June, 2008

How To Sue A Naked M&M

The Naked Cowboy will end up with more than a few dollars slipped into his boots from Mars Inc. and retail branding agency Chute Gerdeman. The naked cowboy sued both when they used his trademark protected “giddyap” to advertise the popular Mars product M&Ms

For those who never had the pleasure of a personal viewing, the Naked Cowboy is a New York City street performer. He is kind of a guitar playing Chippendale Dancer. He plays the guitar in Times Square clad only in white underwear, cowboy boots and cowboy hat. I saw the Naked Cowboy in action the last time I was in Times Square. Feeling myself on the verge of “self emasculation”, I elected not to put any money in his boot. I left Times Square with my “machismo” still in tact.

In the very near future Mars and Chute will wish they had slipped a few bucks into his Snakeskin boots. They did the incredibly stupid thing of using his “shtick‘ to sell their products without his permission. The Naked Cowboy filed a lawsuit against Mars Inc. and Chute Gerdeman Inc., after they released a video billboard showing a guitar-playing blue M&M dressed in a white cowboy hat, cowboy boots and underpants.

When interviewed, the Naked Cowboy stated:

“I have spent 10 years in every kind of weather and going through the legal, step by step process of getting a trademark,” Burck said. “It is imperative that damages are pushed so … an example will be set”

How did their trademark counsel miss the fact that his “manhood” may have trademark protection? Did Mars or their retail branding agency even consult trademark counsel? A first year trademark attorney would have known to check into this. If counsel did look into this, why did they conclude he had no protection for it?

The legal requirements for The Naked Cowboy to claim trademark infringement and basic trademark protection are not complicated. The Naked Cowboy has to be trademarked; has to prove that Mars, without his consent, infringed upon the trademark. He then has to show there’s a “likelihood of confusion” between his trademark and the allegedly infringing mark . This is for federal trademark protection. I suspect some New York State trademark laws have been broken as well.

Guys who put money in this cowboys boots are not the only ones who will be emasculated here. The guilty decision makers at Mars or Chute had better “cover up” for a gouging if they did not have opinion of counsel before they played their guitars.

I decided to get a plaintiff attorney’s take on the issue. I contacted Angel Reyes, a very well known and respected attorney in the Dallas firm of Heygood, Orr, Pearson & Bartolomei. They are a trial litigation firm in Dallas, Texas. Angel had this to say:

No matter how much money you spend on lawyers, you just never know when something will get overlooked. Imagine overlooking the package the Naked Cowboy sports. I’m sure not many women who’ve seen him in Times Square have overlooked it, but it sure looks like Mars, Chute Gerdemen, and their high priced lawyers did. Maybe they should have called Nancy Grace, she’s got a sharp eye.”

Nancy may have a conflict of interest. I saw her slipping a ten spot into the boot of the Naked Cowboy the other day.

One last thought for the masses. How do you know if an M&M is naked?

©2008 Brian Cuban

Posted in Law and OrderComments (3)

My Headphones Almost Killed My Cat

I purchased a new set of headphones at Best Buy. Mine died of natural causes. I am one of those people that cannot work out unless I am listening to something so it was imperative that I got a new set before my next workout. I thought I had it planned out perfectly. I would buy the headphones, run home, get my gym stuff and be ready to rock and roll!

I found a cool pair that I liked. I got them home. Everything was going as planned. I guess I never really noticed or thought about the fact that they were enclosed in this big thick plastic case. The kind that need to be opened with a phaser or a Jedi light saber. No big deal. I would just get the scissors out and I am ready to go. There were no scissors to be found.

So here we go… I ripped it with my hands, stomped it with my feet, tore it with my teeth, fed it to my dog, fed it to my cat, stabbed it, jabbed it, prayed over it and cursed it. It just smiled back at me laughing, still snugly encased in its plastic kryptonite home. Where is Superman when you need him? Finally in a fit of rage, I took a knife and wildly stabbed at. I completely missed it and impaled my hand. I screamed loudly and throw the package across the room. I heard my cat scream. I looked over and it had sliced off the end of her tail.

After I bandaged my hand, I picked up the cat and the headphones and headed for the vet. On the way to the vet I look at the headphones and they were still in their plastic case laughing at me. I decided that I would have the last laugh and tossed them onto the highway to face a gruesome end by tire squash.

