At The Corner Of Literature And Lawsuits: The Harper Lee Litigation

Back in 2010, our fearless leader Mills Gallivan offered his thoughts about To Kill a Mockingbird in a post entitled “Bluejays and Mockingbirds.”  Today, we revisit To Kill a Mockingbird, or rather, provide an update on Harper Lee, the author of one of the most brilliant legal novels ever written (in our own humble opinion).

As reported by CNN, Lee is suing the Monroe County Heritage Museum for trademark infringement.  As quoted by CNN, the lawsuit makes the following claims:

“The museum seeks to profit from the unauthorized use of the protected names and trademarks of ‘Harper Lee’ and ‘To Kill a Mockingbird.’ It is a substantial business that generated over $500,000 in revenue for 2011, the last year for which figures are available,” said the lawsuit filed last week. “But its actual work does not touch upon history. Rather, its primary mission is to trade upon the fictional story, settings and characters that Harper Lee created.”

For its part, the museum isn’t admitting any infringement.  USA Today quoted the museum’s attorney as follows:

The museum’s Birmingham attorney said the tourist attraction is within its rights to educate the public and preserve the area’s history. “It’s sad that Harper Lee’s handlers have seen fit to attack the nonprofit museum in her hometown that has been honoring her and the town’s rich history associated with that legacy for over 20 years,” [Matt] Goforth said.

Goforth further stated that “Every single statement in the lawsuit is either false, meritless, or both.”  Some of the facts surrounding the case, however, appear to suggest otherwise.  First, the website for the museum is tokillamockingbird.com.  The gift shop is called “The Bird’s Nest” and contains lots of “Mockingbird” memorabilia, according to news reports.

The case is pending in the the Southern District of Alabama (C.A. No. 1:13-cv-490), where it was filed on October 10, 2013.  Lee seeks a permanent injunction against the museum.  On November 5, 2013, the museum filed a motion to dismiss for failure to state a claim.  As of the date of this post, the court had set out a briefing schedule for that motion, and states that it will take up the motion on November 26. What will Lee have to prove?  In order to succeed on the merits of a trademark infringement claim, a plaintiff must show that the defendant used the mark in commerce without her consent and  that the unauthorized use was likely to deceive, cause confusion, or result in mistake.  Davidoff & CIE, S.A. v. PLD Int’l Corp., 263 F.3d 1297, 1300-01 (11th Cir. 2001).  Seven factors are considered as to the likelihood of confusion: (1) type of mark; (2) similarity of mark; (3) similarity of the products the marks represent; (4) similarity of the parties’ retail outlets and customers; (5) similarity of advertising media; (6) defendant’s intent; and (7) actual confusion. Frehling Enters. v. Int’l Select Group, Inc., 192 F.3d 1330, 1335 (11th Cir.1999). Of these, the type of mark and the evidence of actual confusion are the most important. Aronowitz v. Health-Chem Corp., 513 F.3d 1229, 1239 (11th Cir. 2008). Federal courts may grant permanent injunctions where infringement is found to have occurred in order to prevent further infringing use of a mark, and such injunctions should be designed to keep the former infringers a safe distance away from the protected mark. Id. at 1242.

This lawsuit is getting a lot of attention from the media world, and we are also interested in the outcome.  We’ll follow along with everyone else, and let you know of any developments.

Guns and Products Liability in Alabama

Maybe I’m naive.  Maybe I just haven’t felt the need to carry a firearm for personal protection in my everyday life.  Maybe I’m just not from Alabama.  But this case confuses me.

Out of the Northern District of Alabama comes the case of Avery v. Cobra Enterprises of Utah, Inc., C.A. No. 2:11-cv-02870, 2013 WL 2532320 (N.D. Ala. May 23, 2013).  The facts are simple.  James Avery was given a Cobra Model C32 derringer by his son.  Beginning in 2004, Mr. Avery began carrying the derringer every day for protection.  As the Court notes, Avery “regularly carried it without the safety engaged.” Here’s a picture of the gun at issue:

Now, you can guess where this is going.  One day, Avery returned home from running errands.  He got out of his car carrying not only the derringer (safety off), but magazines (the reading kind), wallet, keys, and soda bottles.  He got as far as the trashcan, but when he tried to open it, he dropped the gun.  The gun hit the ground and discharged, shooting Avery in the abdomen.

