If It's a Foot Long, Why Can't it be a "Footlong"?

Subway's lawyers have notified Casey's General Stores of Iowa that they must cease and desist from using the term "Footlong" to refer to their sandwiches that are a foot long. Casey's has responded by seeking a declaratory judgment that the word "footlong" is a generic description and that Subway's attempted trademark claim is warrantless.  What do you think?







 

 

False and Deceptive Advertising?

In 2009, Ralph Lauren fired supermodel Filipa Hamilton claiming that at 5'10'' and 120 lbs, she was too overweight to represent the fashion line. Yet, Lauren continued to use her severly photoshopped image (below) where her waist appears to be about 10" around and her hips are smaller than her head.  Is it false and deceptive advertising to visually portray the human body in this severly altered state without a disclaimer?

Photoshopped image of Filipa Hamilton on right:

Delegating Contract Duties: Fight Fiasco Amid Tattoo Turmoil

My basic hypothetical for delegation of contractual duties goes something like this:

You have a contractual obligation to mow your neighbor's lawn for $35.  But, when you wake up in the morning it's a nice day so you decide to go to the beach.  Before you leave, you delegate the duty to mow the lawn to your little brother.  Must the neighbor accept performance by your little brother? etc.

Well that simple hypothetical will likely give way to this one:

You have received a $10,000 advance from a promoter who has booked you to engage in a prizefight. On the day of the fight, you delegate the duty to perform to your twin brother. The promoter recognizes that the fighter who showed up for the fight is not the fighter that he engaged because your twin brother is missing your distinctive tattoos that were featured prominently in pre-fight publicity.  Must the promoter accept performance by the twin stand-in?

In the "truth is stranger than fiction" category, meet the Canseco Brothers, Jose and Ozzie.  Jose, the more famous of the retired major league baseball playing brothers, has been making a showing on the prizefighting side show circuit. These geniuses actually cooked up this "Parent Trap" style switcheroo.

One of the exceptions to delegable duties is for those involving personal judgment and skill. Including, perhaps, those involving questionable judgment, suspect skill and ... distinctive tattoos.

The Canseco twins:


Jose and his tats (one can see how they thought no one would notice):



Apparently Ozzie (see, no tat) at the fight venue, prepared to perform Jose's contractual obligation:
Source: http://larrybrownsports.com/darwin-nominations/ozzie-canseco-stands-in-for-twin-brother-jose-canseco-in-boxing-scam/60696/attachment/ozzie-canseco-boxing1


One of the Canseco brothers (purportedly Jose) fights Danny Bonaduce of "Partidge Family" fame wearing a body suit simulating tattoos.

Law Lessong - Mirror Image Rule

This simple video and song from a Power Point presentation can help students consider the application and effect of the Common Law "Mirror Image Rule" to acceptance of contract offers. Learn more about Law Lessongs from the post found here. More Law Lessong videos may be found at my youtube channel. Please feel free to use them in the classroom or as assignments or in any way that they work for you as an educational resource.

Law Music Video - Talk to the Lawyer

This week's installment in the "Law Music Videos" series is Talk to the Lawyer by David Lindley. This is the classic popular cultural view of lawyer as "professional liar." Yet, the singer still seeks out the lawyer's services to address his legal problems. Law music videos played before your class starts will positively contribute to learning.

True Nature of "Discovery": But Don't Expect a Photocopy

Thanks to the WSJ Law Blog for this delightful example of the true nature of discovery in civil litigation.  This kind of conduct gives some credence to the words of the late US Supreme Court Chief Justice William Rehnquist:

Under our adversary system the role of counsel is not to make sure the truth is ascertained but to advance his client's cause by any ethical means. Within the limits of professional propriety, causing delay and sowing confusion not only are his right but may be his duty.

Walters v. Nat. Assoc. of Radiation Survivors, 473 US 305 (1985) quoting Friendly, "Some Kind of Hearing," 123 U. Pa. L. Rev. 1267, 1287-1290 (1975).

Click on the image below to read a portion of the deposition transcript where the deponent claims to not understand the reference to a "photocopy machine."

Shopkeeper's Privilege

Why do we need to provide a Shopkeeper's Privilege in false imprisonment cases? Maybe it is because of this:



Is there anyone working at this store to detain these shoplifters?

Reporter Tweets That Ref Cheats

Yesterday's post was a Law Lessong about a public figure's burden of proving actual malice in a defamation claim. "Actual Malice" has been defined as "publication of defamatory material 'with knowledge that it was false or reckless disregard of whether it was false or not.'" (See also an earlier post on NY Times v. Sullivan). To protect themselves from claims of "reckless disregard," reporters should check sources and verify facts before publishing them.  However, today reporting often happens simultaneously with the event occurrence through use of Twitter. What happens when a reporter tweets a fact that he or she has observed or heard without determining if there is corroboration from another source for what was observed or heard? In this case, a sports reporter at an NBA game tweeted that a referee told a coach that he would make a "make-up" call to atone for a bad call that was made earlier in the game. This allegation implies that a referee would make a false call to affect the outcome of the game. (Interesting ethical conundrum: A referee is bound to call the game fairly based on the play.  If a referee makes a call that he later realizes was wrong, is it ethical or unethical to make a call against the benefitted team to "even things out?"). The referee has sued for defamation. He denies making the remark.  Ostensibly, the coach denies hearing the remark. With no corroboration, has the reporter acted with actual malice in tweeting a fact that he personally experienced but cannot prove? This kind of reporting is distinguishable from expressing an opinion about a referee's call - which would not be actionable.

