnet has filed suit against a number of smaller companies who produce economy balls in the past. At least on the surface, it does not appear that Acushnet is concerned with companies like Nassau (a/k/a Taylor Made) who sell golf balls which compete at the same premium price point. Acushnet knows it has that marketplace cornered. But let someone sell a competing product for a percentage of the price, now Acushnet has a problem.

We are curious to see how this one plays out. We are hoping for quick resolution by April, so we can pick up a dozen of those Costco balls for the summer golf season.

Friday Links

John Cuttino, a shareholder from our Columbia, South Carolina office, was recently featured in Wofford Today.

If you like, you can read Texans for Lawsuit Reform Foundation’s new report, “The Story of Asbestos Litigation in Texas & Its National Consequences.”

Remember on “L.A. Law” when Rosalind Shays stepped into the empty elevator shaft, sending her to her death? That episode aired 26 years ago in March of 1991. By the way, with all of these sequels and reboots, how come the networks have not revisited “L.A. Law”? The series ended in May of 1994, and despite the fact that the cast reunited briefly for a television movie in 2002, no one meaningfully discusses this show these days. We here at Abnormal Use were definitely fans of the show back in the day (although we never purchased – or even knew about – “L.A. Law: The Computer Game” – which you can read about here).

Did you catch GWB’s own Lindsay Joyner on television in South Carolina this week? If not, let us direct your attention to our tweet of the week!