067: Cat Fight

Stella Case No. 067, Originally Published: 12 November 2003

“Ah-ahhhhhh-ah-ahhhhhhhhhhrrrrrgh!” may be the new refrain of “George of the Jungle” after one corporate behemoth went after another. The Walt Disney Co.’s direct-to-video movie George of the Jungle 2 stirred the wrath of Caterpillar Inc., makers of bulldozers and other industrial equipment.

It seems the plot line of GJ2 has to do with a bad-guy industrialist trying to level the jungle where George lives. The climax is a several-minute sequence where George fights off the evil environment-destroying “bulldozing bullies” who are, you guessed it, driving Caterpillar-brand dozers. And the company doesn’t like that. It doesn’t like that one bit.

So much so that Caterpillar sued Disney and Buena Vista Entertainment, its distribution subsidiary, asking the Federal Court in Peoria, Ill., to stop the movie’s distribution and force Disney to recall the 2.2 million copies that had already been distributed so they could edit out the disparaging scenes. The basis? Trademark dilution and infringement. They say the movie’s use of Cat-branded equipment “ties” Caterpillar to an “evil attacking army” which might create a “negative impact on children that view the movie.”

067: Cat Fight
Both were sued under a particular doctrine at about the same time. And both suits failed.

Riiiiiiight.

It’s true that the owners of registered trademarks must diligently go after those who infringe on their rights or they can lose the trademark. The makers of Kleenex-brand facial tissues are fighting that right now, trying to keep the word “kleenex” from becoming a generic word. That’s what happened to “thermos” already. But certainly Disney is not going to branch into heavy equipment and compete with Cat, and the profits from the movie don’t depend on the brand of dozer shown.

Taking Cat’s argument to its extreme, if a bad guy drives a Lincoln Towncar in a movie, Lincoln Mercury should sue and whine that having a fictional criminal drive its cars somehow puts the company in a bad light. Maybe Cat thinks big industrialists like to watch stupid video movies and are somehow dumb enough to think that because some fictional characters use a particular brand of equipment means they shouldn’t buy that brand? Is that what they really want their customers to think of them, that they’re unthinking morons? Nice marketing ploy, guys!

“While we have great respect for Caterpillar, we consider this without legal merit,” Disney said in a statement in response to the suit. “We expect the audience will view these sequences for their comedic value and not take them seriously.” Otherwise known as the application of common sense and the consideration of a reasonable interpretation of the context by ordinary people.

U.S. District Court Judge Joe McDade agreed with that concept. He was unimpressed with Cat’s arguments and refused to issue the preliminary injunctions the company asked for. McDade said there was no evidence that Disney was attempting to “somehow poach or free ride” on Caterpillar’s trademarks to increase the movie’s sales. He doubted that the use of the logo on the machines in the movie would make anyone think the company supported or endorsed the film, and the appearance of well-known trademarks in movies or TV shows was indeed a “common phenomenon.”

Caterpillar said they’d study the ruling before deciding what to do next. Stella’s suggestion: quit acting like the big mean company you’re accusing Disney of making you look like!

But Wait: They Aren’t Alone!

Meanwhile, toy manufacturer Wham-o of Hula Hoop and Frisbee fame is also steaming mad at a movie: Dickie Roberts: Former Child Star starring David Spade. In the film, Spade tosses a “Slip ’n’ Slide” on his lawn, coats it with oil, and jumps on. He slides past the end and crashes into a fence. An obvious comedy bit, sure, but that’s way too much for Wham-o.

The toy company filed suit against Paramount Pictures and Happy Madison Productions contending the film (yep!) infringes its trademark. It asks the court to order Paramount to pull the film from theaters and either remove the scene or add a disclaimer that people ought not to try that at home.

They say the scene violates the toy’s “safety guidelines,” which among other things says the toy should only be used by children aged 5–12 weighing less than 110 pounds and under 5 feet tall — which, come to think of it, sounds very suspiciously like an exact description of David Spade.

Sources

  • “George of the Jungle, Watch Out for That Lawsuit!” Reuters, 15 October 2003.
  • “Caterpillar Sues to Block Release of Disney Movie,” Associated Press, 15 October 2003.
  • “Judge Refuses Caterpillar Request to Block Disney Release,” Associated Press, 20 October 2003.
  • “Slip ’n Slide Makers Sue ‘Dickie Roberts’,” Associated Press, 8 September 2003.

