Archives for posts with tag: teenage mutant ninja turtles

This is a 2005 case of school bullies picking on an effeminate teenager, and the student sued the school district for deliberate indifference to the same-sex gender harassment. He claims he is not gay but basically he sued for being called gay. The student won at trial and this opinion upholds the judgment, a major win for anti-bullying and gay rights.

DYLAN J. THENO, Plaintiff,
v.
TONGANOXIE UNIFIED SCHOOL DISTRICT NO. 464, et al., Defendants.

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF KANSAS
394 F. Supp. 2d 1299

Decided, October 18, 2005, opinion by Judge John Lungstrum:

This case arises from same-sex student-on-student harassment of plaintiff Dylan J. Theno while he was a junior high and high school student in defendant Tonganoxie Unified School District No. 464. The jury returned a $ 250,000 verdict against the school district on plaintiff’s claim that the school district violated Title IX of the Education Amendments Act of 1972 (Title IX), 20 U.S.C. §§ 1681 et seq., by being deliberately indifferent to the harassment. This matter is presently before the court on the school district’s renewed Motion for Judgment as a Matter of Law (Doc. 148) pursuant to Fed. R. Civ. P. 50(b).

One of the claims of the school district’s motion is “that the evidence at trial was insufficient to prove that plaintiff was harassed based on his gender”

The Court explains:

The school district argues that there was no evidence plaintiff’s harassers were motivated by perceptions that he was effeminate or homosexual. Rather, they simply picked on him and teased him by using sexually charged words and themes as a crude topic for teenage banter. According to the school district, for example, “the masturbation jokes were motivated by the harassers’ desire to be funny, or to provoke or embarrass plaintiff using a socially awkward subject.” The school district argues that plaintiff tried to fashion a gender-based harassment claim “by showing that he was not a typical boy’ because he had an unusual hairstyle, enjoyed Tae Kwan Do, and wore an earring,”

Therefore,

The school district contends that, viewing the evidence in the light most favorable to plaintiff, the harassment was motivated by his failure to meet social stereotypes, not gender stereotypes, inasmuch as his individual style and interests were considered “uncool” by his peer group. Thus, the school district argues that the harassment was akin to plaintiff having been called “geek,” “weirdo,” or “spaz.”

Plaintiff testified to being called “pussy”, “flamer”, “faggot”, and “queer”. So the Court disagrees with the school:

Certainly, this [the school’s argument] is one permissible view of the evidence and if the court were to view the evidence in the light most favorable to the school district, the jury could have properly found for the school district rather than plaintiff on this element. But of course the court must view the evidence in the light most favorable to plaintiff at this procedural juncture. Viewed in such a light,the court concludes after careful consideration of this issue that the evidence was sufficient for the jury to find that plaintiff’s harassers were motivated by his failure to conform to stereotypical gender expectations.

Specifically, the Court notes that

Plaintiff testified at trial that his childhood interest in the Teenage Mutant Ninja Turtles sparked his interest in Tae Kwan Do. He began doing Tae Kwan Do when he was seven years old and continued through his high school years, and he was apparently quite good at it.

And there they are again. The Ninja Turtles brought up in a Federal Court opinion for no particularly necessary reason. Here they justify the plaintiff’s interest in Tae Kwon Do as an ordinary boyhood interest, but also they appear here again serving as a symbol of multicultural values. Recall that the Ninja Turtles were cited in connection with the Burger King Kids Club because they represented a prior multi-ethnic cartoon. Recall also the similarities between the BK Kids Club and the modern television show “Glee”. Further note that the story of this Dylan Theno case, that of (gay) bullying is a familiar plot on the show.

dylan thenoglee curt
glee slushy

Dylan Theno’s story has received substantial attention. Here are a few links for some more information:

A fellow wordpress blog called “Dylan Theno Fights the System” explains a lot.

ABC news covered the story in August 2005 when Theno first won the jury trial: “School Ordered to Pay $250,000 to Bullied Teen”

And a December 2005 article (two months after the case decision above) explains that a settlement was ultimately reached “Student reaches $440,000 settlement in sex harassment case”

A video posted in 2011 has Theno discussing the bullying.

