Recently, the Associated Press reported that a New Zealand woman died as a result of a Coke habit. Hearing reports of someone dying because of coke is nothing new, but this time we aren’t talking about the powdery white stuff.  Rather, this time a woman has died after regularly consuming 2 gallons of Coca-Cola per day.

After the 30-year old mother of eight died of a heart attack in February 2010, an inquest was held to investigate the unusual death. According to the AP, pathologist Dr. Dan Mornin testified that Harris most likely suffered from hypokalemia caused by the excessive consumption of Coke (between 2.1 and 2.6 gallons daily) and overall poor nutrition.  Further, Dr. Mornin indicated that toxic levels of caffeine may have contributed to her death.  That, and the fact that she ate little and smoked 30 cigarettes per day.

While we have never thought of soda as necessarily healthy, we have also never considered it a killer. Even though this incident has earned our (and certainly the Coca-Cola Company’s) attention, we don’t expect Coca-Cola do be worried about any potential litigation. First, there are clearly factors other than mere ingestion of Coke at play here. Harris’ consumption was far beyond the realm of reasonable use. As Coca-Cola Oceania was quick to point out, even water can be dangerous in excessive amounts. Couple her excessive consumption with her poor appetite and pack-and-a-half per day smoking habit, and you have a recipe for disaster.

Second, the risk of heart attack after drinking two gallons of Coke daily is not a risk of which Coca-Cola has a duty to warn. The hazards of caffeine are well-documented. Therefore, it should go without saying that the risks of drinking a soda swimming pool should be open and obvious.

This incident is not about Coca-Cola, Pepsi, or any other soda manufacturer. This is about over-consumption and an otherwise unhealthy lifestyle. Even the fast food litigation has more merit than dragging a soda manufacturer into court after super-saturating oneself with the product.

I have previously shared some of the lessons learned from the mediation and trial of Jill vs. Big Bad Trucking Company. Patience.  Perseverance.  Trusting the mediator’s judgment on when to disclose crucial information.  I even introduced you to Jill’s mother, who apparently prohibited her from settling the case prior to trial.  But those are not the only lessons this lawyer learned from that trial!

The second day of trial began with an hour long drive from our Abnormal Use headquarters in Greenville, South Carolina, to the courthouse square in Abbeville, South Carolina.  I parked my car, opened the back door to grab my file, and panicked!  Where was my suit coat?  How could I forget my coat?  A trial lawyer can wear (should wear?) old shoes.  A trial lawyer can forget his Rules of Civil Procedure.  A trial lawyer can even forget to bring part of his file.  But his coat?  No way!

I immediately called my office but knew there was no way for my staff to get from the office to my house and then to Abbeville before the judge would say, “Mr. Mauney, call your next witness!”  I quickly made my way to the courthouse and found the judge’s law clerk at her desk.  She could not stop laughing once I finished telling my tale of woe.  My next stop was the clerk’s office to find a bailiff.  The first bailiff I found was short and wide.  The next one I encountered was short and skinny.  I was, and still am, tall and wide.  I began to sweat profusely.  What was I going to do?

Suddenly, and without warning, (I have always wanted to write that somewhere other than a pleading), a tall and wide gentleman appeared at the end of the hallway in the basement of the Abbeville County Courthouse.  As he walked toward me, I noticed that he had on a tie, and estimated that if he had a coat, it would fit me!  I walked up to him, smiled warmly, and introduced myself, sharing my predicament.  He just nodded his head and pointed to an open doorway.  Above the doorway was a sign, “SHERIFF – ABBEVILLE COUNTY.”  I followed the sheriff into his office, where he took the light tan sport coat off the back of his chair and handed it to me.  While the coat did not match my dark gray pants, I did not object, and thanked him for his kindness.

When I returned to his chambers, the judge just shook his head and laughed, as his law clerk had already spilled the beans.  Both of them were amused that I had found a coat substitute, and the second day of trial began.  Later in the afternoon, I began my closing argument by thanking the jury for not holding it against me that my suit coat did not match my gray pants.  They seemed to appreciate the story.  As expected, they then returned a verdict against my client.  However, as I shared in my previous post, the verdict was significantly less than Jill had been offered prior to trial.  They apparently did not punish this lawyer for his unfortunate error in fashion etiquette.

Someone recently asked me why I keep an extra coat in my car.  That gave me the perfect opportunity to tell them this story.

