Engagement Rings: Conditional Gift or …?

For many of us, an engagement ring is one of the first major purchases of our lives.    In 2011, the average engagement ring costs $5,392.  The common norm suggests spending three months salary on a ring.  Ouch.  The price is small when compared to the benefit of sharing your life with another, we suppose.  But what happens to the ring if the marriage ends in divorce?  Or, even worse, if the wedding never takes place?  The ring-purchaser can certainly think of a few other bills to pay with three months salary.

Recently, in Campbell v. Robinson, No. 4969 (S.C. Ct. App. May 9, 2011), the South Carolina Court of Appeals offered its thoughts on the age old former-relationship property dispute.  After their engagement was cancelled, Campbell sued his ex-fiance, Robinson, seeking a declaration that he owned an engagement ring he presented to her during the proposal.  In addition, he sought restitution for the benefit Robinson received while possessing the ring.  Robinson counterclaimed for breach of the promise to marry and sought recovery of her prenuptial expenditures.  We suspect there may have been some awkward depositions during this case. The trial court charged the jury that Campbell would receive the ring if Robinson was at-fault for ending the engagement and vice versa.  The jury found for Campbell on Robinson’s breach of the promise to marry claim.  However, the jury determined that Campbell was at-fault for ending the engagement and, thus, was not entitled to recover the ring.  On appeal, the Court of Appeals held that fault has no bearing in determining ownership of an engagement ring.  Rather, an engagement ring is conditioned on the marriage taking place.

Guess what? I myself had the pleasure of watching the trial of this case when I was in law school.  To sum it up nicely, the trial was equal parts property law lecture and soap opera.  Because this was a case of first impression in South Carolina, the arguments regarding the law took much longer than the trial itself.  Even as a law student, I can remember questioning the imposition of “fault” into basic gift law.  For starters, what does “fault” even mean in this context? Is the at-fault party the one whose conduct led to the demise of the relationship?  Or is the at-fault party the one who actually calls off the engagement?  The jury was never given any guidance.   You can imagine the helter skelter craziness that must have transpired in the deliberation room.

Once fault became an element, the trial became suitable for television.  With countless “he said, she said” arguments, the jury becomes the arbiter for choosing sides in a break-up – not resolving a property dispute.  Decisions like these are best left for Judge Judy.

At the end of the day, the Court of Appeals got this one right.  For now, the easiest way to resolve these disputes is by treating the ring as a conditional gift and applying gift law principles.  But in the future, these disputes could be easily eliminated if we required reciprocal gifts at the time of the engagement.  Who would sue for the return of a ring if it meant giving up your new set of golf clubs?  Not me.

Sixth Circuit Prefers A Bourbon On The Porch To A Margarita On The Beach

“All bourbon is whiskey, but not all whiskey is bourbon.”  So begins an especially amusing opinion in which the the Sixth Circuit gives Jose Cuervo a history lesson on one of the pillar’s of American society: bourbon.  It is an especially American concoction, Judge Martin of Kentucky observes, one that has been enjoyed since 1774 by everyone from Elijah Craig to Ulysses S. Grant, who apparently had a preference for Old Crow.

Plaintiff Maker’s Mark Distillery, Inc. has been sealing its bottles with red wax since the 1950’s, which it registered as trademark in 1985 (Reg. No. 1469925).  In 1997, the parent company for Jose Cuervo began using a red sealing wax on its special edition “Riserva de la Familia” tequila, shown here.  Maker’s Mark took exception to the use of the red sealing wax and, after Jose Cuervo refused to change the design, filed suit for trademark infringement in 2003.

Now, most people might be reluctant to challenge the strength and recognition of Maker’s Mark’s trade dress in a U.S. District Court in western Kentucky; but hey, too much tequila can make a man do strange things sometimes.  At least Jose Cuervo was sophisticated enough to request a bench trial, taking out of play the risk that it would end up with 12 bourbon-loving Kentucky jurors.  In a shocking turn of events, the district court found that Maker’s Mark’s registered trademark consisting of its signature trade dress element – a red dripping wax seal – was valid and infringed and enjoined Jose Cuervo from using any similar design.  The Sixth Circuit agreed and upheld the district court’s award of costs to Maker’s Mark.