This 2005 tax case involved three movies with Ninja in the title. It is also the only federal case with both “ninja” and “zombies” in the opinion – See ZombieLaw: “Astro Zombies in Tax Law” for a prior writeup of this case: Santa Monica Films v. IRS.

SANTA MONICA PICTURES, LLC, PERRY LERNER, TAX MATTERS PARTNER, * Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent CORONA FILM FINANCE FUND, LLC, PERRY LERNER, TAX MATTERS PARTNER, Petitioner v. COMMISSIONER OF INTERNAL REVENUE, Respondent

Nos. 6163-03, 6164-03
UNITED STATES TAX COURT
T.C. Memo 2005-104; 2005 Tax Ct. Memo LEXIS 104; 89 T.C.M. (CCH) 1157

Opinion by Judge Michael Thornton, filed May 11, 2005

The following film titles and development projects were listed in Schedule 1.6(b) of the exchange and contribution agreement as assets of SMHC:

57. Ninja Hunt

58. Ninja Showdown

59. Ninja Squad



All three are listed by the Court as 1987 movies (though IMDB suggests 1986). The Opinion also reveals that they were originally in the “EBD film library”. They were then sold. The Court notes difficulties in determining the market price of movies because of issues finding comparable films. For comparison noting the movie “Teenage Mutant Ninja Turtles”.

in 1993, New Line sold 200 features to Turner Broadcasting for $ 500 million ($ 2.5 million per title); … in 1997, Orion/Samuel Goldwyn sold 2,000 features to MGM for $ 573 million ($ 286,500 per title).

[footnote #135]:
The film library that New Line sold to Turner Broadcasting included the film titles: “Teenage Mutant Ninja Turtles“, “Misery”, and “City Slickers”. The film library that Orion/Samuel Goldwyn sold to MGM included the Academy Award-winning film titles: “Amadeus”, “Platoon”, “Dances With Wolves”, and “The Silence of the Lambs”.

The point is that these movies are not particularly comparable. The transactions involved shifted the losses from failed movies and were deemed to be a tax shelter. The Court here upholds the IRS ruling over the studio’s arguments.

This is, of course, not the first NinjaLaw Federal case to mention the Teenage Mutant Ninja Turtles, nor to mention them even though they are not necessarily relevant to the particularities of the case. Here in 2005, the Turtles movie is listed among a number of modern classics and blockbuster successes.

The 1999 district court opinion is by Judge Gregory M. Sleet about a partnership in bankruptcy. The Court has to determine whether certain payments were preferential and to be reclaimed by the company’s debtors. Here we see another unnecessary reference to Teenage Mutant Ninja Turtles, again likening them to Power Rangers and this time also to Barney.

In re: COLLEGEVILLE/IMAGINEERING, L.P., Debtor. COLLEGEVILLE/IMAGINEERING, L.P., Plaintiff, v. L.J. LIFF AND ASSOCIATES, LIMITED, Defendant. COLLEGEVILLE/IMAGINEERING, L.P., Plaintiff, v. LAWRENCE J. LIFF, Defendant.

Chapter 11, Civil Action No. 97-413-GMS and Civil Action No. 97-414-GMS
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF DELAWARE
1999 U.S. Dist. LEXIS 23622
October 5, 1999, Decided

In explaining how the company’s business went bad:

this new Partnership was fairly successful. Like its predecessor and namesake, the Partnership would build up a large inventory of non-licensed costumes (e.g., ghosts, goblins, witches, skeletons, etc.) early in the year and, then, secure the crucial licenses for the more popular characters (such as the Teenage Mutant Ninja Turtles or Barney) a few months before Halloween. As a result, the Partnership enjoyed a competitive advantage over other costume manufacturers since stores typically buy all of their Halloween products from one vendor. Because of its historical success in this area, the Partnership was able to fund its activities by borrowing heavily from its lender, Meridian Bank, during the year and then paying off its line of credit with the proceeds from its Halloween sales after the season had ended. For the most part, the Partnership’s loans were unsecured.