The Tweet in question:


Bill Spooner: NBA Referee/Plaintiff:


John Krawczinski: AP reporter:

Law Lessong - "Public Figures Need Malice"

This simple video and song from a Power Point presentation can help students consider the "actual malice" requirement for public figures to prove a defamation claim. Learn more about Law Lessongs from the post found here.  More videos may be found at my youtube channel. Please feel free to use them in the classroom or as assignments or in any way that they work for you as an educational resource.

Law Music Video: Law of the Land

This week's installment in the "Law Music Videos" series is Law of the Land by The Temptations. Law music videos played before your class starts will positively contribute to learning.

"The Nation Was Falling Apart"

Setting the table for the Constitution is this video that warns, ominously, "the nation was falling apart." Despite the drama, the video concisely describes the dilemma's leading to the call for the Philadelphia Convention.

Law Music Videos - In Honor of the Day

In honor of St. Patrick's Day, this week's installment in the "Law Music Videos" series includes law songs with Irish origins. Law music videos played before your class starts will positively contribute to learning.

Democracy: Rule of the Majority?

In middle school I learned that democracy was "the rule of the majority." Somehow, even then, that concept intuitively did not sit well with me. It struck me that "rule of the majority" meant that 5 kids on the playground could vote 4-1 to beat up the 5th kid and steal his lunch money everyday. In 7th grade, I was far more likely to be the 5th kid than 1 of the 4. Even then I was certain that a functioning democracy needed a counter-majoritarian institution to protect the basic rights of the unpopular and disrespected. Maybe that is why I ended up drawn to the law!

Law Lessong - Business Enterprise Song

This simple video and song from a Power Point presentation can help students review the characteristics of the principal forms of business enterprises.Learn more about Law Lessongs from the post found here. More law lessong videos may be found at my youtube channel. Please feel free to use them in the classroom or as assignments or in any way that they work for you as an educational resource.

"Act of God" #2

This compelling video of the recent tsunami in Japan illustrates how mankind is humbled by the forces of nature. Law is impotent to prevent or repair the harm suffered by these unpredictable occurences. See also, Act of God #1.

Law Music Video - "Aint No Reason"

This week's installment in the "Law Music Videos" series is Ain't No Reason by Brett Dennen. This song may be more social commentary than a "law song." However, as Brett laments over why things are the way they are and expresses the hope that "love will set him free"  I can't help but think about the role that law can and must play in shaping society. Law music videos played before your class starts will positively contribute to learning.

Citing Corporate Social Responsibility, Air CanadaThreatens to Pull NHL Endorsement

In a National Hockey League game, Boston Bruin player Zedeno Chara delivered a check on Montreal Canadien player Max Pacioretty.  The incident is shown in the video below.  Pacioretty was seriously injured.  Chara received a major penalty but no fine or suspension from the league.  Citing "Corporate Social Responsibility," Air Canada, a major sponsor of the NHL issued the following letter to the NHL:

We are contacting you to voice our concern over [the] incident involving Max Pacioretty and Zdeno Chara at the Bell Centre in Montreal. This is following several other incidents involving career-threatening and life-threatening headshots in the NHL recently. From a corporate social responsibility standpoint, it is becoming increasingly difficult to associate our brand with sports events which could lead to serious and irresponsible accidents; action must be taken by the NHL before we are encountered with a fatality. Unless the NHL takes immediate action with serious suspension to the players in question to curtail these life-threatening injuries, Air Canada will withdraw its sponsorship of hockey.



This incident is arguably distinguishable from the Todd Bertuzzi incident. The following video raises an issue regarding consent in a civil battery claim. How much physical contact do you consent to when you lace up the skates? Or, as in the clip further below, you step on the soccer field? At what point does the physical contact go beyond that to which consent may be presumed?

Law Lessong: "Non-Competition Clause"

In expanding on yesterday's topic, here is a simple video and song from a Power Point presentation to help students reflect upon the balancing test that courts employ in considering enforcement of a non-competition clause. Learn more about Law Lessongs from the post found here.  More videos may be found at my youtube channel. Please feel free to use them in the classroom or as assignments or in any way that they work for you as an educational resource.