Case Status

Quite a few readers justified the case against Disney using the “Two wrongs make a right” doctrine. One argued: “I’m rather surprised at your attitude toward this action by Caterpillar unless you are unaware of Disney’s practice of prosecuting copyright infringement. If someone else used a Disney character in one of their movies I feel safe in assuming Disney’s attorneys would be hot on their case to have it removed. Caterpillar is doing no less than this. It would have been easy to have used a generic type of earth moving equipment in this cartoon, as has been done in others.”

Trademark and copyright are both “intellectual property,” but they are vastly different concepts. While I’d welcome a case submission of Disney filing a frivolous suit, I’m not aware of any recent ones, and my call for readers to bring any to my attention brought silence. Even if they have recently pressed such a suit, that has nothing to do with how frivolous Cat’s suit is: “Two wrongs don’t make a right.”

The judges in the case both agreed: both cases were tossed.

My 2021 Thoughts on the Case

When New York publisher Penguin published the TSA book, it hired a defense lawyer to review the manuscript to ensure the company wasn’t putting itself at too much legal risk by publishing these cases. He specifically balked at this particular one — but for an odd reason. He thought the humorous barb about David Spade at the end was somehow over the line. While I let him soften several things, I wouldn’t budge on that: public figures are definitely worthy of public comment, especially when it’s so obviously a bit of humor targeting a comedian!

He relented, and it did appear in the book.

But this isn’t the last time a manufacturer sued an entertainment outlet over trademarks. In 2006 NBC’s Heroes series debuted. In the first episode, Cheerleader Claire (Hayden Panettiere) sticks her hand in the sink and her hand is mangled by the garbage disposal unit. (It of course magically heals due to her “powers.”) But Emerson Electric was incensed: they could see that the garbage disposal was an InSinkErator brand — their brand! And the sequence “implies an incorrect and dangerous design for a food waste disposer” which “casts the disposer in an unsavory light, irreparably tarnishing the product.”

Oh my! Irreparably!

That, they said, was “unfair competition, trademark infringement, and trademark dilution.” Yeah, NBC planned to sell garbage disposers, hence it was obviously unfair competition to cast their unit in an unfavorable light!

067: Cat Fight
Emerson screencap from the show. See how their branding stands out like a sore …hand?

“Garbage disposals don’t chop off people’s fingers,” wrote a CNN columnist, tongue firmly in cheek. “People chop off people’s fingers.” Plus, “Anyone who willingly shoves their hand in a garbage disposal because they saw someone do it on TV is a moron. That’s not Emerson’s problem.”

Still, the damage had been (irreparably! ) done. The pilot had of course already been broadcast, but Emerson’s multi-count lawsuit, filed in the U.S. District Court in St. Louis, demanded an injunction against future broadcasts of the episode, among other things.

But they kissed in made up a few months later after NBC edited the scene to obliterate the InSinkErator logo, as (barely) seen in the accompanying screencap that Emerson filed with the court. It was termed a “settlement,” so maybe NBC provided some free advertising. After all, the year before, MediaPost noted, the company spent $420,300 on ads for its disposer line — all of it on NBC.

So much for “irreparable” damage.

Sources

  • “A Mangled Hand, a ‘Heroes’ Suit, and NBC”, CNN, 17 October 2006.
  • “Emerson Drops Product Placement Case Against NBC”, MediaPost, 23 February 2007

Letters

A little long this time since there are two cases to discuss, starting with the case of the family of a murdered woman suing AAA because she agreed to wait, and then made a terrible decision instead. People from all over the world wrote to condemn the parents for suing over the victim’s own decisions.

Kathryn in Tasmania, Australia: “Everywhere I look there are TV shows, warnings, Amber Alerts, and tragedies relating to children, which, as the mother of two small children, has brought me to tears on more than one occasion. Yes, what happened to Melissa Gosule was terrible, and my heart aches for her parents — yes, grieving people often look for someone to blame. But for goodness sake, my four-year-old knows never to go anywhere with a stranger! Gosule was older that I was when my son was born; what would she have taught her own children, had she had any? To accept rides from perfect strangers? I don’t think so.”

Indeed parents often have a “do as I say, not as I do” attitude — and then blame someone else when tragedy strikes. Funny how kids learn more from their parents’ actions than their words. One wonders if some of that is at work in this case.

Neeltje in Namibia: “I feel sorry for the parents who lost their daughter, but hell, they should sue themselves. My mom taught me to never, ever, get into a car with strangers. I was only four the first time I refused to get into a car with somebody. Don’t people read the papers anymore?”

