Hall and Oates Haulin’ Granola Company to Court

They say imitation is the best form of flattery, but rock legends Daryl Hall and John Oates may disagree. Here’s the long and short of it: Brooklyn-based granola company Early Bird Foods named a line of granola products “Haulin’ Oats.” Hall and Oates’ response: “No Can Do.” Hall and Oates were none too pleased, as reported by Rolling Stone magazine. According to the complaint filed in New York, not only does the rock duo assert that the Early Bird is attempting to “trade off of the fame and notoriety associated with the artists,” the duo also contends that its company, Whole Oats Enterprises, owns a federal trademark registration for the mark “Haulin’ Oats.” The band contends Early Bird’s use of the mark will confuse consumers and lead them to believe Early Bird’s products are approved by the band.

Hall and Oates certainly doesn’t think “It’s A Laugh[ing],” matter, asserting both common law and statutory trademark causes of action. The duo is seeking a permanent injunction against Early Bird preventing the company from using “Haulin’ Oates” or similar marks, compensatory damages, and all profits, gains and advantages derived by Early Bird out of its “Haulin’ Oates” product line, among other relief.

One final note on this new lawsuit. It seems Early Bird and its founder Nekisia Davis are going to ride the publicity wave for the time being, lawsuit be damned. According to NBC News, Early Bird tweeted about the suit and offered a discount on Haulin’ Oats for weekend purchases. The coupon code? SAYITISNTSO. Pretty cheeky response if you ask us here at Abnormal Use. How this lawsuit will resolve is, of course, unknown. However, in the meantime, Davis may find herself as a “Rich Girl,” haulin’ her products to countries near and far.

(Hat Tip: Lowering The Bar).

Rick Springfield (And His Rear) Not Liable In New York Personal Injury Suit

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At long last, we have some resolution to the now infamous Rick Springfield butt-injury case.  Last week, a jury returned a verdict in favor of Springfield, finding that his hindquarters were not responsible for the injuries allegedly sustained by 45-year old Vicki Colcagno way, way back in 2004.  Colcagno alleged that during a concert at the New York State fair, Springfield was jostled by the audience and lost his balance, causing his rear to strike her.  The butt-hit allegedly knocked Colcagno to the ground where she struck her head, causing a traumatic brain injury.  Exhibit A (pictured above) of Colcagno’s case was a picture of Springfield’s rear end taken just moments before the alleged incident.  After all the evidence was heard, the jury took 61 minutes to render a defense verdict.

The location of the allegedly dangerous body part aside, we here at Abnormal Use are not surprised by the jury verdict.  Colcagno had no witnesses from the concert to corroborate her story.  She had no video evidence (aside from the aforementioned pre-accident butt shot).  After the alleged incident, she remained at the concert and continued taking fan photos of Springfield.  She also attended a Cyndi Lauper concert a week after the Springfield incident. (Lauper kept her body parts on stage).  Moreover, the jury probably didn’t like hearing how Colcagno asked Springfield for concert tickets during a 2010 deposition.

In any event, we applaud Springfield and his legal team for following this case through to trial.  Settlement would have undoubtedly been the path of least resistance.  The life of an 80’s pop star is certainly busy and keeping up with litigation was probably not high on his list.  But, rather than settle, Springfield boldly stuck to his position that he did nothing wrong. Now, if Springfield can channel the momentum of this trial victory into a new “Jessie’s Girl,” we can all be winners.

The Coming Ebola Litigation?

Ever since the United States experienced its first Ebola death, uncertainty looms over the proper way to contain the virus and the appropriate measures that governments should take to prevent an outbreak.  Three states, New Jersey, New York and Illinois, have imposed quarantines on anyone arriving with a “high risk” of having contracted Ebola in Sierra Leone, Liberia and Guinea.  Kaci Hickox, a nurse who volunteered to help with Ebola patients in Sierra Leone, was quarantined upon her return to the U.S.  According to Hickox, she exhibited no symptoms of the disease and found herself to be otherwise completely healthy.  The White House has expressed concerns over the quarantine policies, arguing that the quarantine policies are not grounded in science and reiterating that Ebola is difficult to catch.

