Legally Speaking: Santa Claus is coming to town, and he's bringing a lawyer

John G. Browning Dec. 18, 2007, 5:55am

Children everywhere rejoice in the idea of jolly old St. Nick arriving on Christmas in his reindeer-powered sleigh laden with presents. But if things keep moving in the direction they're heading, the fat man in the red suit is going to need more than elves to help him out – he's going to need a lawyer.

First of all, Santa better hope he can steer clear of the lawsuit being brought by California Attorney General Jerry Brown against 20 leading toy manufacturers and retailers for allegedly selling toys containing "unlawful quantities of lead." In November, the attorney general filed the case in which he accuses companies of knowingly exposing children to lead and failing to provide warning of such a risk – a violation of California's Safe Drinking Water and Toxic Enforcement Act of 1986.

Brown named not only toymakers like Mattel in the lawsuit, but also such major retailers as Wal-Mart, Target, Sears, Toys R Us, KB Toys, and Costco. If they're found guilty, the businesses face significant exposure, with each separate violation of the Act subject to a $2,500 fine.

The action follows a number of major recalls of toys and children's jewelry over the past year by the U.S. Consumer Product Safety Commission, as well as voluntary recalls by toy companies. In June, RC2 (one of the defendants) recalled 1.5 million Thomas & Friends Wooden Railway sets, and Mattel has had a series of recalls of toy cars, trains, Barbie doll accessories, and Sesame Street preschools toys. Let's hope Santa's workshop at the North Pole didn't do any outsourcing to China.

Santa Claus might not fare any better if he delivers children's books, at least in England. Leading children's author Lindsey Gardiner has been ordered by her publishers to drop a fire-breathing dragon featured in a new book – because of fear of lawsuits!
Concerned over possible liability in case children act out the stories, Orchard Books decreed that scenes such as the dragon toasting marshmallows with his breath would have to go.

According to the author, who had previously been told to eliminate a scene from another book of a child on a ladder, "sales and marketing departments are worried something might offend somebody, or that a child might copy something in a book and their parents will sue the publisher."

Just think if such "politically correct police" had their way – classic fairy tales like Hansel and Gretel (too much violence) or Jack and the Beanstalk (kids might get hurt climbing) would never be published today. Ms. Gardiner laments, "It's a sad reflection of modern society."

Of course, closer to home, Santa Claus has had even more legal concerns. No, I'm not talking about department store Santas taking out liability policies to cover themselves for everything from dropping a child to claims of sexual harassment – that's an unfortunate reality, and one documented by the Los Angeles Times a few years ago in a story titled "Ho!Ho! Is More Like Uh-Oh." I'm talking about even scarier foes – the U.S. Postal Service and the U.S. government.

For more than 80 years, the U.S. Postal Office was arguably Santa's biggest helper. As part of the heart warming tradition of "Operation Santa" postal workers and volunteers would read through letters addressed to Santa, and help fulfill the Christmas wishes of thousands of needy children.

Postal workers would forward letters to members of the public who offered to answer the Christmas pleas, would accept donations and gifts themselves (and sometimes pay for gifts out of their own pockets), and they would also wrap and deliver the gifts to children by Christmas.

Now, however, at the Newark, N.J., Post Office (where more than 20,000 gifts were delivered to underprivileged children last year alone), jolly old St. Nick has had to lawyer up.

While the post office will still hand out "Dear Santa" letters to those who want to donate, prospective donors must now come to the Newark Post Office, present a photo ID, and sign a contract, complete with an indemnity clause.

The "Operation Santa Letter Adoption Individual or Third Party Agreement" stipulates that the donor will hold the U.S. Postal Service harmless "against any and all causes of action, claims, liens, rights or interests of any kind or type whatsoever."

As soon as he or she signs on the dotted line, then the donor can send the gift directly to the child who wrote the letter, after paying for the delivery cost as well. According to USPS regional spokesman George Flood, "I know it sound bad, but in these litigation times, the Postal Service had to institute safeguards. It was a prudent business measure. We had to protect ourselves and the children."

Just in case Santa survives dealing with the lawsuit-conscious Postal Service, he'll next have to contend with the U.S. Patent and Trademark Office, which has taken the official stand that – cover your ears, kids – Santa Claus does not exist.

It all began back in 2000, when a British company called Father Christmas applied to the USPTO for trademark protection for the name "Santa Claus" for use of its Web site,

Not such a big deal, right? After all, in the past, the Patent Office has approved a whole host of holiday-themed trademarks. Everything from "Santa's Elf" clothing to "St. Nick's" beer to "Santa Claws" pet apparel has been trademarked. Lawyers even trademarked the image of "a red-tipped nose on any fanciful deer-like animal," and later sent a cease-and-desist letter to a greeting card company that featured Rudolph the Red-Nosed Reindeer on holiday cards.

But in the world of intellectual property law, whenever a company attempts to trademark the name of a living person, the government requires written proof that the person consents to having his or her name trademarked. The USPTO did not require such proof, and issued the trademark. According to Brigid Quinn, a USPTO spokeswoman, "We do not believe Santa Claus is a living person, no."

Despite the best efforts of the Patent Office to shatter the beliefs of innocent children everywhere, Santa and his lawyers just may have the last laugh. Trademark experts contend that the "Santa Claus" mark won't withstand a legal challenge, because he's part of the public domain.

Lawyer Mitchell Staffe says "You can't use federal trademarking to divest people of rights they've enjoyed for years. I don't want to sound like a Grinch, but this won't hold up."

Santa also has to contend this year with the overly zealous, hyper-politically correct warning label police. The National Christmas Tree Association claims that some artificial trees containing low levels of lead require what in California is known as a Proposition 65 warning label: namely, one that states "this product contains a substance known to cause cancer or birth defects."

Putting aside my skepticism over how an artificial tree can pose a risk of cancer or birth defects, I find it ironic that this is happening in California. Back in 2003, political activists there convinced the legislature to ban certain flame retardant chemicals – with the effect that preventing forest fires became more difficult and expensive.

The very same "green" Californians who were intent on being environmentally correct by saving more trees from being cut down now get to look at their artificial trees festooned with cancer warning labels. Now that's a priceless moment!

Perhaps the most ridiculous warning labels you'll see this holiday season appear on DVDs of older episodes of the children's show "Sesame Street." Worried that children might get the wrong impression by seeing Cookie Monster (he encourages overeating and obesity, don't you know) or Oscar the Grouch (obviously a case of antisocial behavioral disorders), these DVDs bear the caution that some content "may not be appropriate for children."

It's a children's show, for crying out loud! Was this warning label brought to us by the letter "R," for ridiculous?

These are just some of the real world legal tribulations facing the jolly old soul in the big red suit. But other potential legal problems abound. For a guy whose name sounds like something a lawyer would draft, you'd think Mr. Claus would surround himself with lawyers.

After all, who's going to defend St. Nick from the class action suit brought by disgruntled children who wind up on the naughty list? And who's going to protect Santa from the privacy rights lawsuit brought by the ACLU, concerned that Kris Kringle not only sees you when you're sleeping and knows when you awake, but that he also maintains a vast database of who's been bad or good (which he checks twice)?

Yes, with all that's been going on, don't be surprised if you hear something besides the clatter of reindeer hooves on your roof this Christmas. You might just hear the patter of tasseled loafers and the sound of briefcases being opened.

Santa Claus is coming to town, and this time he lawyered up.

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