However, in the Summer of 1994, the Partnership learned that it would not able to obtain a license for the most popular characters of the season—the “Power Rangers.” Consequently, its sales suffered terribly and, by the end of the year, the Partnership had incurred a $10 to $12 million shortfall and was thus in default with respect to its obligations to Meridian.

Previous NinjaLaw cases about Ninja Turtles:

First mention of TMNT in Federal Courts
Sun Dun v Coca Cola – August 15, 1991

Teenage Mutant Ninja Turtles again – Retromutagen Ooze
Monarch v. Ritam – June 12, 1992

Ninja Turtles and Hollywood’s Horizontal Conspiracy
El Cajon v. AMC – October 23, 1992

First mention of Ninja Turtles in F.Ct. where it’s actually about them
Mirage Studios v. Weng et.al. – April 29, 1994

Burger King Kids Club with Mutant Ninja Turtles – multi-ethnic path to Glee and Celebrity Apprentice
CK Company v. Burger King – September 29, 1994

Ninja Turtles again, this time with FASA’s BattleTech, ExoSquad, RoboTech and Playmates
Fasa v. Playmates – June 19, 1995
(WITH POWER RANGERS)

Spam vs Spa’am with Splinter from TMNT and Pumbaa from Lion King
Hormel Foods v. Jim Henson Productions – September 22, 1995

Ring Pops not utilitarian so trademark protects after patent expired
Topps Company v. Verburg – December 12, 1996

Ninja Turtles as euphemism for Prison Response Team
Clark v. Westchester County – April 30, 1998

Statue of a Ninja Turtle – heroin in it
Reyes v. Miller – June 23, 1999

Alejandro Reyes was convicted of drug related offenses and filed petition for habeas relief alleging that evidence of statements made to police were admitted without proper notice and in violation of Miranda rights. The Court held that statements of pedigree information (“such as the defendant’s name, address, height, weight, age, eye color, and date of birth”) do not require notice or Miranda protections.

ALEJANDRO REYES, Petitioner,
v. DAVID MILLER, Superintendent, Respondent.
98-CV-199H
UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF NEW YORK
1999 U.S. Dist. LEXIS 12157

Decided – June 23, 1999

Opinion by Judge Carol Heckman:

Detective Grisanti searched another bedroom that was located on the left hand side of a dining room. Inside the bedroom was a statute of a ninja turtle. Detective Grisanti opened the top of the ninja turtle and found sixty-seven bags of heroin. The bags of heroin were wrapped in ten packages. Detective Grisanti testified that the heroin was packaged for sale. He also testified that the street value of the heroin was twenty dollars per bag.

For you math whizzes that’s about $1340 worth of heroin stuffed into a “statue of a ninja turtle”.

Plus “Approximately twenty-two ounces of crack cocaine were found in the bedroom” and “a loaded .38 caliber revolver inside a pocket of a coat that was hanging in the closet”.

The Court denies the petition finding no constitutional violations. But note, two defendants were arrested at the scene and they were tried together but only one was convicted. Is it because of the one’s statement admitting that he lived there? Was he then convicted based largely on his pedigree information while the other defendant was merely found at the scene.

This case joins a growing list of “Ninja Turtle” cases but the first that involves drugs. Previously I had been making a distinction between cases actually about involving Teenage Mutant characters and cases where they seem to be mentioned for no real reason. The case seems more like the latter because the Court did not need to mention the type of statue container. Courts seem to just like to mention the Ninja Turtles whenever possible.

Previous NinjaLaw cases about Ninja Turtles:

First mention of TMNT in Federal Courts
Sun Dun v Coca Cola – August 15, 1991

Teenage Mutant Ninja Turtles again – Retromutagen Ooze
Monarch v. Ritam – June 12, 1992

Ninja Turtles and Hollywood’s Horizontal Conspiracy
El Cajon v. AMC – October 23, 1992

First mention of Ninja Turtles in F.Ct. where it’s actually about them
Mirage Studios v. Weng et.al. – April 29, 1994

Burger King Kids Club with Mutant Ninja Turtles – multi-ethnic path to Glee and Celebrity Apprentice
CK Company v. Burger King – September 29, 1994