We may have the opportunity to see this saga play out in the courtroom, as Hickox has indicated that she plans to file suit on the basis that the quarantine violated her Constitutional rights.  According to Hickox’s lawyer: “She’s fine. She’s not sick . . . . She went and did a magnanimous thing and deserves to be treated with respect and dignity, not put in isolation because some political leaders decided it looks good to do that.” It will be interesting to see how this plays out if Hickox does file suit.  Regardless of the outcome, the legal industry should be prepared to deal with Ebola-related issues.  International law firm Reed Smith, has announced the formation of a Global Ebola Task Force, and more firms will likely follow suit.

On a related note, an interesting article examining medical malpractice-based Ebola lawsuits against the backdrop of Texas “tort reform” litigation is located here.

Denny’s Settles Hot Coffee Case Following Child’s Injury

According to a report from The Buffalo News, G.B. Restaurants, the parent company of Denny’s, recently paid $500,000 to settle yet another hot coffee-related lawsuit.  While this settlement is not so far removed from the 20th anniversary of the infamous Stella Liebeck-McDonald’s hot coffee case, the underlying theory of liability couldn’t be more different.  In this case, Jose Adams and Sally Irizarry of Puerto Rico sued the restaurant chain after their 14-month old daughter was burned by hot coffee in a Buffalo, New York Denny’s.  The daughter sustained those burns after she grabbed a cup of coffee off of the table and spilled it on herself.  The crux of the lawsuit is whether the waitress was negligent in placing the coffee within arm’s reach of the child – not that the coffee was unreasonably dangerous as alleged in the Liebeck suit.

With every new hot coffee case that hits the news, the media can’t help itself but to make comparisons to the now 20-year old Liebeck case. (We tend to do a bit of the same ourselves, but that’s why you love this blog, right?) In fact, The Buffalo News began and ended its report with references to the Liebeck case even though the only link those cases share is the presence of hot coffee.  Without the Liebeck case coming before it, we doubt this case would have garnered its own headline (or be the source of blog fodder).

Liebeck comparisons aside, this case has its own liability issues.  We do not know much about the facts of the case, but we have to wonder how long the cup sat on the table prior to the child pulling it off.  As former patrons of Denny’s, we know that table space can be limited depending on the size of the food orders.  Also, as parents, we certainly can empathize with the perils of having young children in restaurants.  However, we are also cognizant of a child’s reaching hands and plan accordingly.  Should a waitress be responsible for placing the coffee too near the child?  Maybe, but these other factors should also be considered when analyzing how the coffee got onto the child in the first place. We’ll keep you posted on this case if circumstances warrant.

Tech Companies To Litigate Unpaid Royalties

Two kings of the tech world will reportedly duke it out over allegedly unpaid royalties.  In the suit, filed in federal court in New York, Microsoft alleges that it entered into a patent-sharing agreement in 2011 by which Samsung was to pay Microsoft a royalty for every Android phone it sells.  This was purportedly part of an effort to “work together to develop and market Windows Phone, Microsoft’s mobile software.” Microsoft alleges that Samsung failed to make a royalty payment on time and refused to pay interest on the late payment.  The original “heavily redacted complaint” alleges that Samsung has attempted to use Microsoft’s acquisition of Nokia’s phone business as an excuse for not complying with the patent-sharing agreement. Microsoft has since filed an amended complaint, and Samsung has responded with a motion to compel arbitration. The case is Microsoft Corp. v. Samsung Electronics Co., 14-cv-06039, (D.N.Y. 2014).

No Wings for Red Bull? Company Settles False Advertising Suit In New York

According to a report from BevNet, energy drink manufacturer Red Bull has settled a proposed class action lawsuit filed against it for $13 million.  The suit, filed last year by Benjamin Careathers in the U.S. District Court for the Southern District of New York, alleged that Red Bull’s signature “It gives you wings” slogan is false and misleads customers about the drink’s superiority.  While the company’s advertisements may in fact show Red Bull drinkers growing wings, the plaintiff alleges that Red Bull offers no increased performance, concentration, or reaction speed.  As you might expect, Red Bull has denied any liability.

