The Search For Immediate Cold Relief: Realistic Or Just Another Atlantis?

According to the old axiom, there is no cure for the common cold.  Nonetheless, cold medications dominate the shelves of any pharmacy.  While there may be no “cure,” pharmaceutical companies have made billions of dollars offering products aimed at relieving cold symptoms.  At least, in theory.  According to a class action lawsuit filed in the British Columbia Supreme Court, the claims of Canada’s best selling cold medication aren’t worth snot.

The proposed class filed suit against Valeant Pharmaceuticals and Afexa Life Sciences way back in 2012 alleging that the companies misled consumers into believing that the cold medicine known as Cold-FX could bring “immediate relief” for cold and flu symptoms.  According to the complaint, the defendants commissioned research which they represented to consumers as providing “science” to back the product.  While the research may support a claim that Cold-FX may reduce the frequency, duration, and severity of cold and flu symptoms, the science allegedly did not support the “immediate relief” representation.  Moreover, the plaintiffs allege that the defendants omitted the fact that research participants took Cold-FX over periods ranging from 2-6 months and that prolonged use of the drug was necessary to experience any added benefits.  Valeant and Afexa have since removed and representations regarding “immediate relief” from product packaging.  However, there are still no disclosures about how long the drug must be administered.  Back in February, the plaintiffs moved to amend their pleadings to assert additional causes of action for fraud, fraudulent misrepresentation, and deceit.

According to a report from the National Post, the defendants filed an affidavit in support of their product in which the cited their popularity on social media.  Apparently, Cold-FX has  24,000 likes on Facebook and 26,000 mentions on Twitter. One comment said, “Cold-FX is like some miracle pill,” and another claimed it “knocked my cold away.”  Case closed.

We here at Abnormal Use are interested to see what will come of this lawsuit. As people who often find themselves falling victim to colds, we would sure love to find a product that actually could provide “immediate relief.” We assume nothing like this exists now nor will it ever be created. As such, when we see a product claim that it provides “immediate relief,” we take it as mere puffery. Of course, maybe they haven’t heard of the old axiom in Canada.

Let the Games Begin! Canadian Olympic Committee Sues The North Face

The Canadian Olympic Committee (COC) is none too happy about The North Face’s design and marketing choices for some recently released apparel, which it believes is an attempt to mislead people into thinking the company is an official sponsor of the 2014 Winter Olympic Games.  The COC has filed suit in a Canadian Court alleging that the apparel and the marketing surrounding it violate numerous Olympic trademarks.  The dispute is over The North Face’s clothing line originally dubbed its “2014 Village Wear Collection,” which used the marks “RU/14,” and “2.7.14” (the date of the open ceremonies).  The designs also prominently feature national flags and the items were allegedly identified in marketing materials with names such as “Men’s Sochi Full Zip Hoodie.”  Here is an example of one of the items from the collection. The COC claims that the words, images, and symbols were used by The North Face in a way that was “deliberately designed and calculated to mislead and confuse the public into believing [The North Face] is an official sponsor [of the 2014 Winter Olympics].  The North Face has renamed the line the “International Collection” in response to complaints by the COC but apparently has not changed any of the designs and has refused to stop selling the products. The COC is seeking damages in an unspecified amount, as well as an injunction prohibiting the further sale of the products.

The North Face has released a statement on the matter denying liability.  The director of brand communications said in the statement:

The North Face has been a longstanding supporter of the free-skiing movement but we are not an official sponsor of the Canadian Olympic Committee or Team Canada and never indicated that we were.  We do not agree with the COC’s claims and are disappointed that they have taken this action.”

This whole lawsuit is not that surprising given that the Olympics have become all about big big money in the past decades and the International Olympic Committee is fiercely protective of its brand.  The Olympic brand has a lot of value associated with it and companies spend oodles of money to become official Olympic sponsors.  Although all of the individual actions of The North Face may have been okay on their own, they may actually be in trouble when you look at the apparel and marketing campaign as a whole.  Perhaps most troubling for The North Face is the fact that it allegedly had a product catalog that stated the product line “captures the international spirit of the Olympic Games.”