Trade dress is an often unnoticed, but highly valuable form of intellectual property.  Recognized as a “symbol” or “device” under the Lanham Act (15 U.S.C. § 1052), trade dress typically encompasses the actual shape or design of a product or its packaging.  Some famous examples include the Coca-Cola bottle or Tiffany’s blue box.  Unlike traditional trademarks, trade dress must have acquired distinctiveness and it cannot be “functional.”  For example, if you see a small blue box wrapped in white ribbon, you don’t have to see the Tiffany’s mark before knowing where it came from.  Showing this level of recognition at trial can require a substantial amount of evidence. In this case, the Court found that Maker’s Mark’s fifty years of advertising and substantial sales were enough to satisfy the requirement.  It also did not hurt that in 2002 Business Week declared the Maker’s Mark’s seal “one of the most recognizable in the world.”

So next time you go to buy bourbon be rest assured that if you get the bottle sealed in red wax, it’s going to be a Maker’s Mark.


Bovinova: Ingenuity, Intelligent Product Design, and Meat Comas

This week, for my triumphant return to the blogosphere, I’m not going to talk about the standard fare of “stupid plaintiff” this or “dumb product” that. Instead, I’ve got a positive message about ingenuity and the virtue of inspired product engineering. I’ve got a message about Bovinova.

For those of you that don’t know, Bovinova is a massive epicurean barbecue hosted right here in Greenville, South Carolina, and it happened not too long ago on May 19. The main event of Bovinova involves a whole cow (minus the head) which is slow-roasted over an open fire for 18 hours, all while a host of goats, pigs, lambs, llama, chickens, and turkeys are being cooked. This year, more than 700 guests were served more than 1,000 pounds of meat, which makes Bovinova the leading cause of acute food coma of any event in South Carolina, including Thanksgiving.

In any event, one of the coolest things about Bovinova is the engineering and design that went into the grilling apparatuses. Instead of roasting the animals rotisserie-style, they are secured to a grilling plane. There are only a few places in the world where whole animals are cooked this way, so there’s not a whole lot of institutional knowledge out there about how to design the grilling surface, how to support the weight of a suspended cow for a long period of time, and how to rotate the cow over the fire so that both sides get heat. Obviously, these are not insubstantial questions. If the grill is designed without these aspects in mind, the cow may fall into the fire, large portions of the cow may not be cooked properly, or worst, one of Bovinova’s patrons may get physically ill from the meat.

However, thanks to some forethought and a lot of planning, the team of guys who built the grill anticipated these concerns at the outset of the design stage and engineered their way into effective solutions. What resulted is a grilling system that makes your charcoal Weber look like an easy bake oven. The entire cow can almost effortlessly be pulled off the fire, flipped 180 degrees, and returned to the fire; it can also be elevated at an angle to allow fat to render more effectively. I’m not going to go so far as to say that this is a “set and forget it” type of assembly; but it’s pretty close. As a consequence of their exceptional craftsmanship, not only are the hosts of Bovinova able to stage the biggest, most unusual cookout you’ve ever seen, more importantly, they’re able to do it in a way that minimizes the risk of injury or liability.

And that’s why Bovinova is my new favorite holiday.

Happy Memorial Day from Abnormal Use!

On this Memorial Day, we here at Abnormal Use would like to reflect on the American men and women who sacrificed their lives in fighting for our country.  We will forever be indebted to these courageous soldiers for their service.  In their honor, we give you the cover of War Heroes # 5, published way back in 1943.  As you can see, this issue honors one of America’s most infamous war heroes, Major General George S. Patton, Jr., otherwise known as “Old Blood and Guts.”  Little did this comic know, Patton was just beginning to leave his mark on American history.  Following this publication, he was a part of several pivotal moments in World War II, including the Battle of the Bulge in 1944 and crossing the Rhine in 1945.  While Patton did not die in combat, he passed away in Germany as a result of injuries he sustained in a car accident just months after the end of the war.  Today, we salute you, General Patton, and all those who have served our country, before and after.

And, of course, you should revisit our Memorial Day posts from years past – one, featuring another comic book cover, and another, featuring a history of this national holiday.

Friday Links

As we previously mentioned, we here at Abnormal Use are spending May 2012 focusing on comic book covers featuring police line-ups.  Behold! Above, you’ll find the cover to Mr. District Attorney #4, published way, way back in 1948. Okay, it doesn’t look like there is anything in between the purposed “Merchants of Death” and the witness identifying the suspect.  In fact, the suspect who has been identified appears to be glaring icily at the witness from atop some type of raised platform.  This does not bode well for the witness. Alas.

