Antonin Scalia, The Legacy of Democracy

The Originalist. The New Hamilton. The Italian Wordsmith. The Conservative Catholic. The Right-Winged Nut. Ginsburg’s BFF. Call him what you will. Justice Antonin Scalia left his footprint on the jurisprudence of the United States over the last thirty years that will not soon be forgotten. His opinion in Heller and his dissents in King v. Burwell, Lawrence v. Texas, Obergefell v. Hodges, and Fisher v. University of Texas are well-known and will be remembered for years to come, love ‘em or hate ‘em. Though many disagree with his originalist construction of the Constitution, Scalia was a revered and respected justice, by his friends and foes alike. And perhaps that is the legacy of Scalia, looking past some of his less-than-popular dissents or looking beyond his way with words. It is the legacy of democracy.

We live in a country where men and women, from different backgrounds and walks of life, are permitted to engage in debate, discourse, and flat out disagreement about what the Constitution and other laws mean. The Supreme Court is an institution that represents democracy (ignoring for a moment the political stare downs that have ensued since Scalia’s death). We all, from time to time, fail to appreciate democracy, and the justices’ bouts on the Supreme Court are a good reminder. Indeed, it is an arena of Frazier versus Ali, except it is Scalia versus Ginsburg. Sotomayor versus Thomas. Twelve rounds of writing and rewriting and at the end, harsh blows are exchanged.  No holds barred and, for the time being, a winner is declared. And at the end of the day, after the ink is dry, the justices remain friends, even best buddies. The band marches on, the flag still flies. This is America. As the wise, faux president (played by the ever-talented Michael Douglas) said in The American President, “America isn’t easy. America is advanced citizenship. You gotta want it bad, ‘cause it’s gonna put up a fight. It’s gonna say ‘You want free speech? Let’s see you acknowledge a man whose words make your blood boil, who’s standing center stage and advocating at the top of his lungs that which you would spend a lifetime opposing at the top of yours.'”

Think about that. The legacy of Scalia that perhaps everyone can agree on and build upon is his enduring love of country and the bench’s most fervent liberal justice, Ginsburg. The two were not mutually exclusive in Scalia’s eyes. And Ginsburg’s tribute to her dear friend and fellow justice states it best: “We are different, we are one, different in our interpretation of written texts, one in our reverence for the Constitution and the institution we serve.”

Happy Trails, Hans

2016 has only been here for a few short weeks. Unfortunately, along with Arctic blasts and birther campaigns, it’s brought the loss of several notable celebrities, including Natalie Cole, David Bowie, Alan Rickman, and most recently, Glenn Frey of The Eagles. All have commanded audiences for decades and their deaths surely will be a celebration of their lives and their contributions to all of ours. This blogger would like to focus on one of these great artists: Alan Rickman. An incredible character actor. A quiet, no-frills Brit who morphed into each and every role he played. In the days following his death, the headlines focused on Rickman’s role as Professor Snape in the Harry Potter film. A legendary role, no doubt. And a role within a movie series that has literally changed lives and joined the annals of great, generation-defining movies.

However, among the well-deserved headlines reporting his unfortunate passing, very few mentioned Rickman’s greatest role—Hans Gruber. That’s right. We’re talking Die Hard. We’re talking John McClane v. Hans Gruber, Good v. Evil, ‘Merica v. Germany. You get the picture. Rickman portrayed the German terrorist who leads his band of muscle men to take over a Los Angeles office building during the Christmas holidays. Without Hans, and ipso facto, without Rickman, would Bruce Willis’s John McClane have been so charming? We dare say no. Rickman lulls you in to his world; in fact, he makes you not completely despise Gruber until halfway through the movie. He’s suave, surprisingly good with a gun, and hypocritical in his lust for money and deceivingly good American an German accents, all the while continuing his façade of devoted political terrorism. If he weren’t so good at playing the villain, Han’s mix-up of John Wayne and Gary Cooper could be considered endearing.