Avery sued Cobra Enterprises, the manufacturer of the derringer, asserting several theories of products liability; however, the only claim that survived to the summary judgment stage was a claim for breach of implied warranty of merchantability.  Under Alabama law, one of the requirements is that a product must be “fit for the ordinary purposes for which such goods are used.”

Avery’s lawyers did something clever with this claim after Cobra filed a motion for summary judgment.  They claimed that “ordinary purposes” include not only those uses intended by the manufacturer or seller, but those which are reasonably foreseeable.  Their argument is that the manufacturer of a firearm should have reasonably anticipated that a carrier of the derringer might need to fire the gun so quickly, that “a pause to disengage the two safety features [of the derringer] would destroy the defensive advantage he was buying.”

The Court basically called this out as the “wild west” argument, but unbelievably, denied Cobra’s motion for summary judgment, in part on this basis:

This is analogous to the reasoning of hair trigger artists of the Old West.  It may be an uphill battle for the Averys to convince a jury that there exists such a reasonable expectation, either by seller or by user, but on the current state of the evidence, the Averys will be afforded the opportunity to put their theory to the jury test.

Unbelievable.  One other point should be made about Avery, lest you think that he, like me, was simply naive about the way guns work and how they can be safely handled on an everyday basis:

Avery had experience with firearms throughout his life. He went hunting for the first time at age 6, used a pistol around age 8, handled a semi-automatic handgun around age 18, and has carried a pistol permit since the age of 18. He also served in the Navy where he received formal firearm training. He had experience both with firearms that have manual safeties and firearms that have no safeties at all. He had no experience with a derringer until he acquired the one at issue. Upon receiving any new firearm, he always examined it himself to figure out how it works, but he does not typically read the instruction manual right away. He said he “probably … looked over” the derringer’s manual at some point while he owned it. Avery July 18, 2012 depo at 53. He testified that he knew a firearm could discharge if mishandled, but he did not know that a firearm could be expected to discharge if dropped while fully loaded with the safety off.
I’ll withhold further commentary here, except to say that I hope that the jury gets a well drafted contributory negligence charge from the Court.  Sharpen your pencils, counselors.

Napalm in your backyard?

Napalm is a gel-like incendiary agent that has been used in warfare weapons for decades.  What makes napalm different from any other firebomb type incendiary agent such as gasoline?   The gel clings to what ever it touches, creating a large burning area around the target, thereby decreasing the need for accuracy.  Doesn’t this sound like a perfectly safe type of fuel to use in adding ambience to your backyard?  Well, it wasn’t napalm, but an Alabama man has sued, alleging he suffered severe burns when his girlfriend poured gel fuel into a fire pot which ignited and hit his neck, chest, and face.

In his lawsuit, the plaintiff claims the fuel gel and fuel pot were defective, unreasonably dangerous, and carried “an extremely high risk of combustion” with potential for serious injury.  According to the complaint, in May of 2011, the plaintiff was using a fire pot “as instructed” along with several family members and his girlfriend.  When his girlfriend saw the flame had been extinguished, she added more fuel gel, which caused a “flash fire explosion” that “bathed” the plaintiff with the fiery substance.  His family attempted to douse the flames with water, but the plaintiff still suffered severe burns and had to be airlifted to the University of Alabama Birmingham burn center.

In September of 2011, the U.S. Consumer Product Safety Commission announced a voluntary recall of gel fuels by several manufacturers, including Bird Brain, Inc., which was named in this lawsuit.  The real problem with the gel fuels is not that it can combust when poured onto a lit flame.  That could happen with any incendiary agent.  Instead, the problem lies in the fact that the flame can be difficult to see and vapors from inside the gel container can be ignited by the flame. This can, in turn, cause an explosion, and the effects are compounded by the fact that the burning gel sticks to the skin and can be difficult to extinguish with water.

Frankly, this suit may not bode well for the defendants.  Then again, it’s certainly early in the game, and we’ve only got one side of the story.  If this one goes to trial, we’d expect there will be a bit quibbling over whether the term “napalm like substance” is objectionable and whether this video from the Consumer Product Safety Commission is admissible.