Hey, Leave my Nurdle Alone! (Glaxo & Colgate go at it…)

August 5th, 2010. By AbiK

The beauty of blogging about all things legal is that you just never know what you’ll come across. Many times there are heart-wrenching personal injury stories. Sometimes there are lawsuits that need to be filed under “ridiculous“. And then, there’s the nurdle.

For those of you not-in-the-know, a “nurdle” would be the dollop or blob of toothpaste that sits so beautifully with nary a smudge or drip on top of a toothbrush in a toothpaste ad. You’ve seen it hundreds of times—it ranks up there in ad-land with the Philly Cream Cheese dollop spread on a bagel or the Cool-Whip dollop (below) on some strawberry dessert. It’s photo-styling perfection and you best not mess with it.

Especially if it may be trademarked.

And, it appears Glaxo is claiming that the nurdle is, indeed, a trademark of theirs—for their Aquafresh “Triple Protection” (oh, btw, “triple protection” is also part of this trademark infringement case) toothpaste. You know, the one made famous by blending three color stripes of toothpaste into one squirt of the tube.

But see, then came Colgate-Palmolive with its “Triple Action” toothpaste. Uh-oh. Now things are getting fired up. “Triple Protection” vs. “Triple Action”. And Glaxo was thinking that was sounding pretty darn close to their long-established triple-play (note, “triple play” is not trademarked) toothpaste.

So, upon seeing the new Colgate toothpaste, Glaxo had raised objections with Colgate over its branding. And apparently Colgate didn’t back down, which got Glaxo’s dander up.

According to Bloomberg.com, Glaxo filed new trademark applications for the nurdle. In a complaint filed by Colgate, this move—filing the trademark application—is a “shot across the bow” in which Glaxo is attempting to gain exclusive rights for the nurdle design. The complaint seeks to have a federal court rule that the Colgate toothpaste does not infringe Glaxo’s trademarks for Aquafresh.

Glaxo’s take on this? According to an emailed statement from Glaxo’s spokeswoman to bloomberg.com, “More than 20 years ago, GSK’s Aquafresh brand created the highly distinctive nurdle device to promote its range of Aquafresh oral care products. These extremely valuable trademarks are the exclusive property of GlaxoSmithKline’s world famous Aquafresh brand and GlaxoSmithKline will take all necessary steps to defend its rights.”

Where were all the ‘Safety Nets’ at Amusement Park?

August 4th, 2010. By LucyC

 

Never a fan of amusement park rides—including the Ferris Wheel—I read about this story with a stomach churning sense of foreboding. On July 31, 12-year old Teagan Marti fell more than 100 feet in Extreme World Amusement Park’s Terminal Velocity ‘ride’ and landed on concrete because the safety net was not in place.

Remarkably, she survived. She is in the hospital in Wisconsin, the state where the amusement park is located, in critical but stable condition. She has 10 fractures in her back and one in her skull. Her father, who is a radiologist, performed CPR on her at the scene to bring her back to life.

Dr. Alex Marti, was the first to see his daughter after her fall. During an appearance on CBS’ The Early Show on August 2, he said  “She was dead….She was basically unconscious, not moving and laying flat on her back with blood coming out of her ears and nose. Just a horrible, horrible scene. At the moment she fell and I heard that loud thud, I just assumed she was dead.”

This is everyone’s worst amusement park nightmare—the unimaginable. Why? Because you place your trust in the amusement park staff, experts, ride designers, maintenance people and God—whichever god you like—that everything has been done properly, and your safety is not at issue. Because to actually imagine what happened to Teagan is hard to do. At some point your brain kicks in and says “no—this is ridiculous—it will never happen.” As Teagan’s father put it, after having watched several people do the ‘ride’ before his daughter, “To me, it’s just impossible to imagine that something like that could happen.”

But it did. So now the debate begins—who’s at fault? At a minimum this constitutes negligence resulting in personal injury—it could have been wrongful death. Do waivers hold in these types of circumstances? An interesting point in this situation is that Teagan is 12, yet the legal age to take this ‘ride’ is 14. According to a report on CBS News, Teagan’s parents signed a consent so she could do the Terminal Velocity ride, which incidentally is intended to send you hurtling through space at 52 miles per hour— having been dropped from a barrel 100 feet above the ground–see the video above.