For some reason, yesterday, we here at Abnormal Use were thinking about Star Wars.  It’s a bittersweet topic for us, to be certain. Did you know that two years ago, we published excerpts from several state and federal court cases referencing Star Wars characters? And, of course, our magnum opus was our Star Wars April Fool’s Day gag in 2011. Take a look, if you like.

Speaking of nostalgia, did you know that our very first edition of Friday Links was published way, way back on January 8, 2010? Take a look at that puny first entry – which didn’t even feature an image, much less a legal themed comic book cover – by clicking here!

Have you heard of Tiger Lawyer? If not, it’s clearly something you need to investigate. With a name like that, how can you not?

Don’t forget! You can follow Abnormal Use on Twitter here and on Facebook here! Drop us a line!

Native American Tribe files lawsuit requesting discrimination on alcohol sales.

Alcohol retailers in Whiteclay Nebraska, a town with a population of 11 people, sold roughly of 4 million cans of beer in 2011.   How is this possible?   Whiteclay is located about 2 miles from the Pine Ridge Reservation of the Oglala Sioux Tribe in South Dakota.  Because of widespread problems with alcohol abuse among tribe members, Pine Ridge is an alcohol free reservation.  However, alcohol abuse problems persist in spite of the alcohol ban.  Tribal leaders blame the Whiteclay retailers for selling alcohol to tribe members who in turn illegally consume it on Pine Ridge or in the streets of Whiteclay.  The tribe has filed a lawsuit against the retailers in Whiteclay, as well as the breweries and distributors, requesting that the court prohibit them from selling alcohol to Native Americans.

Alcohol abuse is undoubtedly a serious problem for the Oglala Sioux Tribe.  As noted in the linked AP article, nearly a quarter of all children born on the reservation suffer from fetal alcohol syndrome or fetal alcohol spectrum disorder.  Moreover, the average life expectancy for tribe members is estimated to be less than 52 years, which is about 25 years shorter than for average Americans.  As such, the lawsuit seeks damages for health care costs and other alcohol-related problems on the Pine Ridge Indian Reservation.  The tribe also wants a judge to prohibit alcohol sales to Native Americans in Whiteclay.

It is certainly interesting that the Tribe has taken the position that alcohol retailers in Whiteclay should discriminate against Native Americans who seek to legally purchase their products.  One can assume that most of the alcohol sold is being illegally smuggled by the purchasers back onto the reservation for consumption.  But do the retailers, distributors, or manufacturers have a legal duty to ensure the products are consumed off of the tribe’s reservation?  And how far would such a duty extend?  If tribe members started driving to the next closest town, would that town’s retailers also be required to refuse sales to Native Americans?

The defendants in the case have moved for summary judgment.  However, if the case is allowed to proceed it has the potential for far reaching problems in the future for beer companies.  As one of the attorneys pointed out in the AP article, if the lawsuit is successful it could force the beer manufacturers to analyze the sales data of all of its distributors and retailers to ensure that none are selling a disproportionate amount if its product.   Small college towns come to mind as other places where the quantity of alcohol sold could likely far exceed the amount expected based on the number of residents who are of drinking age.

This certainly seems to be a hot button issue in Nebraska.  There’s even been a documentary about the retailers and the problems in Whiteclay.  You can watch it here.

The Abnormal Use Guide to Pool Safety

With summer on the horizon, the Consumer Product Safety Commission has issued a warning to users of portable pools.  According to the report, an average of 35 children under the age of 5 die annually in portable pools, accounting for 11 percent of all pool drownings.  Considering these statistics, the CPSC obviously has valid reasons for concern.  However, in our usual irreverent way, we here at Abnormal Use must question the sufficiency of the CPSC’s tips for the prevention of such accidents.

There’s nothing necessarily wrong with the CPSC’s tips.  Rather, the advice is more akin to a helpful reminder that breathing is essential to sustain life.  Take this tip for example:

Teach children to swim, float and other-life saving basics.  But do NOT consider young children “drown-proof” because they have had swimming lessons.

