Shawn Wood is a commercial litigator and partner with the national law firm Seyfarth Shaw LLP. Shawn is also a monthly columnist for Chicago Lawyer magazine and a recipient of its Annual Writing Award. Most recently, he was honored by the Chicago Daily Law Bulletin as one of its "40 under 40 Attorneys To Watch" in 2005.
The following piece is his column from the September issue of "Chicago Lawyer." He's graciously allowing me to reprint it here. Since this article first appeared, the particular case he's writing about has been dropped. It's still entertaining, however...
MULLET CASE TESTS BOUNDS OF LEGAL PARODY
By Shawn Wood
Some call it transcendentally dreadful. Others describe it as “all business in the front, all party in the back.”
Call it want you want, but the infamous Mullet haircut is making headlines again based on litigation filed in the Northern District of Illinois by Miller Brewing Company against Los Angeles-based Brandlab, Inc and retailers Nordstrom and The Buckle.
For the unenlightened (or at least for those who have never driven through Northern Indiana), the Mullet is a uniquely hideous hairstyle cut short in the front and long in the back. It was sort-of in vogue about 20 years ago, especially among the members of Styx and Journey.
Perhaps seizing on the ironic celebration of the notorious haircut on various websites (such as mulletsgalore.com, which details the subtle but important distinction between the euromullet and feathermullet), Brandlab distributed t-shirts reading “It’s Mullet Time” and “Mullet Low Life,” which mimic the logo and slogan of Miller Brewing Company.
Miller Brewing Company wasn’t laughing.
Miller has shown a great sense of humor in many of its own witty parodies lately, but proving the old adage “consistency is the last resort of the unimaginative,” Miller has decided there’s nothing funny about “Mullet Time.” Miller sued Brandlab, Nordstrom and The Buckle for trademark infringement, trademark dilution and unfair competition arising out of their alleged sale of the Mullet t-shirts.
History suggests there can be a causal relationship between the sudden loss of one’s sense of humor and the desire to institute trademark litigation.
For example, Bill O’Reilly and Fox News found no humor in the use of O’Reilly’s image and Fox’s “fair and balanced” slogan on the cover of one of Al Franken’s books. They filed an action in the Southern District of New York, where the court ruled that consumers understand the difference between a book associated with Fox News and one that was skewering it. Franken thus lodged a successful parody defense, and the publicity from the lawsuit propelled his book to the number one slot on the bestsellers list.
A similarly humorless reaction may explain a pair of cases that established the now settled rule of law: JUDGES LOVE LESLIE NIELSEN. Photographer Annie Leibovitz, accordingly, was unable to enjoin ads for the third Naked Gun sequel, which spoofed her controversial photo of a pregnant and nude Demi Moore on the cover of Vanity Fair. The court held that the ads, which featured Nielsen’s face on the body of a pregnant model striking the same pose (now try to get that mental picture out of your head), demonstrated the necessary “joinder of reference and ridicule” to constitute a protected parody.
Eveready likewise lost its attempt to enjoin a Coors commercial, which featured Leslie Nielsen dressed like the Energizer Bunny. This Northern District of Illinois decision featured the now classic reasoning: “Mr. Nielsen is not a toy (mechanical or otherwise), does not run on batteries, is not fifteen inches tall, is not predominantly pink, does not wear sunglasses or beach thongs, and would probably make a better babysitter than a children's gift.” (No clue what prompted the qualifier “predominantly,” but we get the picture.)
Commentators discussing the so-called parody defense in trademark law often cite the Second Circuit’s explanation that “a parody must convey two simultaneous and contradictory messages: that it is the original, but also that it is not the original and instead is a parody.” This definition has always made my head hurt. It reminds me of Orwell’s definition of “double think” from 1984.
Others question whether there are any settled rules for determining what constitutes a parody, IP attorney and legal commentator Baila Celedonia observes “[a] review of trademark parody cases gives us no bright line rules. Rather, they appear to be a barometer of both the presiding judge’s sense of humor and sense of fairness.”
I think Ms. Caledonia is onto something here. The “Sense of Humor Barometer” could be formalized into some type of ranking system and incorporated into Sullivan’s Judicial Profiles.
Miller might not have lost its sense of humor. The brewer might simply want to avoid having its products tarnished by association with such a dopey haircut as the Mullet. (If the association had been with Elvis’ pompadour in the 50’s or George Clooney’s “Caesar” in the 90’s, there might have been no objection.)
But Miller should certainly expect to face a parody defense in the Mullet litigation, though it is unclear whether Brandlab was taking satirical aim at Miller, the mulleted masses, or both. The defendants may also challenge whether there could be any reasonable likelihood of confusion, given that high-end retailers evidently sell the “Mullet Time” shirt (and when’s the last time you saw a standard issue “Miller High Life” t-shirt at Nordstrom?)
