Certainly, we know very little of the merits of the case at this point. Not that it would absolve all liability, but we do wonder whether the hair melting occurred after the first use or whether it was the result of the entire 30-day process. It will also be interesting to see the merit behind the “permanently destroyed” allegation. If the product had worked as advertised, straightening the hair by breaking down disulfide binds in curly hair, and the user didn’t like the result, would that also be damage? If so, it seems as if this analysis could be extended to any hair product such as hair dyes when repeatedly used. Moreover, last we checked, hair grows back, so how can the damage be permanent? Clearly, we here at Abmormal Use pay close attention to hair.

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Apparently, the juror – identified in the opinion as “Juror 234” was questioned during voir dire about her relationship with anyone involved in the case.  She admitted during questioning by the trial court that she knew “some of the [the victim’s] family, not close but I do know them.”  She described the relationship as “casual” and noted that she worked with the victim’s nephew.

Sometime after the trial, the Appellant’s lawyers discovered that Juror 234 was one of the victim’s wife’s Facebook friends.  (We wonder if his counsel investigated all of the juror’s social media presence.). After learning of the social media link, the Appellant sought a new trial based upon those grounds, a request which the trial court denied.

Unimpressed with the argument, the Kentucky Supreme Court parsed Juror 234’s answers to the voir dire questions, noting that although they were “succinct” she was never directly asked about any social media relationships.  However, the best part of the opinion comes when the Kentucky Supreme Court addresses the issue of how meaningful a Facebook friendship really is:

It is now common knowledge that merely being friends on Facebook does not, per se, establish a close relationship from which bias or partiality on the part of a juror may reasonably be presumed. This principle is well illustrated in this case. Here, an attachment to the supplemental motion for a new trial that Appellant filed with the trial court discloses that Juror 234 had, at the time of the trial, 629 “friends” on Facebook. She could not possibly have had a disqualifying relationship with each one of them. As we held in Sluss, “ ‘[F]riendships’ on Facebook and other similar social networking websites do not necessarily carry the same weight as true friendships or relationships in the community, which are generally the concern during voir dire.” Therefore, no presumption arises about the nature of the relationship between a juror and another person with an interest in the litigation simply from their status as Facebook friends.

So there you have it.  The appellant could not meet “the heavy burden” for challenging the verdict.  Strangely, no one challenged her for cause on the grounds that she casually knew – and worked with – the victim’s family in the real world. Oh, well.

The post Court Finds Juror’s Facebook Friendship With Murder Victim’s Spouse Not Grounds For Disqualification appeared first on Abnormal Use.

Plaintiff Maker’s Mark Distillery, Inc. has been sealing its bottles with red wax since the 1950’s, which it registered as trademark in 1985 (Reg. No. 1469925).  In 1997, the parent company for Jose Cuervo began using a red sealing wax on its special edition “Riserva de la Familia” tequila, shown here.  Maker’s Mark took exception to the use of the red sealing wax and, after Jose Cuervo refused to change the design, filed suit for trademark infringement in 2003.

Now, most people might be reluctant to challenge the strength and recognition of Maker’s Mark’s trade dress in a U.S. District Court in western Kentucky; but hey, too much tequila can make a man do strange things sometimes.  At least Jose Cuervo was sophisticated enough to request a bench trial, taking out of play the risk that it would end up with 12 bourbon-loving Kentucky jurors.  In a shocking turn of events, the district court found that Maker’s Mark’s registered trademark consisting of its signature trade dress element – a red dripping wax seal – was valid and infringed and enjoined Jose Cuervo from using any similar design.  The Sixth Circuit agreed and upheld the district court’s award of costs to Maker’s Mark.

Trade dress is an often unnoticed, but highly valuable form of intellectual property.  Recognized as a “symbol” or “device” under the Lanham Act (15 U.S.C. § 1052), trade dress typically encompasses the actual shape or design of a product or its packaging.  Some famous examples include the Coca-Cola bottle or Tiffany’s blue box.  Unlike traditional trademarks, trade dress must have acquired distinctiveness and it cannot be “functional.”  For example, if you see a small blue box wrapped in white ribbon, you don’t have to see the Tiffany’s mark before knowing where it came from.  Showing this level of recognition at trial can require a substantial amount of evidence. In this case, the Court found that Maker’s Mark’s fifty years of advertising and substantial sales were enough to satisfy the requirement.  It also did not hurt that in 2002 Business Week declared the Maker’s Mark’s seal “one of the most recognizable in the world.”