The fellow who let Teagan go—the man at the top of the ride—is not at work at the moment “for mental health reasons.” I would think so. But the park has also been closed as an investigation takes place.

The attorney representing Teagan apparently believes it is this man’s fault because he didn’t check to see if the safety net was in place before he let the young girl go. But I can’t help wondering why there wasn’t a back-up safety net? What would that cost to install? Next to nothing, compared with the alternatives, I’m willing to bet.  And what about procedures? Were there any in place that this man had to follow before letting Teagan go? If there weren’t, how can he be solely responsible? Teagan’s attorney told CBS that there was no failsafe method, no back-up. And he makes the point that the fact that a rider could be released prematurely demonstrates a design defect. If this had been a defective product like a car that had caused an accident, people would not hesitate in placing the blame on the manufacturers and designers, and rightfully so. Therefore, while the man who let Teagan go may have played a decisive role in this horrible accident, I don’t see how he can be held entirely to blame.

I’m also left wondering who oversees amusement park safety? CBS news reports the “US Consumer Product Safety Commission estimates that more than 270 million people visit American amusement parks each year. About 7,000 are treated in emergency rooms for injuries from ride accidents. An average of four people die.”

Consequently the experts advise you not to assume all rides are safe. Ride safety expert Ken Martin told CBS News, “Watch the ride, ask questions, make sure the ride operator is paying attention. Make sure other rides are behaving themselves.” That’s exactly what Teagan’s father did.

So, if you can’t assume all rides are safe—in what instance is it safe to go on one?

Update: BP Oil Spill by the Numbers

August 3rd, 2010. By AbiK

A quick down and dirty look at the current numbers related to the BP Oil Spill…

11 families whose lives were forever changed as they lost loved ones aboard the Deepwater Horizon

102 days since BP oil spill disaster

120 people who’ve gone to the E.R. , a clinic or urgent care center in AL complaining of ailments related to the spill, since May 14th (al.com)

300 federal lawsuits filed–so far–in 12 states, against BP, Transocean Ltd, Halliburton Co., and Cameron International (AP)

800 skimming boats BP currently has working on the spill (miamiherald.com)

1,443 total industry offshore incidents between 2001 – 2007, causing 41 fatalities, 302 injuries, 476 fires, 356 releases of pollution (National Wildlife Federation (NWF) Report, Assault on America, 2010)

24,800 workers BP currently has working on the spill (miamiherald.com)

$7,300,000 spent on lobbying by the American Petroleum Institute (trade association representing oil and gas industries) (NWF)

$13,900,000 direct political contributions by oil and gas industry to member of Congress, year-to-date this year (NWF)

$500,000,000 amount of settlement payout to fisherman and residents who were victims of the Exxon Valdez disaster–for comparison (AP)

$2,000,000,000 estimated amount BP will spend to defend itself against lawsuits (AP)

$20,000,000,000 fund set up by BP to settle victims’ claims

Attorney Kip Scott: Ground Zero, Katrina Volunteer Ready to Help Again

August 3rd, 2010. By janem

Attorney Kip Scott has plenty of experience helping others—outside of his legal practice.

Scott first got into volunteerism during law school in his late 20s (his first career was in engineering). ” I had the opportunity to volunteer as a summer camp counselor for kids who were living in group homes,” says Scott, who  helped with whatever activities they wanted to do, from swimming to bow and arrow(!) . ” I found it much more rewarding than a lot of stuff I did at work,” he adds. Scott volunteered at the camps for four summers and then 9/11 happened.

Again through his church, Scott volunteered with the relief effort. “I had one week’s notice to pack, take a few classes in disaster training and get to New York [from California], a city I had never been to,” says Scott. “We stayed a few blocks north of ground zero and worked 10-14 hour shifts. I drove a little cart around that carried supplies—food, water, firewood (to keep everyone warm at night)—for the police, fire department and the Port Authority. Most of the officers I spoke to just wanted someone to talk to about California, to keep their minds off what had just happened. Of course many people were emotionally numb; I owed them a great deal of respect.