In the end, it becomes personal for Gruber just as much as it was personal for McClane. Rickman digs deep in, by the way, his first ever action movie, and fights to the bitter end. Please don’t get us wrong. We’ll always pull for McClane, and he’ll always win, just ask Hans and his younger brother Simon. But as good as Willis is as the blue-collar, degenerate cop with a hangover and a penchant for saving the world, Rickman is equally good as the tailored, educated, and refined villain, calmly (and then not so calmly) being foiled by Mr. Cowboy.

If you haven’t seen this movie, watch it. If you have seen it, watch it again, often. And while you’re at it, say hello to Rickman’s other notable roles: Harry, the classic fool, the Sherriff of Nottingham, Colonel Brandon, and of course, Professor Snape. We’ll remember all of these. And after all this time, we’ll remember Hans and Rickman . . . always. Yippie-Ki-Yay.

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).

The Rolling Stones Are Losing Their Insurance Battle

There really is no other way to begin this blog post than with the expected and obvious: the Rolling Stones have recently learned that “You Can’t Always Get What You Want.”  Or perhaps noting that they “(Can’t Get No) Satisfaction” would be apropos, as well.  But we digress. . . .  According to various media outlets, including the Chicago Sun Times, the iconic band’s recent insurance claim—a $12.7 million claim—was denied by insurance underwriters.  The Stones submitted the claim for reimbursement for concerts they were forced to cancel in Australia and New Zealand after lead singer’s Mick Jagger’s girlfriend L’Wren Scott committed suicide in March of this year.

Last month, the underwriters petitioned the federal court in Utah, Scott’s native state, to permit them to gather testimony and documents from Scott’s brother.  A federal judge granted the request a week later.  After the underwriters’ denied the claim, the Stones filed suit in the friendly confines of London.   Here is the crux of the issue: The $23.9 million insurance policy issued to the band purported to provide coverage for the possibility of concerts being canceled due to the death of the band’s family members.  Jagger and Scott’s lack of a legal union was not the reason for the insurance underwriters’ denial—indeed, Scott was apparently covered under the policy as Jagger’s longtime girlfriend.  Rather, the insurance underwriters denied coverage based on their contention that Scott suffered from a pre-existing medical and/or mental condition that voided coverage for her death under the policy.  The insurance company is also questioning Jagger’s claim that because of his depression following her death, he was advised by doctors not to perform for at least a month thereafter.

We here at Abnormal Use are somewhat surprised that it was the pre-existing condition issue which was the underwriters’ basis for denial and are curious as to whether the policy failed to include a suicide exclusion or intentional act exclusion.  In any event, it seems clear the band will not give up its fight easily—in fact, we can envision the Stones’ singing “Start Me Up” upon receiving news of the underwriters’ decision and subsequent lawsuit.  We will certainly follow up on the claim, the policy language and the underwriters’ legal reasoning as the case progresses.  In the meantime, we invite our readers to “Shine A Light” on the underwriters’ denial and insight or predictions regarding the case as it moves forward.

The Art of War, Pomegranate Style, in The U.S. Supreme Court

Sun Tzu wrote: “All warfare is based on deception.”  In addition to the art of war, this sentiment reaches far into the world of consumer advertising, as well.  With recent mega-decisions coming from the United States Supreme Court, most notably the Hobby Lobby decision, we here at Abnormal Use overlooked a recent deceptive advertising decision of the Supremes.  As reported by Sam Hananel of the Associated Press and The Huffington Post, the Big Nine (err, Big Eight in this instance as Justice Breyer warmed the bench this go-round) ruled in June that juice maker Pom Wonderful can proceed with its lawsuit against the Coca-Cola Co. and its version of pomegranate juice.  See POM Wonderful LLC v. The Coca Cola Company, — U.S. — (June 14, 2014). The lawsuit alleged that the label on Coke’s “Pomegranate Blueberry Flavored Blend of 5 Juices” beverage of its Minute Maid line was somehow misleading to consumers.  Why? Well, Pom alleges that 99 percent of the pomegranate blueberry concoction is actually apple and grape juice.