It’s a brand new month, and to celebrate, we’re going to spend our Fridays in May focusing on comic book depictions of police line-ups.  So, above, you’ll see depicted the cover of Gotham Central #34, published not so long ago in 2005. We’re not criminal lawyers here, but isn’t it a bit suggestive to have the participants to a line-up look so dissimilar as here?  By this point in the criminal procedure process, there’s a witness who has already described to the police the nature of the suspect, and the police have apprehended a suspect they believe to be the perpetrator. In this line-up, however, we’ve got Kid Flash, Cyborg, and Wonder Girl, who taken together, couldn’t look more different than each other.  If the suspect was a young red haired male wearing a yellow outfit emblazoned with a bolt of lightning, who do you think the witness is going to pick? There’s got to be a constitutional issue here, right?

How did we miss this? Friend of the blog Jay Hornack a/ka/ The Panic Street Lawyer writes up his recent tour of the Bruce Springsteen exhibit at the National Constitution Center in Philadelphia. As we noted and detailed in this piece, a handful of our attorneys recently caught Springsteen’s latest tour in nearby Greensboro, North Carolina. As always, a fun outing.

Here is an interesting 1966 letter, written by Harper Lee, responding to a school board’s assertion that her To Kill A Mockingbird was “immoral.”  Back in July of 2010, our own Mills Gallivan, senior partner at the firm and occasional guest author here, offered his thoughts on Lee’s famed novel and the movie based on it in a piece called “Bluejays and Mockingbirds.”  We encourage you to revisit it.

Ryan S. at The Signal Watch wonders what the current generation of children know about pop culture of generations past.  A good read, that. This is not the first time he’s written on youth culture, either. If you have friends or children starting college this fall, you might direct them to his rather amusing blog post, “The League’s Guide for Incoming Freshman.”

In the last few weeks, we here at Gallivan, White, & Boyd, P.A. have had a few new attorneys join our offices in Greenville, Columbia, and Charlotte. Check out the details here!

Whoa.  We just realized that this is our 120th installment of Friday Links.  How about that?

We here at Abnormal Use love “Seinfeld.” We have a bit of an obsession, in fact. You’ll recall that way back in 2010, we interviewed Phil Morris, the actor who played Jackie Chiles, the flamboyant Plaintiff’s attorney who represented Kramer on several occasions. Not too long ago, we interviewed veteran character actor James Rebhorn, who played the district attorney in the “Seinfeld” series finale who prosecuted Jerry, Elaine, Kramer, and George for violation of a Good Samaritan statute. (You’ll recall that Chiles defended the “Seinfeld” gang in that finale.). So, being the completists that we are, we sought ought actress Myra Turley, who played the jury foreperson in the series finale who read the verdict against our “Seinfeld” heroes. Not only did she appear on “Seinfeld,” she’s also been featured on some of our other favorite shows, including “Mad Men,” “Breaking Bad,” and even “The Misfits of Science.” You can see the “Seinfeld” verdict scene, and Turley’s role therein, here. She was kind enough to agree to an interview, which we present below.

JIM DEDMAN: You played the jury foreman who reached the verdict that Jerry, George, Elaine, and Kramer in the “Seinfeld” finale back in 1998, how did that come to be?

MYRA TURLEY: Well, Larry David, who is the creator of “Seinfeld.” I used to lease an apartment in New York City. I knew Larry, and before the big finale, I got a call from Larry, [he] said, “Myra, you want to be in the finale? I have a small but pivotal part!” So, it was a small, but pivotal, part.  I said, “Sure,” and that’s how that happened.

JD: Well, it certainly was pivotal. How does it feel to be the one who condemned the “Seinfeld” gang to jail?

MT: Well, they shot it both ways, because there was so much hype about the finale  . . . [P]eople [were] trying to find out what happened, [so] they shot it with both endings, them getting free, and them getting guilty . . . .

…

They didn’t shoot the [whole] scene twice . . .  [Just f]rom the point on where I announced guilty, and their reaction, and then the what happens afterwards, and [then] our not guilty, and their reaction, and then what happens afterwards.  So they shot from that part on twice.  Not anything up to that.

…

AU: One of the things we always ask is what efforts are made to realistically depict the courtroom process, and obviously, in a comedy like “Seinfeld,” that’s not the chief concern. But were there folks on the set that were explaining how the procedure works and that sought of thing?