Ninja Turtles again, this time with FASA’s BattleTech, ExoSquad, RoboTech and Playmates
Fasa v. Playmates – June 19, 1995
(WITH POWER RANGERS)

Spam vs Spa’am with Splinter from TMNT and Pumbaa from Lion King
Hormel Foods v. Jim Henson Productions – September 22, 1995

Ring Pops not utilitarian so trademark protects after patent expired
Topps Company v. Verburg – December 12, 1996

Ninja Turtles as euphemism for Prison Response Team
Clark v. Westchester County – April 30, 1998

In this 1996 case Topps sued to protect its product, the Ring Pop, from competition. One of the reasons it won was because of the substantial advertising to non-sophisticated purchasers (kids), by means of cartoons. And so of course again, appearing somewhat unnecessarily in a Federal Court opinion, the Teenage Mutant Ninja Turtles.

ring pops

THE TOPPS COMPANY, INC., Plaintiff, – against – GERRIT J. VERBURG CO. and B.I.P. HOLLAND B.V., Defendants.
96 Civ. 7302 (RWS)
UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK
1996 U.S. Dist. LEXIS 18556; 41 U.S.P.Q.2D (BNA) 1412

December 12, 1996, Decided

The Court explains:

During the mid-1970’s, Topps developed the product for which it now seeks protection, the Ring Pop lollipop. It is comprised of a candy portion in the shape of a solitaire jewel, supported by a plastic base portion in the form of a stylized, or “play,” ring. The Ring Pop is held by inserting a finger through the ring, and the candy is then licked.

In 1975, Topps filed patent applications in the U.S. Patent Office on the “inventive” ornamental design for a diamond gemstone ring candy and was awarded two patents, Nos. Des. 242,646 and Des. 242,645 on December 7, 1976. These patents expired on December 7, 1990, but reference to them continues to appear on the Topps’ packaging.

On June 1, 1976 a trademark was registered for Ring Pop by Topps and on July 26, 1994 a trademark was issued consisting of “a candy portion in the configuration of a jewel mounted on a stylized ring.”

The Court continues explaining the high volume of sales and about

Topps’ advertisements on broadcast television during the past ten years of the Ring Pop emphasized the configuration of the product during children’s programming on well-known, popular programs, such as Tom & Jerry Cartoons, Teenage Mutant Ninja Turtles, and Power Rangers, shows specifically aimed at the children for whom the Ring Pop candies were conceived. The buyers of these products are not sophisticated purchasers.

Because the Court will rely on a likelihood of confusion analysis for the trademark infringement claims, the fact that the competing candy products “are expressly intended to be consumed by children” is important. The Court also notes other deceptive aspects of defendant’s packaging and that it “fails to meet the requirements set by regulations” of the US FDA as to nutritional labeling.

Though the competing product has been available in Hong Kong for as long or longer than the Topps Ring Pop product, and despite the expiration of Topps patent, trademark still protects the Ring Pop.

There is no inherent conflict between trademark rights under the Lanham Act and patent rights. Because the Lanham Act and the patent statute are both federal statutes, there is no preemption. A product can be both patentable and protected by trademark rights as long as the particular design protected does not have a utilitarian function.

Therefore, deciding the Ring Pop is not a functional design, the Court ordered a preliminary injunction. And in a subsequent motion decision, (April 28, 1997, 961 F.Supp. 88) the claims against defendant-manufacturer from Hong Kong were dismissed for lack of personal jurisdiction, leaving only the claim against the US distributor (which I assume was probably settled out of court..?).

Meanwhile, it seems a new relative of this case is coming back to the Courts. A false marketing claim was filed in May 2011, alleging Topps is violating marketing laws by continuing to list the patent numbers on Ring Pop packaging after the patents expired. See “Ring Pops: A Fun Way to Teach Your Kids about False Patent Marking” posted by Travis Burchart, Jun 2011 The complaint alleges that each Ring Pop sold violates marketing laws and if the Court agrees, Topps will be liable for a LOT of damages.

