Buc-ee’s scored a sweeping victory in Texas federal court last month when a judge found rival rest stop chain Choke Canyon guilty of 4 wrongs: trademark infringement, dilution, unfair competition, and unjust enrichment. But the battle might not be over: “Choke Canyon is expected to appeal,” reports Law360, “and Texas intellectual property experts say the store has a strong case that it was wrongly barred at trial from presenting key defense evidence.”
Among the facts unheard during the 4-day trial: findings from an expert Choke Canyon commissioned to ask 300 people what they thought of the logos’ similarity. 99 percent of them “said there was no likelihood of confusion,” between the two.
Then there are the images that went unseen during the jury’s deliberation. Within that 6-hour period, jurors’ first question to Judge Keith P. Ellison was whether they should compare the set of logos pictured above — which includes the brands’ names — or picture-only versions, like the ones shown below:
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Anatomy of the Case
BUC-EE’S VS. CHOKE CANYON: BATTLE OF THE ROADSIDE MASCOTS
The jury trial began yesterday in a federal lawsuit Buc-ee’s filed 3 years ago against Choke Canyon, a rival, San Antonio rest-stop chain with a cartoon alligator mascot Buc-ee’s claims is too similar to its own trademark grinning beaver. Buc-ee’s’s lawyer Tracy Richardson (who’s also on the legal team for the chain’s other ongoing infringement suit against Nebraska-based Bucky’s), reports the Chronicle’s Gabrielle Banks, kicked things off with a digital slideshow that chronicled the evolution of Choke Canyon’s gator species over time: “‘They put a human hat on the alligator,’ he said, ‘they opened his mouth. Then they made him stand, which — I’ve never seen an alligator stand.'” Couple that with the animals’ big eyes, red tongue, yellow background, and associated aquatic environs — said Richardson — and the likeness is confusing. (“You’re driving down the road at 80 miles per hour and you see a sign,” he said. “Did you really see what the logo was?”) Also at issue: Choke Canyon’s use of Buc-ee’s-like design elements in its stores, including a vaguely Alamo-like parapet front, stone siding, khaki-colored paint, and oversized bathrooms. (“We have large, clean bathrooms,” said Choke Canyon’s lawyer. “The last time I looked that’s not illegal.”) The jurors will be asked to decide “whether Choke Canyon set out to or actually did confuse customers with the overlap.” [Houston Chronicle; previously on Swamplot] Logos: U.S. District Court for the Southern District of Texas
A LAWSUIT OVER RIVERSTONE’S VANISHED LEVEE
More than 400 residents of Fort Bend County’s Riverstone development — between Hwy. 6 and the Brazos River — are suing the engineering firm that designed their stormwater systems, alleging that the design left one portion of the community flooded by the runoff from the other during Harvey. The roughly 3,700-acre area is divided into 2 Levee Improvement Districts — LID 19 (shaded blue on the map) and 15. “It became very clear when we passed into LID 15 that something was not right,” one LID 19 homeowner said in a press conference. “We were inundated with water in our neighborhood, and just on the other side of the street everything seemed to be perfectly fine.” Both LIDs were designed by Costello, Inc. the company founded by Houston’s flood czar Steve Costello. (He’s said he divested from it in 2015.) That firm’s failure to consider what would happen when a levee that ran between the 2 districts — along Hagerson Rd. — was removed is what downstreamers say is to blame for much of their soggy state. In total, reports the Chronicle’s Rebecca Elliott, about a third of the 1,760 homes in LID 19 flooded. [Houston Chronicle] Map of Riverstone LIDs 15 and 19: Riverstone LIDs
GARDEN OAKS MAINTENANCE ORGANIZATION LIKELY TO FILE FOR BANKRUPTCY ON ACCOUNT OF ALL THAT MONEY IT HAS IN THE BANK
The Garden Oaks Maintenance Organization has hired a law firm to handle an anticipated bankruptcy filing — which could come as soon as Monday, reports The Leader’s Jonathan McElvy. Two years ago, a lawsuit that the organization had filed to enforce its deed restrictions against a pair of homeowners backfired when the court ruled that GOMO itself had not been formed legally. (An appeals court has since ruled that it does still have power to enforce the neighborhood’s bylaws.) As a result, in the wake of the initial ruling, “every dollar GOMO spends now could be challenged in court,” writes McElvy. With close to $600,000 in its bank account, GOMO now appears to face 2 options, he notes: “Either the board disbands and lets a judge tell them how to disburse that money, or they try a legal maneuver that seeks a judge’s permission to reorganize, so they can continue operations as the gatekeeper of Garden Oaks.” If this story sounds vaguely familiar, it’s because it is. GOMO’s predecessor entity was disbanded before the current organization began in 2001 because it was, McElvy says, “formed illegally, as well.” [The Leader; previously on Swamplot] Photo: Swamplot inbox
