Legally Speaking: It's Just Not Christmas Without the Tree, the Turkey -- or the Lawsuits

John G. Browning Dec. 7, 2010, 8:34am

Call it the product of a mind warped by three years of law school and over 20 years of "thinking like a lawyer." When the Christmas season rolls around, my mind doesn't drift to visions of sugarplums, flying reindeer, or a jolly old fat man in a red suit with a penchant for breaking and entering.

Oh, no – I think of the lawsuits that are coming. Because if there's one thing that marks this holiday more than any other, it's the litigation that inevitably ensues.

Take the fight over Christmas trees, for instance. No, I'm not talking about the live ones you bring back from a lot tied to the roof of your car. I'm referring to a tabletop Christmas tree, complete with balsam fir branches, fake holly berries, and a real bow, that's a hot item in the L.L. Bean holiday catalog.

The little trees are made by Whitney Originals exclusively for L.L. Bean. But a few weeks ago, the Harrington, Maine, company Worcester Wreath filed a lawsuit in federal court in Bangor accusing Whitney Originals of infringing Worcester's patented decorative tree design.

The competing trees look very similar, although the Worcester version also has pine cones and sells for $49.95 (the "Whitney's Traditional Balsam Tabletop Tree is $64.95 in the L.L. Bean catalog).

Of course, dig a little deeper and you'll learn there's a history here. The two competing companies have a relationship as prickly as the pine needles on their trees. Up until sometime in 2009, Worcester had a contract with L.L. Bean, and lost it to Whitney Originals.

When Whitney began building a "state of the art" warehouse capable of shipping up to 18 tractor-trailer loads of wreaths each day, Worcester sued to block construction of the warehouse, claiming it violated a right of way (the suit was later settled).

Even before that, Whitney challenged Worcester's Christmas tree patent in 2000, only to lose and have a federal judge uphold the patent as valid. Whitney then negotiated a license to offer its own version of the Worcester tabletop tree (as long as it was not an exact copy).

While lawyers for Whitney maintain that "Whitney Originals has taken specific steps to make sure its decorations are distinct," Morrill R. Worcester insists that the long-simmering dispute between the two companies is for a federal judge to decide.

"If we're right, we're right, and if we're wrong, we're wrong. I guess that's it," he says.

For many people, the holidays just aren't the holidays without a Greenberg smoked turkey. This year, you can have your turkey with all of the trimmings – stuffing, cranberry and a copyright infringement lawsuit.

You see, since 1987 the Tyler-based Greenberg Smoked Turkeys Inc. has distributed its turkeys with a set of instructions that's about three paragraphs long. In 2003, the company made these same instructions available on its website.

But after that, Greenberg's lawyer claims, a Houston-based turkey competitor, Goode-Cook Inc., began copying these instructions and posting them on its website as well.

Claiming that the instructions contain "copyrightable subject matter," Greenberg filed a copyright infringement lawsuit against Goode-Cook two days before Thanksgiving in the U.S. District Court for the Eastern District of Texas in Tyler.

Greenberg is seeking an injunction barring Goode-Cook from violating its copyright, any profits that the Houston company has made as a result of the alleged infringement, as well as other damages and attorney's fees. It sounds like someone wants to "gobble" up the competition.

While you don't experience much plum pudding in the U.S. except through Christmas card references, over in England it's still a Yuletide favorite.

While recipes for Christmas pudding or plum pudding vary, they usually feature a rich boiled or steamed concoction heavy on fruits and spices. They also usually are prepared with silver coins or charms in the mix, so that some pudding consumers will find one in their serving – traditionally, a sign of good luck not unlike the prize in a New Orleans-style king cake.

Some London restaurants have begun asking diners to sign liability waivers, relinquishing their right to sue over things like chipped teeth before they can eat their Christmas pudding.

Neleen Strauss, the owner of the restaurant High Timber in central London, says "A lot of my customers are lawyers and they suggested it. It's a bit crazy but I decided to take their advice."

So much for peace on earth and good will toward all.

Finally, it just wouldn't be Christmas without Christmas music, right? Not according to inmates in Phoenix, Ariz., who in 2009 filed multiple federal lawsuits against Maricopa County Sheriff Joe Arpaio over his office's policy of playing Christmas songs for 12 hours a day in the county jails.

The lawsuits, which alleged violations of the prisoners' rights, were thrown out of court by federal judges and a vindicated Arpaio announced that he had no plans to change his Christmas music marathons.

I don't know- 12 hours straight of nothing but Christmas music, day after day? Sounds like "cruel and unusual punishment to me."

Yes, it's just not Christmas without the lawsuits. As Tiny Tim might have said, "God bless us, everyone. Even the lawyers."

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