Should such defenses prevail, Miller may suffer the same harsh fate as Fox News where the increased buzz from the litigation only increased the sales of the allegedly infringing item.
And those who contemplate similar litigation might heed the words offered by the unabashedly mulleted Jim Belushi to his best friend in About Last Night: “Don’t ever lose your sense of humor, Danny. Don’t EVER lose your sense of humor.”
If you missed any previous guest bloggers, click here: http://rickkaempferguestblogger.blogspot.com
Musings, observations, and written works from the publisher of Eckhartz Press, the media critic for the Illinois Entertainer, co-host of Minutia Men, Minutia Men Celebrity Interview and Free Kicks, and the author of "Back in the D.D.R", "EveryCubEver", "The Living Wills", "$everance," "Father Knows Nothing," "The Radio Producer's Handbook," "Records Truly Is My Middle Name", and "Gruen Weiss Vor".
Saturday, September 30, 2006
Wednesday, September 27, 2006
Half Empty: Pabst is Back! We blame ourselves
They say that when you hit your 40s, your life is half over. We prefer to think of it as HALF EMPTY. Our age has finally caught up with our outlook on life. Remember, it is possible to turn that frown upside down...but you might pull a muscle.
"Pabst is Back! We blame ourselves"
By Rick Kaempfer & Dave Stern
You read that right. Pabst Blue Ribbon is now a very popular brand of beer.
It’s our fault, too.
We failed an entire generation of Americans. We just assumed that no one needed to be told anymore. We didn’t even worry about kids discovering Pabst because surely the liquor store owner or barkeep would fill them in at the point of purchase.
“Um, son,” he would say, “You know you’re buying Pabst, right?”
“We haven’t sold any since 1979.”
“It tastes like carbonated urine.”
“Just say the word Pabst.”
“Now make the sound you make when you’re vomiting.”
If only that conversation had actually occurred.
Think about it, baby boomers. We didn’t even mention Pabst Beer for an entire generation because we thought it was so obviously bad that no-one would dare make the mistake of buying it. That was our mistake.
If you haven’t noticed, the kids today are latching on to many of the trends from the 70s, from the long hair, to the gooey pop tunes, to the fashion. Many of those are also big mistakes, but it may have taken the resurgence in the popularity of Pabst to finally get our attention.
These kids didn’t live through this history. They need it to be spelled out. Even things that we assume are obvious.
Engage the youngsters in conversation. Let them know that the following items are not to be revived under any circumstances…but most importantly tell them why.
1. Jonathon Livingston Seagull
This was a wildly popular book and movie. Let’s have the conversation now. Ask us anything you want about it.
“What is it about?”
“A talking seagull?”
“No. Just a seagull.”
“What happens to him?”
“Not a damn thing.”
If that’s not clear enough, maybe we should just add this: DON’T READ IT OR WATCH IT! YOU’LL NEVER REGAIN THOSE TWO HOURS OF YOUR LIFE.
2. Leisure Suits
These were all the rage in the mid-to-late 70s. Everyone had at least one leisure suit. Ask us anything you want about them.
“What is a leisure suit?”
“A shirt-like jacket and matching pants.”
“Like a suit?”
“Sort of, but more casual.”
“So it’s comfortable?”
“No, actually it’s made out of polyester, so it’s even less comfortable than a suit.”
“But I thought you said it was more casual.”
“It is. It looks worse than a suit, and it’s less comfortable.”
If that’s not clear enough, let us spell it out: THE ONLY REASON WE DON’T TALK ABOUT LEISURE SUITS IS BECAUSE WE’RE COMPLETELY HUMILIATED THAT WE EVER FELL FOR THEM.
3. The Symbionese Liberation Army
This was an anti-corporate group of middle class white radicals in the 70s who hoped to create an uprising against the government and the corporations that run everything. Ask us anything you want…
“That doesn’t sound too bad.”
“The anti-corporate part.”
“Do you think corporations control this country now?”
“So do you think the Symbionese Liberation Army was even remotely successful?”
“Ask me what tactics they used.”
“What tactics did they use?”
“They robbed banks and kidnapped people.”
“I don’t get it.”
That’s just the tip of the iceberg, kids. You’ll be hard pressed to find a decade with worse ideas than the 1970s. Please, we urge you, don’t make us live through it again. It would leave a terrible taste in our mouths.
Kind of like Pabst.
If you missed any previous Half Empty columns, click here: http://halfemptyarchive.blogspot.com
Tuesday, September 26, 2006
Suburban Man: Immigration Integration
By Rick Kaempfer
I didn’t notice this trend when we first moved back out to the suburbs ten years ago. It wasn’t until my kids started school, that it started to hit me. This suburb has changed dramatically since I lived here as a boy. According to a recent story in the Chicago Sun-Times, many of the other Chicago suburbs are also changing in the same way.