Non-Compete Clauses

You have a key employee with whom you have entrusted the secret gellato recipe or the valuable customer list or in whom you have invested significant specialized training.  How do you protect yourself from your employee, now highly trusted, later becoming a damaging competitor? Dilbert's pointy-haired boss has some ideas:

Featured Case - White v. Samsung

The White v. Samsung case is well known and carried in a number of texts.  Vanna White, the hostess of TV's Wheel of Fortune, sued Samsung and its advertising agency for producing, without her permission, a print ad that featured a robot dressed in a blonde wig and evening gown, and standing in Vanna's signature pose beside the Wheel of Fortune letter board. Where, as here, the ad did not use Vanna's likeness or name, the 9th Circuit determined that Samsung's actions may still constitute an infringement upon the common law right of publicity. My favorite line from the opinion shows the court's willingness to protect the publicity right even though the judges are clearly unimpressed by Vanna's "talent."

Television and other media create marketable celebrity identity value. Considerable energy and ingenuity are expended by those who have achieved celebrity value to exploit it for profit. The law protects the celebrity's sole right to exploit this value whether the celebrity has achieved her fame out of rare ability, dumb luck, or a combination thereof.

The court relied heavily on Midler v. Ford.

Samsung filed a motion for re-hearing.  Though denied, the thoughtful dissent is oft cited.

A related case that students may be interested in hearing about is the Keller case involving NCAA Athletes' publicity rights in the use of their "images" in video games. Anastasios Kaburakis from St. Louis University has a recent publication on that case.

For those of you who have searched for many years for a copy of the original Samsung ad, I hope you will be pleased to see, below, an image that I believe to be the full ad minus only the caption as quoted in the decision, ""Longest-running game show. 2012 A.D." Source.

See updated post here for a copy of the print ad.



Thanks to Ross Petty at Babson for sharing the following complimentary image of Vanna White:

Featured Case: Loving v. Virginia

In this well known case, the US Supreme Court struck down  all anti-miscegenation statutes on both Substantive Due Process and Equal Protection grounds.  My favorite quote from the case is this:

The freedom to marry has long been recognized as one of the vital personal rights essential to the orderly pursuit of happiness by free men [and women]. Marriage is one of the "basic civil rights of man[kind]," fundamental to our very existence and survival.

There is a fair amount of video material available on this case. I have chosen to post a few videos that I hope you will find useful for presenting this case in class. First, there is an original ABC news report on the case from 1967. The second is a live performance by singer/songwriter Nanci Griffith of her song, The Loving Kind, written about Midred and Richard. This clip has already appeared and disappeared from YouTube a couple of times.  So, if it is here when you read this post, and you want to use it for educational purposes, you should download it for classroom use.  The third is The Ballad of Mildred Loving. Songs about Supreme Court cases are pretty rare, but this case has inspired at least two.  The last video makes a comparison to same-sex marriage restrictions and an appeal to keep religious beliefs from impacting civil rights. There are a number of good websites with personalized stories and images as well. Three may be found here, here and here.  Podcast.

Law Music Video - Talk to My Lawyer

This week's installment in the "Law Music Videos" series is Talk to My Lawyer by Chuck Brodsky. I am drawn to the "Jury, jury, Hallelujah"  refrain.

Law music videos played before your class starts will positively contribute to learning.

Law Lessongs: Due Process and Equal Protection

These videos and songs from Power Point presentations can help students consider the elements and parameters of a Due Process or an Equal Protection claim (while having a bit of fun). Learn more about Law Lessongs from the post found here. More videos may be found at my youtube channel. Please feel free to use them in the classroom or as assignments or in any way that they work for you as an educational resource.

What is "Service of Process?"

"Service of Process" can certainly be an odd term to a 20 year old undergraduate student.  This first video puts some flesh on the bones of a bare definition of process serving - creating, in my opinion, a richer understanding of this oft overlooked cog in the machinery of the legal system.



This video shows that serving process can get . . . interesting.

Westboro Baptist Church Protests at Military Funerals Protected by First Amendment

The SCOTUS, in an 8-1 decision (Alito dissenting) upheld the First Amendment Rights of the Westboro Baptist Church members to picket military funerals.  The protestors; tactics include proclaiming that the slain soldier has gone to "hell" because he fought for a country that supported a homosexual agenda. 



 Westboro Baptist Church Protestors:


Snyder and related case prior to this decision:



Al Snyder speaks to the press on day of oral argument:

Power of Attorney

Beware of giving the General Power of Attorney when a Limited one will do.  I use this in the discussion of express authority of an agent.

Jurors Give Passes to Defendants With Glasses

In the category of "it is better to look good than be good," the NY Daily News reports that criminal defense counsel are having their clients wear glasses in front of jurors to look less dangerous.  This tactic fuels a discussion of form over substance in the courtroom, as was raised in this earlier post. Below are some criminal defendants with glasses:

Jeffrey Dahmer with glasses and without.  Does he look less dangerous?


Eddie Ray Routh, killer of "American Sniper"Chris Kyle, at arrest and at trial


"Green River Killer:"


Jodi Arias