MT: Yeah, they have legal advisers and military advisers or police advisers or hospital advisers usually on a set if they’re going to do something.  I do have one funny story, if I may tell it, about being the jury foreman .

AU: Certainly.

MT: I was called a couple of years after that to do jury duty in downtown L.A.; and it was a [criminal] case, and it was right before the . . . Christmas holidays, and it went on for a week, and it should never have gone on for a week. And we broke the day before Christmas Eve. Christmas Eve was on a Saturday. At 3:00 the judge said, “You have to go get a foreman and come in with a verdict on four counts. If you don’t do it, you will have to come back the day after Christmas . . . .”  . . . [S]omebody said, “[H]as anyone ever been a foreman before?”, and I said, “I was, on ‘Seinfeld'”, and they said, “You do it, then.”  We did it, and we came in with a verdict on the four counts, and we were out by 4:00, and we didn’t have to come back after Christmas.  It should have never gone to trial, and we gave the verdict, and the judge said, “I agree, and if any of you are willing to stay and talk to a very young district attorney about why you came to that verdict we would appreciate it.”  It was not guilty.

…

AU: You played Judge Carla DeCosta on “Family Law.”

MT: Yes.

AU:  How did you prepare to play the role of a judge?

MT: I talked to a friend who is a family lawyer to understand the difference between family court and civil and criminal; and basically, the difference I discovered, was there was no jury.

AU: Do you remember what type of direction you received as an actor playing a judge on that show?

MT: You don’t really receive direction.  . . . In television, they work so fast that you basically get blocking direction.  You come in with the audition, having done the work, and they like what you have done, and then they tweak it one way or another, but there is not a lot of direction, just like a tweak.

AU: You have appeared on a number of other legal dramas from “L.A. Law” and “Family Law” to “Judging Amy.”  What is it about the legal system do you think makes it such a popular subject matter for television shows?

MT: There are basically only five kinds of television shows.  You have your medical shows, your cop shows, your lawyer shows, your office shows, and your family shows, and maybe you can take a tweak on any one of them, but they all fall into those categories.  An office show might be your spaceship because it could have been “Star Trek,” but that’s your office, essentially, and then the style of the show could be science fiction, or it could be really nitty gritty like a procedural one like “CSI.” “Law & Order,” that’s a combination cop and lawyer.  So, that’s basically what television has been for the hour dramas.

AU: Do you think that actors and lawyers require a similar skill set on some level?

MT: If they are trial lawyers, yes.

AU: What types of skills do you think that actors and trial lawyers might share?

MT: Well, they have to play a strong intention or really clear intention of what they want, what they are going for.  . . . I would imagine for lawyers it is quite structured. You have to set this up, and then set this up, and then set this up, before you can make that deduction.  You have to lead the audience, the jury, into thinking this way, and an actor  . . . is a story teller, and the story is told and usually, on detective shows or law shows, we may not know exactly who the guilty person is in the beginning, and we may be led down this path, it’s a mystery, you don’t want to know in the beginning because then there is no suspense.  Also, with lawyers having the ability to speak and affect a jury’s emotions.

AU: I want to switch gears.  I mentioned in the beginning I wanted to ask you about some of your work in non-legal shows, and very recently you played Katherine Olson, the mother of Peggy Olson, on “Mad Men.”

MT: I’ve done that one for about five years.

AU: What is it like to be on the set of that show?

MT: It’s great.  I loved the show the first season, just loved it.  I love the idea of the question that he is asking, “How did we meet as society from Dwight Eisenhower to Woodstock in ten years?”, and I love, love the fact that the arc of the story is not completed in one hour which is really 44 minutes . . . that he arcs it over a whole season, over a whole five seasons, so I do like that.  I love the character that I play.

AU: From what I have read, they go to extreme efforts to make the props and the set design as accurate as possible. Is it like being back in that time period?

MT: Absolutely.  I remembered the first day I walked on the set in 2008, and I ran into Matt Weiner, who was the creator, walked me around the set and showed me that this is the kitchen, this is this, and this is this, and as he was walking by – that scene was set in 1962, he was walking by, and he noticed something, and he called his prop guy.  “That picture of John Kennedy wasn’t taken until 1963, it’s wrong.” He is so detailed oriented.  So detailed oriented, and you feel like you’re in a time warp when you go back there.  They wore under garments that are of that style, certainly not the one’s you would wear today.  The dresses are fit very differently.  Women’s body shapes were very different.  Hair, makeup.