MONTROSE DISTRICT APPEALING JUDGE’S ORDER TO RETURN $6.6 MILLION IT COLLECTED FROM LOCAL BUSINESSES The new judge now in charge of the 5-year-old lawsuit against the 6-year-old Montrose Management District earlier this week affirmed the decision announced by his predecessor late last year — that the taxes the group imposed on the West Montrose Management District were not validly assessed, and that all $6.6 million should be returned to its payers — and parceled off a dispute about attorneys’ fees into a separate case. The final judgment clears the way for the district to appeal the ruling in state court, which it did yesterday. “The district stands by its position that it is operating within its legal charter granted by the State of Texas,” a statement put out by the organization reads. “No refunds for assessments collected in the West Montrose Management District (the only portion of the district under dispute in this legal action) will be made, pending the outcome of the current appeal.” [Houston Chronicle; previously on Swamplot] Photo: Montrose Management District
2100 MEMORIAL’S EVICTION ORDER, COMPLETELY TRANSFORMED A statement from the Houston Housing Authority yesterday says it “is making every effort to comply” with a judge’s temporary restraining order issued last week ordering the public agency to fix the fire-safety systems at the 14-story 2100 Memorial senior living apartment complex, test the building’s electrical transformers, and replace them if necessary. Judge Daryl Moore also prohibited the authority from terminating the leases of any of its tenants without demonstrating better cause than it has. An estimated 80 percent of the former Holiday Inn’s residents have already moved out. [Houston Chronicle; more; previously on Swamplot] Photo: Realtor.com
2100 MEMORIAL RESIDENTS PROTEST BY PAYING THEIR RENT, STAYING HOME Singing “We shall not be moved,” a group of residents remaining at the 2100 Memorial senior-living apartments just west of Downtown marched into the 14-story building’s leasing office one by one today to deliver their rent checks, Florian Martin reports. A notice delivered 15 days ago to residents of the tax-credit facility owned by the Houston Housing Authority gave them 5 days to move out of the building, but a spokesperson later told Swamplot that the authority would not enforce that deadline. In the meantime, a lawsuit filed just before the move-out date seeking to force the authority both to make repairs to the electrical system and to allow residents to remain in their homes has been revised and expanded to 17 named resident plaintiffs. Flooding compromised the former Holiday Inn building’s fire-safety and electrical systems; the Housing Authority says it is working with residents to find them new places to live. [Houston Public Media; previously on Swamplot] Photo: 2100 Memorial
2100 MEMORIAL LAWSUIT: LET THESE PEOPLE STAY Three tenants of the Sixth Ward senior housing facility known as 2100 Memorial filed suit against the Houston Housing Authority on Friday, a day before Saturday’s unenforced deadline for all residents to leave the building. Acting for the tenants, Lone Star Legal Aid claims the agency violated the rights of the building’s residents by failing to hold a hearing in which tenants could contest the decision. The agency has not given residents “any evidence to support any of the allegations of unreasonable danger which rendered the apartments uninhabitable,” the lawsuit claims. Although the building’s first floor flooded, the tenants’ apartments suffered “little, or no, damage” from the storms, the lawsuit states. Lone Star Legal Aid claims the lawsuit means the HHA will now have to “produce the facts that support its decision.” [Lone Star Legal Aid; KHOU; previously on Swamplot] Photo: Realtor.com
WHY YOU MIGHT WANT TO FILE YOUR HARVEY INSURANCE CLAIMS BEFORE FRIDAY Suffered property damage from Hurricane Harvey and have access to a smartphone, computer, pen and paper, or your insurance agent? Forget about waiting for waters to recede before filing any insurance claim. You’ll want to do it now — or at least before Friday. What’s the rush? The new Texas law formerly known as House Bill 1774, passed by the Texas Legislature this session and signed by Governor Abbott in May, goes into effect on September 1. The “hailstorm lawsuit reform” measure reduces property owners’ leverage with insurance companies in weather-related claims — by making it more difficult for homeowners to sue agents successfully, increasing the obstacles to filing and carrying through with lawsuits over insurance coverage, and limiting the penalties insurance companies could face if they lose a lawsuit against you. To prevent your coverage from falling under these stipulations, notify your insurance provider of your claims before the law goes into effect, and document your correspondence. [Community Impact; Texas Tribune; Property Insurance Coverage Law Blog] Photo: Randy Poole
Note: Story updated below.
