November 2017


A periodic skim of intriguing news and numbers from the world of commercial litigation.

$677 million

is how much the global blockbuster “It” has grossed since its release in early September. However, not everyone is a fan: Burger King Russia is attempting to get the notorious clown (Pennywise) banned from the big screen in that country. The American burger chain has filed a complaint with the anti-trust monopoly business board in Russia (yes, there is one) to ban the Warner Bros. movie, claiming that Pennywise could be construed as free marketing for fast-food rival McDonald’s. The film’s main character, according to the claim, is “an exact copy” of the chain’s mascot, Ronald McDonald, “including the color range and the [balloons] with which the clown lures children.” (Both clowns are pictured below.)



$1 billion

is the amount demanded in the ongoing trademark dispute between Netflix and the brother of Pablo Escobar, the deceased Colombian drug lord and main character in the Netflix hit Narcos. Escobar Inc. claims that Netflix has reaped substantial financial benefit by using the company’s trademarks, “Narcos” and “Cartel Wars,” as well as the family story without permission. Netflix attorneys fired back that the claim is highly fraudulent.  For example, the Escobars claim that the family has used the term “Narcos” on websites since 1986, some five years before the public internet even existed!



is the per-cup fine associated with failing to post a cancer advisory on coffee in California. Under Prop 65, enacted in 1986, the Council for Education and Research on Toxins need only allege trace amounts of the chemical acrylamide to bring suit against coffee brewers, including Starbucks, Target, 7-Eleven, and Whole Foods. While there has been no scientific evidence produced that trace amounts of the carcinogenic by-product produced from roasting coffee harms consumers, the burden of showing there’s no significant risk falls to the companies. Last year, 760 Prop 65 suits were filed and settled for a total of $30.2 million, of which $21.6 million went to legal fees.



is the year George de Mestral patented his fastening fabric, commonly known as Velcro. Since Velcro’s patent lapsed 40 years ago, other companies have been able to produce the hook and loop fasteners that the brand became known for. Now a victim of its own commercial success, Velcro is facing genericide, which is what happens when a brand name loses its distinctiveness and becomes the generic name for the type of item. However, its (very creative) legal team is determined to educate the public that “Velcro” is not the name for a type of fastener, but the name of their formerly patented one, in particular. What better way to educate consumers on the proper name than with a viral music video featuring the legal team themselves? “This is a hook and this is a loop,” croon the attorneys in the video. The video is very, well, catchy.


$3.4 billion

is the estimated amount Americans spent on costumes this past Halloween. Amidst the Halloween madness was a clash over the rights to a banana costume. Rasta Imposta, a wholesaler of said costume, is accusing former purchaser Kmart (owned by Sears) of selling an imposter design, which was sourced from another wholesaler. Even though its last name is “Imposta,” the company did not take kindly to others selling similar goods. The complaint alleges that the new Kmart banana costume was a copycat design, which constitutes copyright infringement, unfair competition, and trade dress infringement. Fortunately, the banana split came to an end in the form of a settlement and an agreement by Kmart to resume buying from Rasta Imposta.