“Basically Ground Zero was an open grave. We didn’t take any pictures; we wanted to honor the dead. It was really tough for everyone and every night after our shift we came back to the hotel and were debriefed about what we saw, what happened and what took place. The disaster training classes taught us what not to say and not to give advice; just be there for support.

“Most of us who worked at Ground Zero were so busy we didn’t have time to think about what we saw or smelled. There was a food tent and two supply tents set up and everything was being worked on including the subway. Often the gas lines would give way and everyone would have to evacuate; everywhere smelled like an electrical fire—it was surreal.

“The other part of my job was working at the medical examiner’s office—where the bodies were processed. When a body or partial body was found, they would bag the remains, put a bar code on the bag, put the bag on a gurney with a flag on it, salute, put it in the ambulance and drive the ambulance midtown to the NY Medical Examiner’s office.  Again,  I was there to make sure all the tents had supplies. I was there a few times when the bags were opened. The doctors would cut a piece of muscle or fingernail and bone marrow to get DNA samples. The triage room smelled like dirty ammonia, which made the doctor’s voices hoarse because the ammonia had eroded their esophagus.

“Our shift was over after two weeks and another group came in but I felt bad for leaving so many people still working there.. I would have stayed for as long as necessary.”

Then came Hurricane Katrina. Just as he did after 9/11, Scott dropped everything on short notice and traveled to Mississippi to help those in need. “I first arrived in Gulfport, where the eye of the hurricane hit,” says Scott.

“We helped flood survivors (they were not called victims) because their insurance wouldn’t help them. We would take all their furniture, appliances, clothes, everything, onto the curb of the street in the front of their house, in separate piles. Then we brought out all the drywall to expose the rafters so the wooden beams would dry—mold was a big issue.  It was physically intense and the conditions were bad: it was about 100° with heavy humidity. Lots of windows wouldn’t open because the wood was swollen and inside the houses  it was even hotter. I worked there for about two weeks until Hurricane Rita came and we had to leave.

“Even though for just a brief time, I’m glad I was able to help some people. And I wouldn’t hesitate to help in this capacity again—God forbid it won’t happen again. “

Back in California, Kip Scott helps personal injury victims at the Personal Injury Law Center in Orange County.

Wendy’s Robber Finds Less than $586 in Register, Complains

August 2nd, 2010. By LucyC

Welcome to Totally Tortelicious—a review of some of the more bizarre legal stories making news—and there’s certainly no shortage of them.  

Petty Cash at Wendy’s? I think this guy’s expectations of customer service run a little high. Apparently, after robbing a fast-food restaurant in Atlanta he called into complain about his paltry takings—twice—just so everyone was completely clear about how upset he was. 

Just to be clear on my end—this fellow donned a ski mask and gun and headed off to a drive-through window of a Wendy’s (what is it with Wendy’s? This is the third time a Wendy’s–related ‘incident’ has made the pages of Tortelicious—in as many months practically… one involved a couple of ‘ladies’ who attempted to taser the staff because of lousy customer service and the other involved food back as feed back… ).

He then demanded the person behind the window hand over the cash drawer, which that person did, and he took it and ran off.  Hey—he didn’t stipulate what amount of money he wanted—or even that there had to be any money in the cash drawer…you know you need to be clear when placing an order, as the two previous stories have demonstrated…

According to a media report, in one phone call the robber said “next time there better be more than $586.” He called a second time with a similar complaint. Ah, next time?

Talk about packing a killer punch—some guy practicing his knock-out punches knocked out his gas meter instead which resulted in a neighborhood evacuation. 

You know there really are some things in life you just can’t plan for and this guy is one of them.

He put his punching bag close to his gas meter—umm, that was smart—and then got started with his workout. So, man hits punching bag which hits gas meter which falls off wall and spews natural gas everywhere. Oh the insurance company is going to love this one. (and we were worried about hydraulic fracking…) 

According to a local media report, Deputy Fire Chief Tom Snively of Middletown, Ohio, said it Read the rest of this entry »