I got my cats tail re-attached. I got my hand stitched and headed home. I was stopped at a red light and out of the corner of my eye I saw a homeless guy wearing my headphones and petting his cat. He was obviously smarter that I was!

I missed my workout……

Question to ponder? What is the point of these “kryptonite cases”? Medieval Chastity Belts were probably easier to break into. Somebody please tell me who invented it so I can send him or her my vet bill.

©2008 Brian Cuban

Posted in humorComments (63)

Is The Walmart Deathstar Destroying Small Town America?

I recently took a trip to Atlanta, Texas. Atlanta is an East Texas town of about 6500 people. As I drove through “downtown” Atlanta it was clear that that any resemblance to its namesake in Georgia was in name only. It was named after Atlanta, Georgia because many of the early settlers were from that area. It was a typical one street downtown as I have seen in other small Texas towns such as Olney, Boyd and Archer City (where the classic movie The Last Picture Show was filmed. Streets like you would see in any “Route 66” town across America. As is standard in small Texas towns, there is a barber, candy shop, bank, hardware store, bakery, sporting goods store, few antique stores and of course a Dairy Queen. The staples of life that can be cut and pasted to countless small towns across America. There were also numerous boarded up storefronts.

The Atlanta Chamber of Commerce Web Site states:

“Atlanta exemplifies small town America. Warm smiles and warmer greetings reflect a friendly and progressive community.”

What Atlanta and other small towns all over the country never envisioned when they were formed (Atlanta was founded in 1872) that small town America would one day be synonymous with the arrival of Wal-Mart. Some would compare it to the arrival of the Evil Empire and its Death Star. Darth Vader, who was unmasked many years ago, didn’t initially destroy these towns with his death ray. He arrived with the promise of “we come in peace”. The Death Star then set down in the middle of town, touting every possible convenience a person could want at cheaper prices, with greater diversity and quantity. Unfortunately no Jedi Knights ever came to the rescue. They were to busy fueling up their Starfighters at discount prices.

Now, instead of seeing the sign “Victory tonight and free haircut tomorrow” if the high school football team or basketball team wins, you see “Going Out of Business Liquidation Sale.” How can the “It’s A Wonderful Life” dream of small town America possibly compete with the neon lit entrance to the Death Star just a block away? Instead we see “The Last Picture Show” at the local theater just before it closes. The residents of Atlanta, Texas leave the theater and disappear into the Death Star and are never heard from again by the local merchants.

As I drove through downtown Atlanta, the town seemed dead. I do not mean dead in the lack of people. I mean dead in spirit and any vision of a brighter economic future. It was as if a death ray was fired out of space vaporizing a once-thriving small town and replacing it with boarded up stores, liquidation sales and a stagnant economic future. It was an almost ironic predatory invitation for its own residents to pick off the bones of what they had built over decades. I stopped a local resident walking down the street and asked what she thought about the future prospects of Atlanta, Texas. Into my ear came the deafening yell, “Wal-Mart did this to us!” I thought about it and it made perfect sense. What are the economic consequences of the Wal-Mart Death Star landing in virtually every small town in America? For every action there is a reaction.

Wal-Mart is the world’s largest retailer – with 1,489 Mega-stores, 1,397 Super Centers, 532 Sam’s Clubs, and 56 neighborhood markets in the U.S. alone as of 2003, and close to a thousand more abroad from Argentina to Germany. Wal-Mart is now the single largest private employer in the U.S. with 1.1 million “associates” and higher earnings than the gross national product (GNP) of 150 countries! In 2003, Wal-Mart sold 19% of all groceries in the U.S. and recorded $9 billion in profits.

A study of small towns in Iowa revealed a loss of over 7,300 businesses from 1983 to 1993 due to a radical shift in consumer spending to chain stores like Wal-Mart. Five years after a superstore opens, small towns within twenty miles experience a 19% decline in business. For every 100 Wal-Mart jobs created, it is estimated another 150 jobs are lost. Is low-cost competitive pricing destroying the very entrepreneurial spirit that built this great country?

For every action there is a reaction. When Wal-Mart is offering $4 prescriptions as an action, I think the law of physics is pretty clear that “Joe’s Soda Jerk Shop and Pharmacy” that has been there since 1932 is going to suffer. They will hang a sign on the door stating they they lost their home so others could have the cheaper prescriptions they no longer afford.