AU: Well, that is not the only great AMC show that you have been on.  You were on the recent season finale of “Breaking Bad,” playing the nurse to Hector Salamanca, who was played by Mark Margolis.  What was it like working with him and with Vince Gilligan, who directed that episode?

MT: Vince Gilligan is a genius.  I loved “The X-Files,” and he creates such suspense, and he also goes into incredible detail, and the thing I had to do for most of this was work with Vince because Hector Salamanca doesn’t speak. He only has to communicate with a bell, and he works with kind of like a plexiglass see through, he can see, and I can see with letters, and pointing to letters that spell out what he is trying to communicate.  So most directors, creators, people, producers, would give you maybe one or two letters and then cut it to get the message, but Vince took every single one and discovered . . . and shot it a different way that it was such a way of building up the suspense knowing that something was going to happen.  . . . He is an incredible genius at building up dread, suspense, something keeping the audience on their tinker hooks.

AU: Well, that bell proves to be very important to one of the final scenes, as well in the undoing of the character played by Giancarlo Esposito.  What did you think of that final scene with Mark Margolis and him?

…

MT: Well I had sat next to Giancarlo in makeup, and then watching the prosthetics going on.  It was a prosthetics on half of his face, and he loved the fact that only half of his face received the blast.  So it was a combination . . . a lot of it was done with prosthetics, and then they did some in post production, they did some computer graphics post production, but very little.  That was quite a shot.  The first thing was you did all the work, and then the first scene was the explosion, and there was rubble all over the hallway and in the room, and having figured out how Giancarlo was going to fall, he wanted him to fall flat on his face, fall straight down, and come out see hm with a normal face, and then shoot it so you see the explosion of the face and then have him fall straight down and having him do that with all the rubble. It took a long time to shoot that, being he’s a perfectionist, he is a genius and a perfectionist, and I think it works brilliantly.

…

AU:  Any other fond memories you have from being a part of the “Seinfeld” finale, 14 years ago?

MT: Wow, wow.  How come I haven’t aged?  Next door to Stage One, Bill Maher was shooting his first show with . . . it wasn’t “Real Time with Bill Maher,” it wasn’t “Politically Incorrect,” it was kind of a pre-one, a pilot leading up to that, so he was always over on the set, and people would go over and check out his rehearsals and stuff like that, so that was a small world.  Huge crowds, huge, huge, huge, crowds.  It was almost like anyone who had ever been on the show was a guest star or was in the audience watching.  . . . [P]eople who had been friends with Larry or any of the cast, they were all there.  So it was a very festive party atmosphere, and yet it was so secretive.

AU: One more question for you. You mentioned that they shot it both ways, guilty and not guilty. You obviously were there on the set. Which one do you think was the right verdict for Jerry, Elaine, George, and Kramer?

MT:  Guilty.

Recently, friend of the blog, Max Kennerly, himself of the famed Litigation & Trial blog, tipped us off to commercial playground equipment manufacturer Landscape Structures’ recall of its Evos Slalom Glider slide.  Apparently, the Consumer Product Safety Commission issued the recall following reports of at least 16 children under 8 years old being seriously injured after allegedly falling from the slide.  There’s already at least one lawsuit against the manufacturer.  After posting his terrific review of the recall, Max informally challenged us via Twitter to defend the product.  (See here and here for those tweets.).

Well, Max, not being ones to back down, we accept the challenge!

For starters, we admit the task of defending the device seems daunting, at least initially.  The slide is narrow and shallow; it offers no handrails.  Its ladder looks like the spinal column of a giraffe.  The Evos might not be the first choice for playground equipment of the overprotective parent.  Clearly, the Evos, at first glance, offers some fodder to the putative Plaintiff’s counsel.  But are they legal ones?

There are two standards to determine design defectiveness:  (1) consumer expectations and (2) risk-utility.  According to the consumer expectations test, a product design is defective if it is dangerous beyond a consumer’s reasonable contemplation.  Here, we would assume that most consumers hope children would be safe while playing on playground equipment.  However, there is clearly a risk of injury on even the most benign playgrounds.  Children can and do fall from swings, ladders, slides, and rock walls all the time.  Of course, many of these items, unlike the Evos, are equipped with railings and other protective measures to prevent falls.   But the design hazards of the Evos are obvious to the reasonable consumer.  The harm of falling from a narrow, handrail-less slide unfortunately should be expected.