No doubt, the ability to swim is a great way to lessen one’s chances of drowning.  We understand that not all parents are ideal, but do people really consider children taking swim lessons as “drown-proof”?  After all, they are called swimming lessons – not Olympic training.  Maybe the better tip would be:

Even children capable of swimming are susceptible to drowning.  When children are playing in pools, always assume that accidents are possible.

Our personal favorite tip is one with a great deal of merit.  It is perfectly logical.  Yet, something about it seems a bit misplaced.

If you can’t fence the pool, use smaller, easier to store portable pools.  Then, empty the water ANY time you are not supervising the pool and turn it upside down or store it away.

Again, it’s good advice.  If a small pool is capable of being drained after each use, it makes sense to do so and take away the hazard.  But is this really the solution?  Reading between the lines, we know what the CPSC really meant to say:

If you choose to purchase an unsightly above-ground pool, fence it in.  If fencing is not an option, save yourself the embarrassment of having others know you purchased an above-ground pool by seeking other options.  Small plastic pools are socially acceptable for young children.  There is no shame in having your children observed temporarily playing in such pools.  But please, empty the water and remove the pools from your yard when not in use.  Teach children to clean up their toys.

Even if fencing is an option, understanding why anyone elects to purchase a large, above-ground pool is beyond our pay-grade.  If the CPSC was forthright, they would have taken inspiration from the late Mitch Hedberg:

Do not be persuaded through television advertising to purchase an above-ground pool.  Those commercials are only 30-seconds long because that is the maximum amount of time you can depict yourself having fun in an above-ground pool.  To prevent accidents and overall boredom, please seek out safer, more entertaining alternatives.

With that said, we do applaud the CPSC’s efforts.  Pools do present a risk of drowning.  With an appropriate level of care, many of these accidents can be prevented.  If you do have a pool in your yard – of any type – we refer you to the most important rule formulated by the Commission:

NEVER leave a child unsupervised near any pool or spa.

It’s Hard Out There For A Blog Editor – Strategies to Keep Contributors Interested

As we’ve previously mentioned, our editor Jim Dedman is now contributing one monthly post to the North Carolina Law Blog.  Last week, his most recent submission was published at that site.  The topic: “It’s Hard Out There For A Blog Editor – Strategies to Keep Contributors Interested.” That one hits close to home, as we here know all too well about the perils of maintaining a blog.

The enthusiasm of a new law blogger is unparalleled.  When a lawyer decides to blog, he or she has much to say and to offer potential readers.  Often, the new legal blogger already has several – perhaps even half a dozen – potential posts in mind.  In fact, it is that initial multitude of post ideas which prompts the desire to create a blog in the first place.  But, inevitably, as days pass, weeks go by, and weeks become months, the initial joy of blogging – like most other things that once made us happy – becomes a chore.  Sadly, the once promising blog evolves from a labor of love to a non-billable business development task, which typically falls to the bottom of the stack.  After all, non-billable work – particularly tasks which do not involve direct contact with actual or potential clients – must come second, third, or even fourth to other such plans.  This is why so many blogs die early deaths and why the legal blogosphere is full of blog graveyards.

There’s lot’s more, so click here to read the rest, which includes some suggestions on how to keep writers interested.

Is Music on Vinyl Better? – A True Products Inquiry

As we previously noted, Andy Mergendahl of Lawyerist has written an article of interest for all lawyers:  “Music on Vinyl is Better.”  This is an issue of concern to everyone, not just lawyers.  Essentially, Andy contends that the task of listening to music on vinyl is a difficult ritual requiring careful attention, thus, the experience is more enjoyable because of the effort expended.

Argues Andy:

There is an on-going debate about whether music played from a vinyl record sounds better than digital music, but my goal is not to settle that debate.  My point is that collecting and listening to music on vinyl is just a richer, more pleasurable experience.

. . .

First, you can’t take vinyl with you.  You have to be at the stereo.  You have to physically handle the record, and clean it.  You have to operate the machine, which has moving parts.  The sound of the record isn’t the same every time, because playing a record literally wears it out.  That makes you treat the vinyl and the music on it with care and respect.  Finally, you can’t jump from song to song with a click.  So you hear songs you would otherwise miss (or not purchase at all).  Plus a record’s sleeve can be 12 by 24 inches, allowing ample room for really cool or really awful art.