We assume – and hope – that the plaintiff didn’t actually believe Red Bull would give him actual wings.  (We doubt New York recognizes the “negligent failure to bestow wings” cause of action.). In fact, we seriously doubt that Red Bull would have paid out millions on such claims even if it was concerned about litigation costs. As such, we will refrain, mostly, from commenting on the absurdity of such a lawsuit and focus on the more plausible allegations.

This lawsuit was never about wings, but rather, it centered upon whether Red Bull actually delivers that energy fix we all crave.  After all, that energy boost is why people spend $3 on an 8-ounce drink in the first place, right?  Or, $2 for a cup of Starbucks coffee, for that matter.  The suit, however, alleges that Red Bull’s primary active ingredient (caffeine) is the same as that of coffee and, thus, it is not worthy of the premium price.  Maybe so, but the suit fails to take into account the cognitive effects that come along with drinking an “energy drink.”  Even if it offers a mere placebo effect, the energy drink didn’t become a multi-billion dollar industry without repeat customers.

The truth is that the energy drink is not some new phenomenon.  For centuries, people have been looking for ways to give themselves an extra burst of energy.  Coffee has been, and continues to be, the drink of choice for many across the globe.  However, in the 1960’s, Japanese manufacturer Taisho upped the ante when it released Lipovitan D – an energizing tonic sold in mini-bottles.  Thereafter, other beverage companies joined in the game.  Pop culture legend Jolt Cola was once marketed to the masses as having “all the sugar and twice the caffeine.”  Those were the days. Even the soft drink giants, Coca-Cola and Pepsi, have tried their hand at distributing coffee replacements over the years.  Today, the game has evolved into the billion dollar “energy drink” industry featuring companies like Red Bull and Monster.

Our guess is that this lawsuit will have little, if any, impact on the energy drink industry.  For those angry about Red Bull’s alleged false advertising, Red Bull has placed $6.5 million of the $13 million settlement into a fund for consumers.  If you have purchased a Red Bull in the last 10 years, you can go here for a $10 refund or two free Red Bull products.   No word on whether the free products give you wings.

The Beastie Boys Smack Down Monster Beverage

The Beastie Boys are back in the news, but it’s not for the band’s music.  Rather, they recently obtained a $1.7 million verdict in a New York copyright infringement and false endorsement lawsuit against Monster Beverage (the makers of Monster Energy drinks) over the company’s use of the musical trio’s music and image in a promotional video. The lawsuit stemmed from the energy drink maker’s use of the Beastie Boys’ likenesses and five songs as part of a “megamix” in a snowboarding video titled “Ruckus in the Rockies.”  The video was posted on a promotional website back in 2012.  According to Monster, the whole thing was just a big misunderstanding. Apparently, an employee “inadvertently” believed Monster had been given rights to use the music.  Monster only contested damages at trial. Nevertheless, the jury came back with a “monster” judgment.

As you might suspect, Monster was not too happy with amount of the award.  The company had contended that the damages only amounted to $125,000.  Admittedly, the award does seem a little large, but it is not outrageous. “Syncing,” which is the industry term for reusing a song for commercial purposes, generates approximately $322 million per year for the music industry.

This isn’t the only time the Beastie Boys have had to “fight for their rights” this year.  In March, the group settled with a small toy company over its use of the song “Girls” in a video that went ultimately viral.

Rabid Dogs and Expensive Coffee Allegedly Have 2,000 Decillion Things In Common

A Manhattan man, Anton Prisima, has reportedly filed suit against New York City, Hoboken University, LaGuardia Airport, the MTA, and “thousands more people,” including “Latina Dog Owner” and “Kmart Store 7749.”  Apparently, the nature of the lawsuit is just the standard dog bite/coffee overcharge case, or as categorized by Justia, “other civil rights.”  Mr. Prisima seeks $2,000 decillion in monetary damages.