Are Sam Walton and kin the Darth Vadars of the one-stop shop? I wouldn’t go that far but I did start thinking of the moms and pops who put their blood, sweat and tears into those shops dating back to the Great Depression. They’re now bankrupt, can’t even afford the new $4 prescriptions, and are too proud to enter the Wal-Mart Death Star. People who at one time had a dream are becoming so desperate that meth labs are now outnumbering local retail shops in some of these small towns. There is always welfare. I have yet to see Wal-Mart advertise that they are handing out any discount welfare checks.

Does Wal-Mart bring positives to a community? You can ask ten people and get ten different answers. What’s yours?

©2008 Brian Cuban

Posted in UncategorizedComments (18)

Is Intelligent Design Science or “Scientology”

I recently saw the move “Expelled“. It is a movie about the theory of “Intelligent Design.” It attempts to make the argument for why Intelligent Design should be taught in public schools along side Darwin’s Theory of Evolution. It was produced by and starred Ben Stein, a well known speech writer, political commentator and bit actor of “Ferris Bueller’” fame. He is a very outspoken critic of Darwinism and a proponent of teaching Intelligent Design in public schools. I finished the movie with the exact same opinion as when I started. Intelligent Design has no credible basis in scientific theory to justify being taught in public high schools. That is my side of the fence.

As we all know or should know, Intelligent Design is the concept that certain features of the universe and of living things are best explained by an intelligent cause, not an undirected process such as natural selection. The proponents of intelligent design believe it is a scientific theory that stands on equal footing with, or is superior to, current scientific theories regarding the evolution and origin of life. Proponents hold that living organisms are so complex they must have been created by a higher force rather than evolving from more primitive forms.

When I was growing up, if someone has asked me what I thought of “intelligent design” I would have asked if that was a Maytag dishwasher innovation. It was just not a hot topic in the public high schools of the 70’s. We were strictly of the Darwinian mindset.

Which ever side of the fence you are on, there is no disputing that it is an emotionally charged issue with big time support on both sides. In 2005, President George W. Bush voiced his support for the teaching of intelligent design in public schools during a roundtable interview with 5 Texas newspapers. President Bush stated:

“I think that part of education is to expose people to different schools of thought,”

Notwithstanding President Bush’s views, it is risky business for a public school teacher to even mention creationism.

In 2007, Texas Science Education Curriculum director Chris Comer used her work email account circulate an email announcing a speech by Barbara Forrest, co-author of Creationism’s Trojan Horse: The Wedge of Intelligent Design and an expert witness in Kitzmiller v. Dover case intelligent design discussed below. Shortly after the email was circulated to some colleagues and online groups. She was called on the carpet and forced to resign in lieu of termination for insubordination within hours of the email being sent. You can read the story here.

In August of 2007, The Texas State Board of Education came out firmly against the teaching of Intelligent Design. According to an article in The Dallas Morning News, interviews with 11 of the 15 board members found little support for the teaching of the theory in biology or other science classes.

Intelligent Design and variations of it do have support in some parts of the country. In light of the Kitmiller decision, school districts have been trying their own end runs by taking steps to “unofficially” encourage students to question Darwinism rather than make it an official part of the curriculum.

The Cobb County School District in Georgia attempted this tactic by placing disclaimer stickers on science books. The stickers described evolution as “theory, not a fact,” and said students should consider the subject with an open mind Several parents and the ACLU sued the school district to have the stickers removed. A federal court ruled that the stickers were unconstitutional. It ruled in January 2005 that the stickers represented an attempt by the board to advance religion in the classroom. The stickers have been removed.

In 2005 The Kansas Board of Education became the first public school entity to sanction the teaching of it along side Darwinism.

Just last week, the Louisiana House of Representatives passed a the “Academic Freedom Bill” that singles out evolution and other theories or fields of science and implies that they are controversial. It has not yet been approved the the Senate.

On the other side of the fence, In Kitzmiller v. Dover Area School District (2005), a United States federal court ruled that a public school district requirement for science classes to teach that intelligent design as an alternative to evolution was a violation of the Establishment Clause of the First Amendment to the U.S. Constitution. The court ruled that intelligent design is not science and is essentially religious in nature.

Should Intelligent Design be taught hand and hand with the theory of evolution letting the students make come to their own conclusions? Is it just a clever way of doing an end run around the Establishment Clause of the First Amendment to the U.S. Constitution?

It appears that over 80 years after Scopes trial, the monkey is still king of the jungle for now.

What side of the fence are you on?

©2008 Brian Cuban

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