Combining all these elements makes it likely that you are really already passionate about what you are hearing or more likely to become passionate about it.

Andy makes an excellent point; the art of listening to vinyl is, really,  an affectation of the listener.  We enjoy the pleasure we derive from listening to music on vinyl because it is the fruit of a labor of love.  Andy notes in the piece that he is “old, so when [he] started buying music, the CD was just coming on to the scene.”  That makes him not to much older than me; and although I appreciate the care involved in the collection of vinyl records, I must step forward to defend the often maligned, never cool enough for school compact disc.

(It’s a product, after all, so we can talk about this issue on a products liability blog, right?)

The CD, by its very nature, is mobile.  It can be played in the car, thereby freeing the driver from the awful constraints of the popular radio.  With portable CD players, either the once ubiquitous Discman or the fabled boomboxes of yore, the listener’s music of choice can be easily brought from room to room, home to home, venue to venue, inside or outside.  Such technology allows us to take our own personal favorite albums, which may or may not be available on the radio or elsewhere, with us to play for our friends and such.

That’s far more difficult with vinyl, especially these days.

There’s also the quality issue.  CD’s do – and always have – sounded better. Remember when CD’s first arrived on to the scene in the mid to late 1980s? Listeners – not just snobby audiophiles, either – marveled at the depth of difference in audio quality between their old LP’s and the new CD’s. The more nostalgic fans – who insisted that the snaps, crackles, and pops of old vinyl were inextricably intertwined with the music listening experience – soured on CDs, finding new technology too clean and clinical in the absence of such accompanying noise.

But you can’t fault CD’s just because they eliminated some of the flaws of the system that you grew up enjoying, can you?

Plus, CD’s are simply more durable. Look at a 25 year old box of LPs and you will see faded, frayed, and damaged albums.  You will likely hear scratched and damaged content on the albums themselves unless the owner behaved like a museum curator.  With CD’s, the protective outer casing typically preserves the albeit album art (for the most part, at least). If the listener takes reasonable care, the music will sound just as good as it did on the day you initially bought it. Lord knows my 21 year old copy of Nevermind still sounds great.  Certainly, there are albums that one frequently enjoys that may require replacement on CD due to heavy listening.  I’ve had to  buy several of the Radiohead albums at least three times, and of course, I’ve bought The White Album at least four times (in various formats) over the last 25 years.  But I would have probably had to replace those albums more often had I been buying them on vinyl.

CD’s simply offer a richer listening experience absent a few, perhaps pleasurable, steps required of vinyl. There will always be people who will want to grind their own coffee and derive pleasure from the additional work required of that enterprise.  But there is nothing wrong with an easier more accessible way to enjoy music, particularly when the audio quality is superior.

Now don’t get me started on the issue of CD’s versus digitally downloaded music.  One can, of course, rip tracks from a CD onto one’s computer, but the default bit rate for imported tracks means that the audio quality is significantly less.

But that’s a debate for another day.

(An editorial aside: The best part of writing this article was learned that the boombox has its own Wikipedia entry.).

Friday Links

As we previously mentioned, we here at Abnormal Use are spending May 2012 focusing on comic book covers featuring police line-ups.  Above, you’ll see the cover of Dick Tracy #89, published way, way back in 1955. There’s nothing particularly jarring about the line-up itself (and much of that Warren Court jurisprudence was years in the future, anyway).  However, what strikes us about this cover is the amateur logo on the side of the police video camera. “Police T.V.”? In stencil? Wow, police, you couldn’t outsource that? Sigh.

Whoa! If you can believe it, this is our 650th post here at Abnormal Use! That’s a lot! Does this mean that we are in the same realm as Action Comics, which published its 650th issue back in the halcyon days of 1990, or even Detective Comics, which published its own 650th issue back in the fateful year of 1992? Superman published its 650th issue in 2006, as did Batman. We’re in good company.

Our own bloggers Stuart Mauney and Rob Green were recently published in the ABA Tort Trial and Insurance Practice Section’s Committee Spring 2012 Committee News newsletter. Their article is called “Emergency Response To Catastrophic Trucking Accidents.”  It can be found on page 3 of the PDF newsletter. Check it out. I mean, really, it’s got the word “catastrophic” right there in the title. You have to read it.

Once again, our pals at The Law and the Multiverse are offering some online CLEs. Not to be missed.

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