• 9th Circuit says the U.S. may be held vicariously liable for the sexual harassment of asylum applicants by an INS officer. "California law makes the United States bear the cost of [Thomas] Powell’s conduct, unauthorized but incidental to the asylum system." Lu v. Powell
• Nevada man sues the Mormon church over a back injury he suffered performing baptisms for the dead. The church was negligent in not warning Daniel Dastrup that "the repetitive motion required for performing baptisms for the dead could cause serious damage to a person's back."
Dastrup v. LDS Church
• Attorney says he was harassed by his boss at a Newport Beach, Calif., law firm because refused to attend a seminar "where he would be stripped naked, not allowed to leave, be required to discuss details of his sex life, handle a wooden dildo, and potentially allow other men to touch his genitals."
Eggleston v. Bisnar/Chase
• Parents of a 10-year-old boy who witnessed a killer whale's fatal attack on a trainer sue Sea World Orlando for infliction of emotional distress. "Without question, it was reasonably foreseeable and in fact predictable that an attack such as this one by a killer whale with the tendencies of Tilikum was inevitable." Connell v. Sea World
• Denver judge dismisses Oklahoma City bomber Terry Nichols's civil rights claims against prison officials for denying him a high-fiber diet.
Nichols v. Federal Bureau of Prisons
• Illinois teenager with cerebral palsy sues the Special Olympics for refusing to let her play basketball with the help of a service dog.
Youngwith v. Special Olympics
• Montana judge sets aside a government decision removing protections for the northern Rocky Mountain gray wolf. The Endangered Species Act "was not intended to sow the dragon's teeth of strife or to plant the seeds of future conflicts that have given rise to this case."
Defenders of Wildlife v. Salazar
• San Francisco judge dismisses a cereal consumer's false advertising suit. "[T]here is nothing in the packaging or marketing of Cap’n Crunch that would in any way deceive a reasonable consumer into believing that the cereal contains or derives nutritional value from real fruit." Werbel v. PepsiCo
• Iowa judge says a sheriff denied the applications of a father and son for concealed weapons permits in retaliation for their political activism. "This is a great reminder that the First Amendment protects the sole individual who may be a gadfly, kook, weirdo, nut job, whacko, and spook, with the same force of protection as folks with more majoritarian and popular views." Dorr v. Weber
• 5th Circuit rules that a school district violated the religious freedom of a Native American boy by requiring him to wear his long hair in a bun on top of his head or in a braid tucked into his shirt. The boy "has a sincere religious belief in wearing his hair uncut and in plain view."
A.A. v. Needville Ind. Sch. Dist.
 
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No Products Claim for "Defective" Atkins Diet |
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"Evel Kanyevel"
Hiphop star Kanye West includes enough elements of parody in the video for his hit song “Touch the Sky” to support a solid defense against a trademark infringement suit filed by stunt daredevil Evel Knievel.
In the $1 million video, which co-stars Pamela Anderson, West plays “Evel Kanyevel,” a stuntman dressed in a Knievel-esque white jumpsuit who vaults a canyon in a rocket. Knievel famously tried to jump the Snake River Canyon on his “skycycle” in 1974.
West's imitation is not a form of flattery to Knievel, who claims the video infringes on his trademarked name, his likeness and the trade dress of his jumpsuit and tarnishes his reputation with its “vulgar, sexual, and racially-charged” images and language.
The complaint, filed Dec. 8 in Tampa federal court, seeks injunctive relief and unspecified damages for violation of trademark and publicity rights. "That video that Kanye West put out is the most worthless piece of crap I've ever seen in my life, and he uses my image to catapult himself on the public," Knievel, 68, fumed.
Parody is not the affirmative "fair use" defense in trademark cases that it is in copyright cases. Courts may consider it as one element in the analysis of whether the alleged trademark infringement is likely to create confusion in the marketplace.
A consumer “would not be confused but amused” by a true parody, the 7th U.S. Circuit Court of Appeals ruled in Nike v. "Just Did It" Enterprises, 6 F.3d 1225 (1993).
Knievel alleges West used his mark “with the intent of causing confusion, mistake and deception and to reap the benefit of Evel Knievel's good will,” and his attorney, Richard E. Fee, said a claim that the video is a parody won't fly because
A parody is something that's characterized by comedic content and that video is not a comedy. It's a music video used to sell Mr. West's musical works.
But in the seminal case of Campbell v. Acuff-Rose Music, 510 U.S. 569 (1994), the U.S. Supreme Court accepted a rap song as parody which “reasonably could be perceived as commenting on the original or criticizing it, to some degree.”