Many readers wondered about what Gosule’s parents taught her. Here’s another tidbit I’ve learned since writing the case: Gosule was a substitute teacher in Boston! Makes you wonder what she taught those kids, doesn’t it?

Yogin in India: “I don’t know what is more pitiable, the fact that the late Ms. Gosule could trust a complete stranger, or the fact that her parents are trying to hide their own bad child-training by suing AAA. ‘Had AAA done what they tell the world they do — provide reliable and reasonable emergency roadside assistance — Melissa would still be with us,’ [her mother] Leslie says. Don’t the idiots realize that just by saying this, they are exonerating AAA of responsibility? The tow-truck driver did arrive at the spot to provide ‘reliable and reasonable emergency assistance’. He was even willing to tow her all the way to Boston, [but only] after he had finished other pressing matters. If that’s not reliable and reasonable, I wonder what in the world is! Stop being greedy. Your daughter obviously couldn’t see sense. I hope you do.”

A Massachusetts State Trooper wrote to provide some other extra details not in the TSA report:

“This story got a lot of press around here. This occurred on a Sunday in July. I don’t know if you’re familiar with Cape Cod or not, but the Sagamore bridge is one of two 4-lane bridges that span the Cape Cod Canal to link the Cape with rest of Massachusetts. On any given Sunday in the summer, traffic is backed up for miles as vacationers from all over New England head home. The 60-mile trip to Boston would have likely taken 2 or 3 hours to complete. Would it be reasonable for the tow truck driver to leave the Cape for 3 to 4 hours, while there are dozens of cars overheating and running out of gas in this traffic jam? I’m sure someone would have sued if they had to wait for AAA to bring them a gallon of gas had he disappeared for 4 hours.

“Another point: although [Gosule] lived in Boston, her parents live in Brockton — only 45 minutes away, since 90% of the traffic is LEAVING the Cape on Sunday. I guess they had no ‘duty’ to pick up their daughter. According to local news, she was asking strangers for a ride home BEFORE the tow truck arrived. One woman she approached warned her about taking rides from strangers.”

Janet in Wyoming: “As a AAA member and mother of an 18-year-old attending school in another state, [the case] concerns me greatly. When my daughter started driving, I bought a [AAA] membership for her. We’ve had to call several times over the years for dead engines, locked-in keys, etc., and the first question the AAA service rep always asks is ‘Are you in a safe place?’ Though I can’t imagine any logical court or jury finding AAA or the tow-truck driver responsible or even slightly negligent in the Gosule case, I would truly hate for AAA to be forced to use their resources and raise their reasonable rates to fight nuisance suits. Will it soothe her parents’ minds to know that denial of their daughter’s responsibility for a tragic decision is likely to price AAA insurance out of the reach of many other young women who will then have no choice but to rely on possibly dangerous strangers? That’s quite a legacy.”

I think it’s unlikely they ever considered that idea.

David in Colorado: “Wow! The effects of that suit’s success would be VERY far-reaching! How many companies are selling ‘safety nets’? Burglar alarm companies would be liable for every break-in. Fisher-Price would be liable for every baby that died near its little monitor device. Navstar would be liable for every driver’s wrong turn.”

Quite a few readers wrote to relate their own AAA horror stories, and thought AAA should be held more accountable. Maybe so, but that has little to do with the case at hand, and of course I’m left to wonder what percentage of AAA’s calls have “horror stories” attached to them. And many wrote to take exception to my characterizing Gosule’s 60-mile tow request as “an extraordinary level of service.”

Jon in New Jersey: “What happened is unfortunate, of course, and of course we see much too much litigious behavior, but the AAA is wrong is this case [since] ‘AAA-Plus’ members are entitled to be towed to any destination they choose within *100 miles* at no additional charge. I would have insisted that they tow me without further delay according to my membership rights.”

Yes, there definitely is an extra-cost “Plus” option at AAA. But Gosule didn’t have that coverage. AAA’s normal policy is four miles (source: aaa.com), which is why I called her demand for fifteen times that limit “extraordinary”.

So how do I know Golsule’s membership wasn’t “Plus”? Because she wasn’t a member at all! Therefore, Gosule called her stepfather, Peter Glaser (whom you might remember is one of the people who sued!), who did have a “Plus” membership, and he’s the one who called AAA. Yet the “Benefit Guide” on AAA’s web site notes that members are covered “in a eligible vehicle in which you are riding or driving” (typo from the original). It certainly does not cover other people in their own cars when the member isn’t even present — AAA’s guide notes that “Roadside assistance benefits are not transferable.” Yet the AAA driver went out anyway, and provided her service, and agreed to the lengthy tow after a short wait. How could anyone think that AAA and the driver were responsible for Gosule’s actions?!