And I, for one, think it’s great.
When my family moved out here in 1968, we were among the first immigrants to integrate this amazingly homogeneous suburban society. My sister and I were very young (5 & 4), and we didn’t even speak English in our household. My family had only been here slightly more than a decade, and had lived in a Chicago neighborhood with a circle of fellow German immigrant friends, none of whom spoke English in their homes either. Moving to the suburbs meant moving out of our comfortable German bubble and into America proper.
How German were we? My mother actually sent me to school in lederhosen because she had no idea how strange that looked to the other kids. I had to learn English in school. I played a sport, soccer, that the other kids in the neighborhood didn’t even know existed.
Every time I watch my sons play soccer now I relive those childhood memories. There are dozens of kids on these teams going through the same thing I went through in 1968. We have Polish kids, Mexican kids, Indian kids, African kids, Arab kids, Asian kids, and just about every other nationality you can name.
It’s not the similar experience, however, that makes me smile when I watch immigrant kids with their families. It’s the differences. For one thing, immigrant families are common in the suburbs in 2006, and nobody bats an eye. The "normal" American kids don't consider it odd at all.
It was a little different in 1968. As my mother puts it now: "the school nurse was calling us every day." The bigger kids picked on me physically. They made fun of my name, my heritage, my sport, and our accents (Hogan's Heroes didn't exactly help, either). I felt like a freak...and I was a white kid. I can only imagine what it would have been like for an Asian kid, or an Indian kid, or an African kid.
I can point to the precise moment my life changed forever. The neighbor boy Stu rang our doorbell, and said: “Hi, I’m Stu, and I’m going to be your best friend.” Stu took me under his wing, showed me what it was like to be a normal American boy, and helped transform a dangerously shy German boy into just another kid in the neighborhood. By the time second grade started, it was effortless. I felt I belonged.
Kids today don’t need a Stu to rescue them anymore because they have a whole classroom of Stus. I’ve seen it with my own eyes. A Vietnamese boy named Phat (pronounced just the way you think it’s pronounced) just moved into the neighborhood and none of the kids made fun of him. In fact, they embraced him. The “normal” kids were interested in learning about life in Vietnam, and they instinctively knew that it was their job to help him adapt to America.
The political correctness of today’s American society, mocked by many adults, has a positive side that isn’t discussed nearly enough. Largely because of the political correctness in our schools, America has become a more tolerant society—and that tolerance has even reached the formerly homogeneous intolerant suburbs. My own kids can’t even comprehend that it wasn’t always this way.
That's the part that makes me smile the most.
If you missed any previous Suburban Man columns, click here: http://suburbanmanarchive.blogspot.com
Sunday, September 24, 2006
SHORE MAGAZINE ARTICLE: "Oktoberfest"
By Rick Kaempfer
(From the current October/November issue of SHORE MAGAZINE www.visitshoremagazine.com)
It started as a wedding celebration. 198 years ago, Prince Ludwig of Bavaria married Princess Therese, and invited the entire city of Munich. More than 40,000 people showed up to party, and an annual tradition was born.
Other than a few minor improvements (like moving it up a few weeks to avoid colder weather, and eliminating the horse race), Oktoberfest remains basically the same today: A big outdoor party with free-flowing beer, German food, and Oompah bands. Anything claiming to be an Oktoberfest that doesn’t include those things is not authentic.
While Munich is still the Oktoberfest headquarters of the world, the large German-American population in this country has helped the tradition spread here. The largest Oktoberfest is held in Cincinnati (over 500,000 attend each year), but don’t forget that Chicago is also famous for its many Oktoberfests.
If you plan it right, you can go to an authentic Oktoberfest in the Chicago area every weekend for an entire month. All of the following Oktoberfests have the four essential ingredients (Tents, beer, brats, and oompah).
German-American Fest-Oktoberfest (September 8-10), 4800 N. Lincoln in Chicago
This extremely popular Oktoberfest is always staged the weekend of the Von Steuben German Day Parade. It starts the Friday before the parade (the parade is at 2pm on Saturday September 9), and continues through Sunday night. There’s no cover to get in, but tickets are required for beer and food.
Fox Valley Oktoberfest (September 15-17), 815 S. Randall Rd. & College Green Dr. in Elgin
Billed as the largest and most-authentic 3-day Oktoberfest in the Chicago area, this fest is put on every year by the German-American National Congress (D.A.N.K) and the South Elgin Chamber of Commerce. Admission is free and so is parking. Fox Valley also has a carnival for the kids.
