Thursday, July 28, 2011

The Federal Court Show: Take This Court Opinion -- Please

Who needs David Letterman, Jay Leno, Jon Stewart, Stephen Colbert or SNL, when we have the Seventh Circuit Court of Appeals? For good times and good humor, nothing beats the Seventh. I’m not certain if the Seventh’s high rise building in downtown Chicago allows the car fumes to wisp upwards or if it is just too dog gone hot in Chicago during this time of year, but the Seventh Circuit cuts some funny opinions.

Why, take today’s opinion – please. The case of Georgia-Pacific v. Kimberly-Clark is chuckles-filled. As Judge Evans points out, time and time and time again, this case deals with toilet paper. And to underscore the focal (oops, I almost wrote fecal) point of the case, the court observes “Are there many other things most people use every day but think very little about? We doubt it.” As funny as this is (repeat: toilet paper, toilet paper, one more time, toilet paper), there’s more. The opinion next targets “top-rate intellectual property lawyers” who breathe the “rarified air” of unfair competition and trademark infringement under the Lanham Act. Now that’s funny. Judge, you had me with toilet paper!

But wait, there’s more. Judge Evans soon lapses into song, “‘I wish I was in the land of cotton, old times there are not forgotten.’” And quickly, lest we forget, the opinion reminds us “But again, this case is about toilet paper, and who really pays attention to the design on a roll of toilet paper?” Apparently, the paper companies.

Indeed, the case is not about toilet paper but about trademark infringement relating to the lattice designs embedded into the sanitary product and its packaging. Toilet paper and its packaging happen to be the medium on which the trademarks appear.

After several pages of chuckles, the opinion settles down a bit and begins an analysis of common trademark concepts of incontestability, trademark functionality, a Supreme Court case, and trade dress. But, candidly, by the time the opinion talks about law, I lost interest. I want to hear more of toilet paper and Dixie! In fact, the legal portion of the opinion relates to the lighthearted quips in the same way that Stiller & Meara related to the audience during The Beetles first appearance on The Ed Sullivan Show – not well. The only thing the opinion does not do is to criticize the hyphen used by each party in their corporate names. Perhaps the court was holding back?

Two days ago, the Seventh gave us another slammer: White Pearl Inversiones S.A. v. Cemusa. Judge Easterbrook did not provide in White Pearl the same level of comic flair as Judge Evans – perhaps this is why he is the chief judge – but the White Pearl opinion possesses sufficient in-your-face sarcasm to rank up with the best of them. In the midst of important analysis concerning jurisdiction and choice of law relating to a contract dispute between foreign entities, the opinion attacks the lawyers. Judge Easterbrook makes certain that we understand that “White Pearl’s lawyers have scoured the legal phrase-book.” He tells us that “White Pearl is represented by the Chicago office of Wilson, Elser, Moskowitz, Edelman & Dicker; Cemus is represented by the Miami office of Hunton & Williams plus the Chicago office of K & L Gates.” Then to underscore the significance, he explains that “All three are substantial law firms with expertise in business law and international trade – as one would expect when a Uruguayan firm based in Rio de Janeiro sues the U.S. component of a multinational enterprise based in Madrid.” Now we know. Of course, none of this has anything to do with the merits, but who cares? It’s fun to attack lawyers and it’s fun to read about an attack on lawyers.

These opinions are not the first time that the Seventh has reached down to vaudeville. But there’s no point dragging up old cases, and old jokes. You get the idea. Courts that treat litigation, litigants and their counsel lightheartedly should not expect too much respect in return. Is this too harsh to state? No one views David Letterman as anything other than a jester. He may be a brilliant man. He may be extremely learned in many subjects. But who cares. He’s F U N N Y. Is this how the Seventh wants to be viewed; irreverent, frivolous, sarcastic, impudent, belligerent? I’m running out of adjectives, someone help me – please.

I wish I was in the land of cotton …

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