Mr. Purisima “claims that his middle finger was bitten off by a ‘rabies-infected’ dog on a city bus, then a ‘Chinese couple’ took photos of him as he was being treated.”  Separate and apart from those allegations, Mr. Prisima has joined several defendants in the suit based on the fact that “he’s routinely overcharged for coffee at LaGuardia Airport.”  We assume that this is a permissive joinder situation.  If not, Mr. Purisima may have a Palsgraf issue.  In any event, as a result of these wrongs,  Mr. Purisima seeks the modest amount of money mentioned above, in additional to “additional damages that ‘cannot be repaired by money” and are ‘therefore priceless.'”

Good thing Mr. Purisima cast a wide net to bring in as many deep pockets as possible, considering the fact that it is not possible to raise the amount of money he seeks even if the defendants are somehow able to sell the Earth and everything on it for scrap.

(Hat tip: Lowering the Bar).

Baidu Scores Dismissal of Free Speech Lawsuit

According to The New York Times, Baidua, a popular Chinese search engine, recently scored a simultaneous victory for both censorship of speech and freedom of speech.  A federal district court in New York recently dismissed a lawsuit that sought to punish Baidu for censorship that limits certain pro-democracy search results.  In dismissing the lawsuit, the judge ruled that Baidu itself maintains a First Amendment right to censor pro-democracy webpages from from its own search results. Baidu is the biggest search engine in China with more than 50 percent of the  market share.  However, the Chinese company is required to comply with the nation’s strict regulations over Internet content. As you may recall, in 2010,  Google decided to shutdown its search engine operations in China following ongoing disputes with the nation’s censorship rules. This lawsuit was filed in 2011 and claimed that Baidu was violating United States laws on free speech because its search results had been censoring pro-democracy works for those accessing the site from New York.  The lawsuit sought a mere $16 million in damages for the purported free speech violations.  However, the district court ultimately ruled against the plaintiff and held that requiring Baidu to include pro-democracy webpages in its search results would actually be a violation of the First Amendment Funny how that works, eh? The court compared Baidu’s filtering of search results to a newspaper’s right to exercise “editorial control” over the contents that it publishes. Baidu has simply created a search engine producing results that favor certain types of political speech. The court’s order states that “[t]he First Amendment protects Baidu’s right to advocate for systems of government other than democracy . . . just as surely as it protects Plaintiffs’ rights to advocate for democracy.” 

9/11 Scandal Surfaces, Mocks Legitimate Claims

In the age of social media, personal injury plaintiffs must be careful what they publish on the Internet. Settlement demands will take a hit once photos of a backyard tackle football game surface on an allegedly disabled plaintiff’s Facebook or Instagram account. We live in an age of transparency and the truth has a tendency to show its head. As such, we here at Abnormal Use weren’t surprised when we heard about the alleged 9/11 injury scam.

According to the New York Post, 80 NYPD and FDNY retirees have been arrested for an alleged Social Security scam whereby they lied about being at Ground Zero and suffering emotional trauma. The report notes:

Many of them claimed they couldn’t sleep, do simple arithmetic or even leave their own home — but investigators found that they’d been piloting helicopters, riding Jet Skis, teaching karate, deep-sea fishing and even running half-marathons.

Many of the individuals claimed to be so emotionally traumatized that they couldn’t use a computer, drive a car, or fly in a plane. Facebook, Twitter, and YouTube – along with car rental and airline receipts – said otherwise.

Obviously, at this stage the contents of the Post report are mere allegations. If true, however, the actions are disturbing, but not surprising. We were not at Ground Zero on that fateful day, but we can only imagine the emotional turmoil faced by those who were. We have no doubt that many of those brave individuals who responded to the scene face legitimate emotional trauma. If the allegations of this report are accurate, then these 80 persons should feel ashamed.

The fact that these individuals may have blatantly published the fabrication on social media significantly worsens the situation. We would like to think that if we lied about a significant injury for financial gain, we would be too scared to show our faces in public for fear of blowing our cover. But, we suppose once you initially get away with a scam of this magnitude, a feeling of invincibility must seek in. As is the case with personal injury actions, when someone is legitimately harmed due to the acts of others, then they deserve to be made whole. Unfortunately, a small percentage of people attempt to abuse the system, casting a shadow on legitimate claims.