Justice Kennedy, author of the 8-0 decision, focused on the Coke juice’s actual pomegranate and blueberry content, .3 percent and .2 percent, respectively, despite the drink’s potentially misleading label, which showed the words “Pomegranate Blueberry” in much larger typeface than the rest of the drink’s official name and included a large pomegranate graphic set among other small fruits.  Previously, the lower courts had sided with Coke, finding that the drink’s label conformed to the FDA’s rules and the law.  In a refusal to elevate form over substance, Justice Kennedy conceded that the juice may comply with FDA rules but rejected the notion that technical compliance with the FDA absolves a company from potential liability where a label may mislead consumers for different reasons.

In this instance, Justice Kennedy noted that Pom was not precluded from suing Coke under the Lanham Act for unfair competition based on false or misleading claims.

Representatives of Coke vowed to continue to fight the lawsuit against Pom now that the Supreme Court has permitted it to go forward.

But what are the larger ramifications of the ruling?  It appears the decision presents the distinct possibility that a company may have increased exposure to private litigation for deceptive labeling, despite its compliance with FDA rules and regulations.

Four Decades After Its Release, “Stairway To Heaven” May Be Litigated

We here at Abnormal Use love music, especially the classics of the good ‘ole days.  Understandably then, our attention has been drawn to the recent controversy involving Led Zeppelin’s 1971 hit “Stairway to Heaven.”  To quickly summarize, the estate of Randy California of the band Spirit has recently claimed that Zeppelin plagiarized his song “Taurus”—or more specifically, the universally recognized opening chords that introduce the Zeppelin smash hit.

We are surprised by the claim and likely pending lawsuit for several reasons.  First, “Stairway to Heaven” was released in 1971. Again, 1971!  Can California’s estate bring this claim more than forty years after the alleged rip-off?  According to the Supremes (get it?), yes.  The United States Supreme Court recently held that no delay is too long when it comes to bringing a copyright infringement suit.  Just as an FYI, the case involved a dispute over the screenplay of Raging Bull.  Classics overload in this blog post.  In any event, the decision confirms that yes, California’s estate can bring a lawsuit up to three years after an infringing act, which essentially sets up a rolling cause of action.   Led Zeppelin is gearing up to release a new version of its iconic album Led Zeppelin IV, which provides the estate with its infringing act.

Secondly, where do we draw the line between paying tribute and flat-out plagiarism?  They say imitation is the sincerest form of flattery.  The problem may lie by Zeppelin’s failure to give the proverbial “shout out” to California or Spirit.  According to Forbes, the band has a long history of appropriating songs and chords without crediting the original artists.  In fact, the band has settled or defended copyright cases over “The Lemon Song,” “Whole Lotta Love,” “Babe I’m Gonna Leave You,” and “Dazed and Confused.”  Perhaps Aloe Blacc’s track “The Man” provides guidance.   The song clearly pays homage to Elton John’s hit “Your Song” in its chorus, which repeats “you can tell everybody” in a similar fashion to John’s.   However, on his production company’s website, Blacc and the producers have provided the credits for the song, including crediting an interpolation from “Your Song” by John.  For his part, Sir Elton is loving Blacc’s track, noting that the influence means his music is still relevant and it gave him a “big kick up the bum.”  What a cheeky fellow.

We will see how this story develops in light of Zeppelin’s upcoming album release.  In any event, it is undeniable that the opening riff to “Stairway to Heaven” is iconic, often-emulated, and frankly, maybe even overplayed?  Party on, Wayne.