Then the case of the lady “trapped” in a storage unit brought a lot of mail, but this time I led with an “anti” comment, and I’ll let it be the only voice so there’s room for more general letters.

Bill in California: “Got to disagree with your conclusions on this one. Wanda [Hudson] did not lock herself into her storage unit; the unit manager did it. His action, his responsibility. His negligence, too. It amazes me that he didn’t check into the unit before locking it — I would have thought that would be basic training. Wanda’s mental incompetence could well have contributed to the length of time she was in there, but who can tell for sure? The amount actually awarded seems reasonable to me.”

The issue here, Bill, isn’t the action — locking her in. Would $100,000 be reasonable if he locked the door and, while he was walking away, Hudson yelled “HEY! OPEN THAT DOOR!” and he went right back and let her out? If so, then maybe you’re right. However, the damage wasn’t caused by being locked in per se, but by being locked in for 63 days. And this was solely due to Hudson’s mental illness because she quite simply did not call out for help — for two months!

The crux of the case was that the jury was prohibited from hearing evidence about her mental illness, which quite clearly explains why she didn’t call out. Indeed, even though the jury didn’t have that key bit of information, it still only awarded her one percent of her asked-for damages.

Now for a look at the Bigger Picture.

Carol in ACT, Australia: “I always enjoy (if that’s the right word) your awards and feel something akin to pity for these people who think the world owes them something for having their story rearranged. How ‘traumatized’ people can get when something unfortunate (not even close to life threatening) happens to them, which is simply an accident or could not be foreseen. [People feel] they can’t live their lives any more because of the horror they feel. I sometimes want to shake them and say, ‘Get on with your life! Don’t you realize how lucky you are?’ If they compared their circumstances with someone who has been truly damaged physically, they would see that they are simply dwelling on the down side of life. I am partially disabled and I thank my lucky stars that I can still see (if not perfectly) and hear and am for the most part mobile. I have limits but if I sit around thinking of all the things I can’t do, I would be clinically depressed all the time, not just now and then.”

Steve, a corporate safety officer in Georgia: “I really enjoy the fact that you publish comments from your international subscribers. I find their points of view interesting; however, I do find it disturbing that some countries seem to be following our lead down the slippery slope to lawsuit hell.”

Steve in Florida: “There once was a ‘reasonable man’ presumption in jurisprudence. Since it seems to have vanished, perhaps what we need is a new law covering ‘felonious stupidity’ as a trump card to be played by the defense in some of these ‘sue the deep pockets’ lawsuits.”

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3 Comments on “067: Cat Fight

  1. I cannot imagine that any infringement litigation could be (salaried/retained?) attorneys attempting to justify their miserable existence (exorbitant bills). Equally, none could be simple publicity-seeking. If I’m wrong, I can certainly Get Out Of Hell Free ‘cuz I have a whole box of cards promising as much and if they don’t work I’LL SUE! 😉

    Big corps have their own lawyers on staff — especially when the corp’s business is intellectual property. As for Get Out of Hell Free cards, I know they work: not one person has ever come back to tell me that they had a card and it didn’t get them out of hell. -rc

    Reply
  2. Can someone briefly explain about product placement in movies and TV shows? I remember watching, I believe, “One Day at a Time” back when it was on — one character was drinking a soft drink. It was a Pepsi. The word “Pepsi” was taped over, but the symbol (the globe-like thing around the name) was visible. My guess was that no soft drink company wanted to pay to have their product name in the program.

    I have seen TV movies that show the front grill of a Ford vehicle — but the name Ford was covered/removed.

    Maybe Cat should have sued more along those lines — or Disney should have found a heavy-machinery company willing to pay to have their product in the show/movie.

    On another topic: as far as taking a ride from a stranger — or giving a stranger a ride — trust your “gut feelings.” There are countless people who have hitchhiked without issues. I have given two strangers rides on two different occasions, plus took got a ride from a stranger; there was no problems and I enjoyed getting to know the strangers.

    I think it’s correct that production companies will often cover brand names to save that for when the brand pays for “placement.” That doesn’t translate to if they don’t cover it, the brand has grounds to sue. Think about it: does that make any sense? As for gut feelings, plenty of people have trusted a calm gut and didn’t live to tell the tale. -rc

    Reply
  3. I think it’s wonderful that the lawyers are getting paid for entertaining us through your Stella awards time after time, Randy. The wonder is that they actually passed the bar!!!

    Reply

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