Doh! FOX Wins Big in “The Simpsons” Copyright Infringement Suit

Earlier this month, FX announced that all 530 episodes of “The Simpsons” will be available for to legally watch on the Internet.  All of “The Simpsons” episodes will be available on FXX, a new channel in the FX Network, and through FXNOW, a recently released video on demand app. The deal could cost FX as much as $1 billion dollars.  To date, it has never been possible to legally watch “The Simpsons” on the Internet. There is that word again . . . Legally.

Until recently, a Canadian gentleman has run “Watch The Simpsons Online” and “Watch Family Guy Online.”  The websites launched in 2008 and 2009, respectively.  As the old moniker goes, pigs get fat, hogs get slaughtered.  Both sites earned a combined 87 million visitors.  Though “Watch The Simpsons Online” has dealt with legal issues since 2008, it has operated more or less without impediment until October 2013, when FOX filed a copyright infringement lawsuit in the federal court of Canada.  Shortly thereafter, on October 9, 2013, the site operator’s home was raided.  The site operator did not appear in the lawsuit and was presumably put into the Canadian version of default.  In his absence, the federal court awarded FOX over $10.5 million dollars.

The site operator is unable to pay the judgment, and apparently, he did not make a sustainable living from the sites.  He has since stated that the experience is the worst thing imaginable and that he simply wanted “the dinosaurs would just give their consumers what they want — which is to be able to stream their videos online easy, fast, worldwide.” FOX has showed no signs of letting up and is currently attempting to execute the judgment.  According to reports, the site operator stated that “Fox are pursing for the money and they are doing so as hard as they possibly can. They’ve ruined my life and continue to do so as long as they don’t leave me and my family alone. As it’s been referenced by a lawyer: ‘they are killing a fly with a nuke’.”  The same reports indicated that FOX’s attorney stated that “the significant judgment in this case points up the risk courted by those who engage in Internet piracy, in particular for commercial purposes.”

While we disagree with converting the intellectual property of another, especially for financial gain, the site admin has a point.  Both the number of visitors to the sites and the potential $1 billion value of the FX deal, make you scratch your head at why FOX waited this long to provide access to “The Simpsons.”  Either way, it’s probably wise just to wait until August to get your fill of The Simpsons. Also in case FOX reads this, we here at Abnormal Use have never heard of either site or the ability to stream “The Simpsons” prior to this story. We promise.

Facebook Service Not Exactly Personal

During a recent bout of boredom, we discovered the Wikipedia page for “Service of Process.”  After reading through the standard fare for manner of service, we came across this interesting tidbit:

Courts in at least two Canadian provincial jurisdictions have allowed for substituted service via Facebook.

Service via Facebook?  Certainly, it can’t be legitimate to write, “You’ve been served,” on someone’s Facebook wall and have that hold up in a court of law.  We thought that this must be a case of a wiki author having fun editing a page to poke fun at Canadians, right?  Wrong, the Court of Quebec did in fact hold back in 2011 that Facebook messaging was an appropriate method for service of process.

In Boivin v. Scott et al., a Canadian plaintiff for whatever reason encountered difficulty serving a Florida resident.  In response, the Quebec court held (via Google Translate, mind you):

The only way for the plaintiff to the defendant to convey the original application is through his Facebook address. Indeed, it is a direct and convenient way to notify the defendant that proceedings are taken against her so she could prepare his defense and to be heard, which meets the main purpose of the service.

The court was certainly correct in that Facebook service would be direct and convenient – at least for the plaintiff.  The defendant gets to finally look forward to a Facebook notification that has nothing to do with Farmville.  Of course, that only applies if the plaintiff served the correct Facebook profile in the first place.

As technologically savvy as we may be, in our opinion, due process should never take a back seat to convenience.  There are reasons why personal service is preferred and that substituted service should only be used as a last resort.  The rules are designed to protect defendants, making sure they are properly notified of suits against them.

Service by Facebook, while convenient for the plaintiff, lacks these safeguards.