Under Armour and Nike Settle Trademark Infringement Lawsuit

Since we are in the midst of March Madness, we here at Abnormal Use take this opportunity to relay a recent apropos settlement involving two sports brand powerhouses. According to the Baltimore Sun, last month, Under Armour and Nike settled a trademark infringement lawsuit arising from Nike’s use of the certain phrasing in its advertising.  In its complaint filed early last year in federal district court in Maryland, Under Armour alleged that Nike launched an advertising campaign that appropriated “I Will” prominently and repeatedly, which suggests Under Armour’s longstanding use of its iconic “I Will” tagline for its similar performance products.  Under Armour claimed that Nike used slogans such as “I will finish what I started” and “I will sweat while they sleep” in various social media ads.  The company also complained that Nike used a variation of Under Armour’s phrase “protect this house” by using the Nike tag line “I will protect my home court.” As one might expect, the terms of the settlement were not revealed.  (The Sun quotes Under Armour as saying only: “The litigation has been resolved on a confidential and mutually agreeable basis.”). But one can only imagine the settlement amount was a drop in Nike’s proverbial bucket of revenue.  Quite frankly, when we here at Abnormal Use first got wind of the “I Will” dispute, we thought it was Under Armour’s, not Nike’s, use of the phrase that was causing such flack.  Why?  “I Will” is an appropriate and clever response to Nike’s universally known command “Just Do It.”

Chobani’s Bad Month

As The Washington Post reported last week, the British Court of Appeal affirmed a ruling that Chobani, a United States-based company and leader among the ever-popular Greek yogurt movement, cannot label its products “Greek” because the products are actually made in America.  The lawsuit was brought by rival Greek yogurt maker Fage, which is, in fact, a Greek company.  For edification, Greek yogurt is identified by its thick and creamy texture, which results from the straining of the whey.  The British court affirmed a previous ruling that Chobani’s “Greek yogurt” label misled British consumers and any products labeled “Greek yogurt” must be made in Greece.  As a result, the court enjoined Chobani from using the “Greek yogurt” label in Britain.  One could argue this is a harsh result, especially from the country that produced William Shakespeare, who famously observed that “[a] rose by any other name would smell as sweet.”

A similar battle was fought in the United States over the “Napa Valley” designation on wine labels in the early 2000’s.  Bronco Wine Co. purchased the Napa Creek, Rutherford Vintners, and Napa Ridge labels in the 1990s and 2000.    Federal law mandates that if a wine bears the name of a geographical place, at least 75 percent of the grapes in the wine must have been grown within the geographical region.  Due to a loophole in the federal law which grandfathers and exempts pre-1986 labels from the requirement, Bronco sold these Napa-labeled wines using grapes grown elsewhere.  Some referred to Bronco’s business plan as a scourge of Napa Valley.  The problem?  Napa vinters are a strong and powerful association in California, who seek to protect the prestige and identity of Napa-produced wine.  The group successfully lobbied the California legislature to pass a law requiring wine labels that bore the name Napa or any other federally recognized viticultural area within Napa County to contain 75 percent local grapes.   After six years of legal battles, and I’m sure quite a few bottles of Cab Sav, Bronco gave up its fight to stop California from enforcing the law.  Bronco may have lost this labeling battle but is undoubtedly winning the supply and demand war, as it is the owner of the ever-popular (and economic) Two Buck Chuck.

Do brands like Hawaiian Punch, London Fog, Patagonia and Arizona Beverage Company face the same fate, or are the Bronco and Chobani results merely aberrations?  We’ll see.

In addition to Chobani’s Shakespearean troubles, Russia has blocked 5,000 Chobani yogurts from reaching American athletes participating in the 2014 Winter Olympics in Sochi.  Russian officials are saying improper paperwork is to blame, but one can only wonder given the recent tension between Russia and the United States.   Though seemingly minor compared to the countries’ recent disagreements, Yogurt-Gate has escalated into an intense political matter – the Obama administration has even intervened.  Nevertheless, at the time of the post, the Russian stance remains “Nyet.”

In the span of one month, Chobani has been stripped of its “Greek” reference in the United Kingdom and all but banned from the Olympics, the biggest sporting history in the world.   Do you want to know the true irony of Chobani’s recent woes?  It just so happens that the birthplace of the Olympics is . . . Greece.