Finally, recall, this is not the first time we at NinjaLaw have seen the turtles mentioned unnecessarily and also not the first time mentioned with the Power Rangers. Last time we saw the Turtles team up with the Power Rangers in Federal Court, they served to exemplify the business model of cartoon merchandising. Here they help protect their sponsor Topps (baseball cards and candy and what else?), again implicating the susceptibility of kids to product marketing.


tmnt power rangers animation handshake
.

Previous NinjaLaw cases about the Ninja Turtles:

First mention of TMNT in Federal Courts
Sun Dun v Coca Cola – August 15, 1991

Teenage Mutant Ninja Turtles again – Retromutagen Ooze
Monarch v. Ritam – June 12, 1992

Ninja Turtles and Hollywood’s Horizontal Conspiracy
El Cajon v. AMC – October 23, 1992

First mention of Ninja Turtles in F.Ct. where it’s actually about them
Mirage Studios v. Weng et.al. – April 29, 1994

Burger King Kids Club with Mutant Ninja Turtles – multi-ethnic path to Glee and Celebrity Apprentice
CK Company v. Burger King – September 29, 1994

Ninja Turtles again, this time with FASA’s BattleTech, ExoSquad, RoboTech and Playmates
Fasa v. Playmates – June 19, 1995
(WITH POWER RANGERS)

Spam vs Spa’am with Splinter from TMNT and Pumbaa from Lion King
Hormel Foods v. Jim Henson Productions – September 22, 1995

Teenage Mutant Ninja Turtles will appear in at least ten Federal Court opinions. The first is in 1991, in a seemingly irrelevant mention of the TMNT Cowabunga Cooler in a case about soft drink bottlers. Sun Dun sued Coca-Cola and PepsiCo alleging violations of antitrust laws.

sun dun vending

SUN DUN, INC. OF WASHINGTON, Plaintiff, v. THE COCA-COLA COMPANY, et al., Defendants
Civil No. S 88-2540
UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MARYLAND
770 F. Supp. 285

Decided – August 15, 1991

In discussing summary judgment based on The Soft Drink Interbrand Competition Act, the Court says:

In addition to the fierce competition between the Coke and Pepsi brands, which cannot be gainsaid on this or any other terrestrial record (cf. the 1961 Billy Wilder movie “One, Two, Three”), there is overwhelming evidence that the Washington Metropolitan area is awash with hundreds of effectively competing soft drinks, fruit juices, and other liquid concoctions. Indeed, the range of brands competing for the soft drink buyer’s quarters boggles the lay mind, which seldom focuses on the array of such products; it includes (as so aptly put in PepsiCo’s supporting memorandum) everything from Pennsylvania Dutch Birch Beer to Teenage Mutant Ninja Turtle Cowabunga Cooler.

Recall this is the height of the cola wars.


There are 103 case opinions in Federal Courts with the word “ninja” according to a Lexis search. The first is actually a typo (explained below). So the true first is the 1988 decision in Hasbro Indus. v. United States, Court No. 84-1-00087, UNITED STATES COURT OF INTERNATIONAL TRADE, 12 C.I.T. 983; 703 F. Supp. 941, Decided, October 25, 1988

This case involves the import taxes (harmonized tariff) on G.I. Joe action figures and determines that they should be taxed at a higher rate because they are human dolls. This distinction between human and nonhuman figures has recently been reported in a variety of blogs because of a decision regarding X-men merchandise. (See Toy Biz v. US). For similar tax reasons as will be discussed below for Hasbro, Marvel lawyers argued in 2003 that certain X-men figures were nonhuman. This created hullabaloo amongst comic fans because a major plot line of the X-men comic is that these characters are humans who are persecuted for being mutant humans. Arguing that mutants are not human is good for taxes but goes counter to what the X-men fight for.


