Giving Out Free Swag? Remember Product Safety Still Applies


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?