Under the risk-utility test, a product’s design is defective if the costs of avoiding potential hazards are foreseeably less than the benefits of taking some safety measures.  There is no question that Landscape Structures could have made the Evos safer.  Theoretically, the manufacturer could have widened, deepened, and added handrails to the product.  If these steps were taken, however, the Evos is no longer an Evos – it’s a normal, ordinary slide.  If the consumer wants a slide, he or she has thousands of slides from which to chose.  Here, the consumer didn’t want a slide, he wanted an Evos.

According to Landscape, the Evos is intended to “promote balance and coordination.”  We have yet to take a ride down a slide that can do the same.

Whether the costs of converting the Evos into an ordinary slide outweigh the benefits of maintaining the very essence of the product is a question of fact.  While there may be some reasonable alternative design, we are not aware of one.  In our humble opinion, if the consumer has concerns about the Evos, then he or she should opt for a traditional slide.  Like all playground equipment, the Evos can certainly be made safer.  But the design of this slide alternative is not significantly more dangerous than the rest of the playground equipment world.

Aside from the alleged defective design, there may be some issue as to whether Landscape failed to warn of the apparent dangers of the Evos.  According to a complaint filed against the company, there is one sticker on the Evos’ ladder demonstrating its proper use.  We doubt too many children are reading warning labels.  The question is whether the label is sufficient to warn the parents.  Admittedly, we haven’t seen the actual label, so we can’t comment on its sufficiency.  Assuming, however, that the label itself is an adequate warning, we have no problem with its location on the Evos’ ladder.  Some may argue that parents are not in the playground structure and lack the ability to see the label.  But think about the alternatives.  One, the label could be applied to the Evos’ “slide.”  This would make the warning visible from the outside of the playground, but how much good is it after the child is already in full descent?  Two, Landscape could make some sort of detached sign.  While it may get the word out, logistically, it seems like a bit of over-kill.

Perhaps, the onus of this situation falls on the parents.  The risks of children playing on the Evos are obvious.  But so too are the risks of small children playing and climbing ladders unassisted on other equipment.  It should be of some significance that of the 16 reported injuries, all of the children are under 8 years of age.  As with any toy, some are better suited for older children.

Let’s allow the parents to decide whether they want their children to play on the Evos.

Following a widely publicized April 2010 explosion on an oil rig, millions of barrels of crude oil spilled into the Gulf of Mexico over a three month period.  As a result, BP and Transocean Limited, the company that operated the rig, face hundreds and hundreds of lawsuits.  At present, these suits mostly allege property damage and lost profits.   But what can we expect from the future?

The answer may be mutant seafood.

According to an investigation by al-Jazeera, fishermen, scientists, and seafood processors are reporting sightings of mutated sea creatures, including eyeless shrimp, clawless crabs, and baby shrimp attached to their mother’s backs. The dispersants used by BP to contain the spilled oil, such as petroleum distillates, are known to be mutagenic. Because the life cycles of shrimp are so short, they have already gone through two or three generations since the spill, allowing time for the chemicals to mutate the genomes. While these helpless creatures lack standing to bring claims for their deformities, these mutations may lead to more serious effects in humans.

Dr. Andrew Whitehead, a professor of biology at Louisiana State University, predicts that the impact on killifish (i.e. shrimp) is “more than likely going to propagate out and affect other species . . . a clear biological effect that could translate to population level long-term consequences.” Eyeless humans? People with missing limbs? Who knows? We here at Abnormal Use have read enough comic books to find it plausible.

It’s too soon to fear that the mutated shrimp will create Zombieland-like conditions. The threat of some ill-effects is there nonetheless. Unfortunately, it doesn’t appear that much can be done to stop it. According to biological oceanographer, Ed Cake, it will be decades until the Gulf returns to pre-spill position

While we can’t predict the magnitude of this situation, it is one that needs to be monitored. The Gulf produces a large portion of America’s seafood. Any negative effects from seafood could lead to potential claims against restaurants, producers, and fisherman, possibly up the chain to BP itself. Only time will tell, but in the meantime, be sure to ask your server whether your fish had eyes before eating them. Or before they eat you.

Sometimes, we here at Abnormal Use feel like we’ve seen it all, as far as crazy lawsuits go.  However, every now and then, a lawsuit comes along that makes us do a serious double take.  This is one of those cases.  A New Jersey couple fled their rental home just one week after moving in and is now suing for the return of their security $2,500 deposit.  The reason?  They claim the home is haunted.