– Law and Multiverse – “Are the X-Men Human? A Federal Court Says No”
– RadioLab – “X-men vs Tariff Law”
– The Cardozo Jurist – “Courts Rules Marvel Action Figures Are Not Dolls”
– Escapist – “Federal Court Rules that the X-Men are Not Human”

But first the typo – In Office of Supply Govt. of the Republic of Korea v. M. V. Naftoporos, No. 81 Civ. 4507, UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF NEW YORK, 1985 U.S. Dist. LEXIS 15671, September 24, 1985, Decided – the Court cites a quotation to “M. Golodetz Export Corp. v. S/S Lake Ninja, 751 F.2d 1103, 1110 (2d Cir. 1985)” — except that is scrivener’s error – the correct party name of the defendant in that case was “S/S Lake Anja” = the name of a cargo vessel. So that is the first use of “ninja” in the Federal Court but it’s a typo. That said, even if it is complete error, it is somewhat ironic or coincidental that the first case with “ninja” has “the Republic of Korea” as the named plaintiff.

So, now back to the GI Joes case, Hasbro v US, Judge Watson for the Court writes:

This action involves the proper classification of plastic figures described as “G.I. Joe Action Figures” and imported from Hong Kong during 1982 and 1983. The merchandise was classified as “other dolls” under Item 737.24 of the Tariff Schedules of the United States (“TSUS”), at various duty rates, depending upon the date of entry. Plaintiff claims that the importations are properly classifiable as “toy figures of animate objects” under Item A737.40 of the TSUS, which, having met the requirements for duty free treatment under the Generalized System of Preferences, (“GSP”), should be free of duty pursuant to General Headnote 3(c) of the TSUS.

The Court then goes on to give thoroughly enjoyable descriptions of many action figures, particularly:

The third figure selected for description is designed “Counter Intelligence.” This is a white female with red hair, wearing what appears to be a beige, one-piece bathing suit, together with beige boots and gloves over black tights. Molded on the figure is a knife on the left thigh, what is possibly a small explosive device on the right thigh, a grenade on the left shoulder, a small pistol on the inside of the right forearm, and what appear to be two “throwing stars” (a type of weapon associated with Japanese “ninja“) on the exterior of the left glove. The figure comes with a “XK-1 Power Crossbow” accessory.

GI Joe fans will recognize this as a description of Counter Intelligence, Scarlett O’Hara.


The Court quotes the entirety of the back filecards for each character, as in the image above, quoting:

“Scarlett is confident and resilient * * * it’s remarkable that a person so deadly can still retain a sense of humor.”

The Court profiles the action figures and characters of Duke, Roadblock, Doc, Scarlett, Cobra Commander, and Baroness.

Hasbro’s arguments are GI Joe are “action figures” not “dolls” but the Court disagrees concluding:

The testimony offered at trial could not overcome the fundamental definition established by lexicographic common meaning and prior case law. Although it is clear that plaintiff does not use the word “doll” in the marketing of these figures, none of the plaintiff’s witnesses could persuade the Court that this was a matter of basic definition. On the contrary, the evidence as a whole supports the conclusion that the emphasis on the term “action figure” is a conscious avoidance of the definitionally correct term “doll” and that when these articles are described in general publications in this society such as newspapers or magazines, or in specialized publications devoted to collectors of dolls, they are frequently referred to as “dolls.”

In sum, the Court is of the opinion that these figures have been properly classified as “dolls” under Item 737.24 of the TSUS. Further, for what it is worth, the Court notes that this classification does not in any way detract from the respect which these figures deserve as representations of the human participants in the never-ending struggle between good and evil. Henceforth, each and every one of these figures must accept the fact that, for tariff purposes and by judicial decision, they must face the world as “real American dolls.” Hopefully, they will meet this decision as to their tariff classification with courage and pride.

It is my suspicion that this tariff classification for action figure toys is a major reason that Michael Bay’s TMNT will change the narrative to make the Teenage Mutant Ninja Turtle be aliens. Aliens are nonhuman and so they should be taxed at the lower rate. Bay has been quoted today by CNN saying in response to fan reaction about the alien-origin plot: “Relax .. We are just building a richer world”.

Yes, Richer because of tax savings.

Ok that’s enough for my first NinjaLaw post. There are more Teenage Mutant Ninja Turtles in other cases and we’ll get to them later – and you may also Shepardize this Hasbro case too, there is a follow-up case about other Joes in 1989 and the 1988 case is also cited in the Toy Biz opinions about X-Men in both 2001 and 2003 . This is just a first post – there will be more NinjaLaw.