Lake Zurich Oktoberfest (September 22-24), 24955 North Rand Road in Lake Zurich
The food lineup in Lake Zurich also includes vendors like Culver’s and Brothers Ribs. Admission is $5.
St. Alphonsus Oktoberfest (Sept 29-Oct 1), 1429 W. Wellington Ave, in Chicago
One of the city’s oldest churches was built and founded by German Americans and celebrates it heritage with a weekend Oktoberfest celebration. Admission is $5.
Some of the recent nearby celebrations like the Oktoberfest at Moser’s Farm and the Laporte County Fairgrounds Oktoberfest will not be held this year. Moser’s Michigan Street Café in New Carlisle will have some Oktoberfest events (574-654-8466), and other German or Austrian restaurants will have Oktoberfest themed-celebrations, but if you want to attend a full-scale traditional authentic open air Oktoberfest in Indiana, you may have to travel a little south.
Anderson Oktoberfest, (September 28), 32 W. 10th Street in Anderson, Indiana
This traditional (although it’s only one day) Oktoberfest has been an annual event for a decade. They have German food, music, dancers, and beer, but unlike other Oktoberfests they also have an activity area for artist demonstrations including glass blowing. Anderson is located in Central Indiana, southwest of Muncie and northeast of Indianapolis.
Seymour Oktoberfest, (October 5-7), downtown Seymour, Indiana
Seymour is the hometown of John Cougar Mellencamp, and the site of the most popular Oktoberfest in the state. Seymour’s Oktoberfest has been going strong for more than 30 years. Of course they have the big three requirements, but they also have a parade, a carnival, contests and a flea market. Seymour is located an hour south of Indianapolis on Interstate 65, where it crosses U.S. 50.
The German American National Congress (D.A.N.K) in Benton Harbor (2651 Pipestone) has an Oktoberfest celebration two Saturday nights (the 21st & the 28th) in October, but for the bigger events, you’re going to have to travel a little further north.
Pentwater Oktoberfest, (October 14), Village Green & Village Pub in Pentwater, Michigan
This one day Oktoberfest has an entertainment tent, live auction, classic car and hot rod show, dance contests, a strudel bake-off, and of course beer and brats.
Frankenmuth Oktoberfest, (September 14-17), Heritage Park in Frankenmuth, Michigan
This is the premiere Oktoberfest in the state of Michigan. Frankenmuth’s celebration is the first Oktoberfest outside of Munich to be sanctioned by the Bavarian Parliament and the City of Munich. In its 17th year, Frankenmuth’s Oktoberfest has it all: Entertainment recruited from Germany, traditional German food and beer, amusement park rides for the kids, and even Wiener Dog races. Admission is $8 for adults, ages 15 and under are free. Frankenmuth is located just north of Flint on I-75.
Whether you attend an Oktoberfest in Illinois, Indiana or Michigan, there are really only two things you must know once you arrive.
#1: The words to “Ein Prosit.”
#2: The steps to “The Chicken Dance.”
Every German band will play this song at least a dozen times a night. You’ll recognize it quickly. The lyrics go like this:
“Ein Prosit, Ein Prosit, Der Gemuetlichkeit.
Ein Prosit, Ein Prosit, Der Gemuetlichkeit.”
(Translation: A Toast, A Toast, To Happiness. A Toast, A Toast, To Happiness)
When the song is over, the spoken toast begins immediately. It goes like this:
“Oans, zwoa, drei, Gsuffa”
(Translation: One, Two, Three, Guzzle)
Ignore the toast and the order to guzzle at your own peril.
The Chicken Dance
While this isn’t technically a German tradition, it has become a staple of American Oktoberfests. Here are the Chicken Dance steps.
1. Face your dance partner.
2. When the music starts, open and close your hands like a chicken beak four times.
3. Put your thumbs in your armpits and flap your wings four times
4. Wiggle down to the floor four times
5. Clap four times
6. Repeat first five steps four times.
7. Lock arms and spin your partner.
8. Change Directions and spin again.
Off you go
Now that you know how to assess a proper Oktoberfest, where to find some in the area, and what to do when you get there, you have all the information you need except for one last piece of advice.
Bring a designated driver.
You won’t be sorry.
Rick's Note: I appeared on the Spike O'Dell show on WGN Radio a few weeks ago to promote this article, and I've been told that I didn't use the full name of the "German-American Fest/Oktoberfest" on the air. I merely gave the address, mentioned the parade, and praised it as my favorite Oktoberfest in Chicago on the #1 morning radio show in town (with hundreds of thousands of listeners). To those of you who were offended that I didn't mention the whole name of the fest while giving thousands of dollars of postive free publicity to the German community on the most popular radio show in Chicago (And I've heard about a few of you indirectly)..the next time you hear someone say "Some people are never happy," they're talking about you.
Subscribe to: Posts (Atom)