Apparently, Josue Chinchilla and his fiancé, Michele Callan, thought they rented Jersey’s version of the Amityville Horror house. They claimed to have heard bizarre sounds and seen flickering lights. The couple also alleges that a voice whispered, presumably in an ominous fashion, “Let it burn!”  But it gets better (or worse depending on your viewpoint). Chinchilla says that once, a “shapeless dark apparition” tugged at the sheets when he was in bed and grabbed his arm.  The couple left the home one week after moving in, though they had paid a full month’s rent along with the security deposit.

In prosecuting the suit, the plaintiffs hired two sets of paranormal investigators.  These supernatural detectives say something is amiss at the home but disagree whether Chinchilla and Callan are plagued by a “residual haunting or an active haunting.” Now that’s a battle of the experts. I wonder if Plaintiff’s counsel will be able to get these two qualified under Daubert?

The landlord, orthodontist Richard Lopez, counter-claimed against the couple for breaking the lease.  Mr. Lopez’s attorney, David Semanchik, said his client has been renting the house to tenants for more than 10 years and this is the first time anyone has claimed the house is haunted. He thinks Callan and Chinchilla can’t afford the rent and are using the ghost story as cover.

We have to wonder if Mr. Semanchik considered counter claiming for the plaintiffs bringing the ghosts with them to the property?

We all remember Hank Ketcham’s “Dennis The Menace” comic strip.  It was so popular that the strips were collected and published in volumes, such as “Dennis The Menace Vs. Everybody,” depicted above and published way back in 1957.  We assume that with that title, Dennis has sued everybody, making him the Plaintiff.  Is he being cross examined on the book’s cover? We’d like to see that, although we’re a bit disappointed that Dennis has elected not to wear proper courtroom attire.  We wonder what Mr. Wilson would say about that. (Hat tip: Patrick Condon by way of Chuck Klosterman).

If you missed last night’s episode of NBC’s “Community,” you need to seek it out immediately, as it is a hilarious parody of NBC’s “Law & Order” franchise, complete with a send-up of all of that show’s legal cliches.  The best part: The characters stage a mock trial of sorts in which they make many frivolous objections (and then attempt to withdraw their own objectionable cross examination questions). Our favorite: When the character of Annie (played by Alison Brie) impressively begins to lay the foundation for a series of impeachment, her opponent exclaims: “Objection, she’s clearly ramping up to something!” The episode is entitled “Basic Lupine Urology,” a play on the name of “Law & Order” showrunner Dick Wolf.  For the time being, you can watch the episode on NBC’s official website here.

You may recall that in last week’s edition of “Friday Links,” we showed you the cover of Mr. District Attorney #63, published way back in 1958.  On it, the title character presents a suspect, “The Man in the Martian Suit,” to the police sergeant for fingerprinting.  Friend of the blog Kevin Underhill, who runs the seriously funny Lowering The Bar legal humor blog, couldn’t resist weighing on that comic book cover.  See his thoughts here.

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

Kids all across California are breathing a sigh of relief.  California Superior Court Judge Richard Kramer recently dismissed a proposed class-action suit that sought to stop McDonald’s from providing free toys in its signature “Happy Meals.”   As we previously noted, the lawsuit was filed by Monet Parham, a mother of two, and the Center for Science in the Public Interest who accused McDonald’s of unfair and deceptive practices in using toys to promote Happy Meals. The suit alleged  that McDonald’s “exploits very young children” and “harms their health by advertising unhealthy Happy Meals with toys directly to them.”  It further alleged that “children 8 years old and younger do not have the cognitive skills and the developmental maturity to understand the persuasive intent of marketing and advertising.”

This suit would have to rank among the most frivolous we’ve seen in a while.  The Happy Meal is clearly not “unfair” or “deceptive” with respect to the purchaser.  Now, we certainly agree that a bunch of 6 year old kids lack the cognitive skills needed to understand the world of marketing.  You know what else they lack?  The means to purchase a Happy Meal on their own.  It’s not like kids are marching out the front door, walking down the street to the local McDonald’s franchise, slapping down a crisp $10 bill on the counter , and asking for a Happy Meal without an adult of any kind involved in the transaction.  No, the parents are the ones making the decisions to purchase the Happy Meals and allow their kids to eat them.  They should certainly be able to figure out what’s going on.