West's video is a work of commentary which, taking its cue from the song's sampling of the 1971 hit “Move On Up,” pokes fun at such '70s cultural phenomena as blaxploitation movies, ABC's Wide World of Sports -- and Evel Knievel stunts.
At one point, two Afro-haired black women berate Kanyevel for having a white wife (played by Anderson) –- perhaps a wry comment on West's rumored relationship with the “Baywatch” star.
Knievel may have missed such subtleties but, to paraphrase Nike, his trademark protection does not amount to a right not to be ridiculed.
By Matthew Heller
12/13/06
Distinguishing between the tangible and intangible qualities of a book, a New York judge has decided that products liability law does not apply to the case of a businessman who blames the Atkins diet for his heart problems.
The unusual products case relied heavily on quotes from "Dr. Atkins' New Diet Revolution." The book and related food products, Jody Gorran alleged, are defective in that they “put at least a substantial minority of persons ... at increased risk of cardiovascular disease and other illnesses.”
Gorran sued the estate of the late Dr. Robert Atkins and the publisher of the book, claiming he developed serious heart problems as a result of following the popular, low-carb diet for two years. He had to undergo an angioplasty to repair a clogged artery.
But in dismissing the case, U.S. District Judge Denny Chin noted that products liability law “focuses on the 'tangible world.'” While a defect in “a book's tangible qualities -– the cover, pages, and binding –- could potentially give rise” to a claim, he said in his opinion,
The intangible qualities of a book, however – the ideas and expressions – are not products for purposes of products liability law.
The decision was consistent with the federal appeals court precedent of Winter v. G.P. Putnam's Sons, 938 F.2d 1033 (1991). A Pennsylvania judge also dismissed claims against the publisher of "The Last Chance Diet" in Smith v. Linn, 563 A.2d (1988).
“Imposing liability for physical injuries caused by the ideas contained in a book would inhibit those who wish to share thoughts and theories,' for no author would write on a topic that could potentially result in physical injury to the reader,” Chin wrote.
Gorran originally filed his complaint in Florida state court, but the case was transferred to the federal courts after Atkins' publisher sought bankruptcy protection. A claim for negligent misrepresentation also failed, with Chin finding that the diet book's content “is noncommercial speech entitled to full First Amendment protection.”
The judge could not resist an aside about the Atkins weight-loss formula:
The Court notes that it has had success with its own, much simpler diet, which can be described in four words: “Run more, eat less.”
By Matthew Heller
12/13/06
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Court Raps Judge Over 'Moral' Views in Adoption Case
The Georgia Court of Appeals has rejected the reactionary views of a family court judge who ruled that a foster parent could not adopt a child because her out-of-wedlock relationship with a man was “immoral.”
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Off With His Head! Woman Sues 'Mad Hatter' Actor
Experimental theater clashes with premises liability law in the case of a Kentucky woman who claims she was injured while watching a performance of a circus-inspired play when one of the actors balanced his knee on her head.
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Charity Worker Accuses CEO of Hypnotic Seduction
A former charity worker may be pushing the limits of sexual harassment law by alleging that her boss required her to participate in “relaxation sessions” on his “magic couch” during which he hypnotized and molested her.
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Appeal is Expert's Latest Challenge to Judges
Expert witness Dr. David Egilman was previously successful in showing he had standing to appeal a judicial order in a case in which he was not a party — but that case may not help him in his latest challenge to a trial judge.
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Plaintiff's Expert Files Appeal in 'Popcorn Lung' Lawsuit
A controversial expert witness for plaintiffs has filed an unusual non-party appeal of a Washington state judge's decision finding his theory that snackers can contract lung disease from exposure to microwave popcorn is not scientifically sound.
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Philly School Sued Over Race Attack on Student's Mom
Taking civil rights law to what may be an extreme, an Asian-American woman is alleging a Philadelphia high school's tolerance of racism rendered her “helpless prey” to African-American students who attacked her when she picked her child up from the school.
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'McSteamy' Sex Tape Suit Cools off With Settlement
Acting couple Eric Dane and Rebecca Gayheart have dropped a $1 million lawsuit against Gawker.com for publishing a videotape featuring them in a nude threesome with a friend after the gossip website agreed to take down the much-viewed posting.
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McCourt v. McCourt
Court: L.A. Superior
Subject: Dodgers divorce
Pom Wonderful v. Welch Foods
Court: USDC, C. Calif.
Subject: False advertising
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McCourt v. McCourt
Date: 8/30/10
Court: L.A. Superior
Hearing: Dodgers divorce trial
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