Facebook service simply has too many questions.  Here are a few that come to mind:

  • Just because a Facebook profile looks to be that of the defendant, who can guarantee it is?  Facebook contains millions of accounts, many real and many fake.  Serving the Facebook account of “John Doe of Greenville, SC” does not assure that the correct John Doe was actually served.
  • Not that plaintiffs would ever be so sinister, but what prevents a plaintiff from making a Facebook profile for the defendant he wants to serve for the purpose of service?  If you can make a Facebook page for God, making one for the defendant is not outside the realm of possibility. What safeguards exist to guard against such malfeasance?
  • Lastly, even if a person is served to the proper Facebook account, how does one know that the defendant actively uses the account and would find the complaint?  Certainly, there are tons of people with Facebook accounts who haven’t accessed them in years.  The accounts still show as active even though they have not been officially de-activated.  Do we really want to equate Facebook profiles in the same vain as a last known address? Plus, what if the account is active, but the message ends up in the somewhat hidden “Other” mailbox?

With all these questions, service by Facebook is not a process we would feel comfortably advocating.  Unfortunately, however, we think that this may be the wave of the future.  At least one U.S. court has ordered service of process by Facebook message.  We expect many more to come.

The Case of the Killer Toothbrush

Every so often, I read a news story about a lawsuit that makes me think I’ve inadvertently stumbled onto the satirical publication The Onion.  This is one of those stories.

According to this report by CBC News out of British Columbia, a woman named Saliha Alnoor is suing the Colgate-Palmolive Company for injuries she sustained when her toothbrush allegedly broke in two places in her mouth, slicing her gums and causing her to lose consciousness.

Alnoor apparently hired an engineer, who has done extensive testing on the toothbrush and determined that it contains a design defect that caused the brush to break.  Despite this damning would-be testimony, however, Alnoor is now representing herself against the company, in what her family describes as a “David and Goliath” battle.

After initially complaining to Colgate, the company sent her a $20 coupon.  Later, when she became particularly serious about her claims, the company offered to settle her case for $500.  Can’t you just smell the fear?  It smells oddly like mint.

This is one case we’re going to have to watch.  I wonder what Wacky Warning Label might come out of this case.

News from the Hot Coffee Front: McDonald’s Settles Canadian Lawsuit

In recent weeks, no beverage on earth has been more widely discussed, analyzed, and investigated than hot coffee.  Indeed, it has been the subject of a recent HBO documentary and a point of contention on the many legal blogs that elected to review the film.  Just as the the media frenzy had finally begun to subside, hot coffee litigation is once again back in the news. It never seems to end, does it?

The Toronto Sun recently reported that McDonald’s has settled a claim with a Quebec woman after hot coffee spilled onto her leg back in May.  Reportedly, the woman ordered several cups of coffee from a McDonald’s drive-through.  As the attendant handed her the beverages,  the cardboard carrying tray allegedly buckled, spilling three cups of coffee into her car and onto her person.  Following the spill, she was transported by ambulance to an area hospital for second-degree burns.  She demanded $12,313.24, and the fast food company’s insurer honored the request.

Let’s not get ahead of ourselves and claim this settlement is evidence that McDonald’s serves an unreasonably dangerous product.  There are clearly other factors at play here to explain McDonald’s willingness to expeditiously settle this woman’s claim.  First, there is no real dispute among credible sources that hot coffee can cause burns when spilled onto someone.  Second, after all of the recent bad press, McDonald’s may have an incentive to tidily dispose of such matters. Let’s remember: McDonald’s has taken its share of criticism for refusing to settle medical claims due to hot coffee burns.  Be it right or wrong, McDonald’s needs to temper the potential for any additional bad press.

Finally, this is not your typical Stella Liebeck-style hot coffee case.  The Quebec woman – the potential plaintiff – was not herself the spiller of the coffee.  Not only was the coffee reportedly spilled by a McDonald’s employee, but also, the spilling may have been the result of an apparently dysfunctional carrying tray.  Obviously, the facts are subject to discovery, and there may be a number of unknown factors, but at present, there is no evidence from the Toronto Sun article suggesting the woman played any role in the spill apart from being the victim.  Even if McDonald’s maintained the position, often asserted here at Abnormal Use, that coffee is a beverage meant to be served hot, it still must account for the possible negligence of its own  employee and the reportedly defective tray it chose to carry said beverage.

Nevertheless, this case may be exploited to advance the questionable proposition that hot coffee is, by its nature, unreasonably dangerous and defective.  Let us remember, however, that coffee is meant to be served hot and when it is spilled, it will burn.  That is simply the nature of the product.