Ms. Parham was actually quoted as accusing McDonald’s of “getting into my kids’ heads without my permission and actually changing what my kids want to eat.”  She added, “This litany of requests [to eat at McDonald’s] is draining and very frustrating for children. I would like this practice to stop.”  Perhaps the prayer for relief in this case should have included training to assist Ms. Parham with saying “no” to her daughter.

We are glad to see the food police get shot down on this one.  Judge Kramer’s order did not give his reasoning, but you would think dismissing such a stupid lawsuit would be a no-brainer.  Then again, this is California we are talking about here.  Some parts of the state have already take it upon themselves to act as the parents and have attempted to ban the selling of toys in children’s meals that do not meet state nutritional guidelines.

According to media reports, recently, a federal judge denied toy manufacturer Hasbro, Inc.’s request to enjoin Asus from selling its Eee Pad Transformer Prime tablet until a pending lawsuit between the parties is resolved.  As you may know, Hasbro introduced Transformers toys into the marketplace back in 1984.  Since that time, the Transformers franchise has exploded, culminating in three blockbuster movies in the last five years.  So it’s safe to say that the Transformers and their fearless leader, Optimus Prime, are now well-ingrained in most American households.  For some reason, Hasbro has a problem with Asus’ choice for the name of its Android-powered tablet.

In December, Hasbro filed suit against Asus in the U.S. District Court for the Central District of California for trademark infringement, dilution, and unfair competition.  According to the complaint, Hasbro has lent its name and logo for a number of computer-related products including an educational laptop, USB storage drives, and laptop skins.  Asus began marketing a tablet referred to on its website as the “Transformer.”  After discovering the tablet, Hasbro sent Asus a cease and desist letter.  Asus’ response?  It began marketing a second-generation tablet known as the “Transformer Prime,” the exact name of a Transformers television series launched in 2010.  Allegedly, Asus has gone so far as to market the “Transformer Prime” by evoking the home planet of the Transformers, Cybertron.  At this time, it does not appear Asus has contacted Megan Fox in an attempt to make their tablet more marketable.  The case is captioned Autobots v. Decepticon Hasbro, Inc. v. Asus Computer International, Inc., No. CV11-10437PSG (C.D.Ca. Dec. 16, 2011).

Even though the suit is still pending, the judge’s denial of the preliminary injunction should be viewed as a significant victory for Asus.  From some of the reported language of the judge, he has clearly thought this suit through.  According to paidContent.org, the judge stated:

The Autobots are led by the virtuous Optimus Prime character, while the Decepticons follow the powerful Megatron. According to Hasbro, Optimus Prime is intended to epitomize honor, duty, leadership, and freedom.

In the third film, an Autobot character known as “Brains” disguised itself as a Lenovo ThinkPad Edge Plus laptop […] Hasbro developed the “Transformers Prime” animated television series, which began airing in approximately November 2010. The series focuses on the life and story of the Optimus Prime character. “Prime” was added to the “Transformers” mark in the program’s name to emphasize this focus. Thus far, the series has received several Emmy nominations and awards and has been aired in 170 countries.

But:

There is nothing gimmicky about the Eee Pad Transformer or the Eee Pad Transformer Prime, nor can it be said that there is any similarity in the use or function between Hasbro and Asus’s products.

Further, the Court noted that “transformer” was an accurate description of the Asus tablet because the tablet could “transform” into a semi-truck laptop.

As a matter of full disclosure, we here at Abnormal Use must admit that we are slightly biased in this case.  As children of the ’80s and huge fans of Megan Fox, the Transformers are near and dear to our hearts.  We can’t hear the word “transformer” without suspecting the noted object to be a robot in disguise.  Because of this, we must throw our support behind Team Hasbro even if we have no legal basis for doing so.

Sure, the judge is right.  No one really believes Asus’s tablet is going to turn into an Autobot or a Decepticon.  But who thinks the products actually authorized by Hasbro would?  Chevrolet marketed an authorized Transformer Camaro following the release of the first Transformers film, but no one expected their car to turn into Bumblebee.

We won’t go so far as to suggest that Hasbro should have full control over the word “transformer.”  In this case, however, Asus had some interest in cashing in on the Hasbro product’s success.  Yes, their product “transforms” so to speak, but we are kidding ourselves if we think the Transformers didn’t have some bearing on the name choice?  Asus named two successive products with infamous Transformers lingo and used a Cybertron marketing campaign.  Coincidence or clever word choice?