So next time you go to buy bourbon be rest assured that if you get the bottle sealed in red wax, it’s going to be a Maker’s Mark.

Cheers!

The post Sixth Circuit Prefers A Bourbon On The Porch To A Margarita On The Beach appeared first on Abnormal Use.

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“In December 2005, James Bishop purchased a Ronco rotissiere oven which was designed, manufactured, marketed, and distributed by Ronco Corporation.” Kentucky Farm Bureau Mut. Ins. Co. v. Ronco Acquisition Corp., No. 2009-CA-001979-MR, 2010 WL 3515808 (Ky. Ct. App. Sept. 10, 2010) [PDF]. Unfortunately for the Bishops, their home burned completely in December 2007, and, even more unfortunately for the Bishops, Farm Bureau pursued a claim against Ronco, asserting that the Ronco oven caused the fire. I’m sure it’s awful having your home burn to ashes. It’s worse when everyone knows that you can’t say no to an infomercial.

Ronco asserts that its oven gives you access to fresh “healthful food [that] has never been easier to prepare.” The webpage also presents testimonials from people who have lost 20+ pounds after buying the oven. Since being a lawyer prevents me from believing anything that I see or hear, let me posit an explanation for this advertising. Consumer A drops $160 + S&H on an oven, and probably more with the purchase of the optional “Rib Basket,” which is “Great for 3 or 4 people.” Upon receipt of the oven, Consumer A realizes that in purchasing the oven, he has spent his food budget for the next two weeks and will be unable to actually buy anything to cook in the oven. By not eating for the next two weeks, Consumer A loses 20 lbs, entirely due to the fact that he purchased the oven. Adding to the absurdity is the notion that the oven’s 3-hour automatic timer allows the consumer to “spend less time cooking and have more time for your active lifestyle.” I’m just guessing that someone who is willing to sit and watch an infomercial, rather than do anything else, to the point where he would order the product, is probably not concerned about an active lifestyle. None of his friends would say that he is at the pinnacle of fitness. He may, in fact, have the nickname, “Rib Basket.”

Fortunately for us, this case has legs. While it may be hard to believe that the original Ronco Corp. went bankrupt, the successor corporation, Ronco Acquisition Corporation, assumed (according to this court) its potential liability in this case via an Asset Purchase Agreement. The Kentucky Court of Appeals then reversed the lower court’s grant of summary judgment to Ronco, and remanded the case. Hopefully, we can bring you more as the facts of this case develop. Until then, you may want to stay away from the oven and try the Pocket Fisherman instead.

The post Successor Liability Sinks Infomercial Tortfeasor appeared first on Abnormal Use.

For reasons not clear in Childress v. Interstate Battery Systems of America, Inc., 2010 WL 600023, No. 1:09CV-54-M (W.D. Ky. Feb. 18, 2010), Mr. Childress did not bring suit within one year of his accident. On November 26, 2007, Mr. Childress drove home, exited his car, and “noticed the distinct odor of battery fumes emanating from his vehicle.” Id. Mr. Childress disconnected the battery, took the battery into his garage, and placed it on a workbench, where it exploded and sent shards of plastic and acid into Mr. Childress’ face and eyes. Childress, inexplicably, waited too late to file his products liability action, and, therefore, he had to assert a theory of recovery that would allow him to maintain his claim. He argued that his accident sounded in the Motor Vehicle Reparations Act, which allowed a two-year period to bring an action.

The two-year limitations period extends to those who were victims of a motor vehicle accident and whose injuries arose out of the use of a motor vehicle. Id. Because the blog adheres to the strictest of legal writing axioms, you already know what the court decided. Childress was not in his vehicle at the time of the explosion, and “it was the battery, not his vehicle, that was the sole cause of his injuries.” Id. Therefore, Childress was time-barred.

Maybe Childress had some bad facts in his claim that would have precluded a finding against the battery distributor, and he was trying to bring in his auto insurer. It’s unclear. But unfortunately for Mr. Childress, who at the very least had a real injury, and perhaps a valid claim, he can’t recover. Manufacturers take note and take advantage of Citizens United: Elect officials who support a one-year statute of limitations. Then I won’t have to move to Kentucky.

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