A couple of days after a lawyer from Zillow sent McMansion Hell author Kate Wagner a letter demanding she take down from her website all the images of homes she’d ever found on the real estate listings aggregator site and artfully marked up with satirical commentary, an attorney from the Electronic Freedom Foundation has responded with an artful letter on Wagner’s behalf and a blog post of its own. (And it’s perhaps worth noting that in creating the delightful graphic above to illustrate its no-can-do response to Zillow’s threat to sue, the foundation itself chose to work from a Creative Commons image.) Writes EFF’s Daniel Nazer: “Using humor and parody, Wagner tries to illustrate the architectural horror of modern McMansions. . . . Importantly, Zillow does not own, and cannot assert, the copyright in these photos. But even if it could, McMansion Hell’s annotation of photographs for the purpose of criticism and commentary is a classic example of fair use.”
So what’s the fallout?
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Fair McMansion Use
That’s pretty much it for the surface-dwelling sections of the Houston Chronicle‘s former bundle of headquarters structures at 801 Texas Ave. — a reader captured the minor dustup above on Friday, and activity on the site is now mostly at or below ground level. Work to shore up the section of basement the district court ordered Hines’s Block 58 to leave behind (for tunnel use by Linbeck-controlled neighbor and plaintiff Theater Square) was mostly wrapped up last fall, according to some December court filings.
Other documents filed as part of the case show that the legal compromise set up last summer (which allowed the demo of the Chronicle building to go forward after all) has hit a few bumps since then: Theater Square filed a motion to find Block 58 in contempt of court late last year, and a trial appears to be scheduled for June.
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Texas Ave. Tunnel Tussle
HARRIS COUNTY GETTING IN ON THE PASADENA REFINERY AIR POLLUTION LAWSUIT ACTION In the wake of the lawsuit the Sierra Club and Environment Texas filed last week alleging that the century-old Pasadena Refining System plant has violated the federal Clean Air Act some thousands of times, Harris County attorney Vince Ryan has filed another suit against the plant. This one’s to do with the facility allegedly breaking state level environmental laws, Diana Wray writes in this week’s Houston Press; incidents of particular note include last summer’s major sulfur dioxide leak, which briefly shut down both the nearby Washburn Tunnel and the rest of the Ship Channel (while sending Galena Park into duck-and-cover mode). Wray writes that both lawsuits seem mostly geared toward getting the plant to clean up its act; each suit also has the potential to require that some kind of compliance watchdog or overseer be assigned to plant to ensure that it’s doing so. [Houston Press; previously on Swamplot] Photo of Pasadena Refinery Systems, Inc. plant at 111 Red Bluff Rd.: Center for Land Use Interpretation (license)
HOUSTON-TO-DALLAS BULLET TRAIN PUTTING THE BRAKES ON ALL THOSE LAWSUITS The company planning to build a bullet train between Houston and Dallas appears to be altering the legal strategy it had been using to try to get landowners to allow crews on their land to survey property along the proposed 240-mile route. Texas Tribune reporter Brandon Formby says Texas Central Partners has withdrawn 17 lawsuits across the state (including one in Harris County that had a trial scheduled for July) and settled 21 others that had sought court-ordered access. Officials of the private company now say they will seek an “open dialogue” with property owners about letting crews in. The company tells Formby it has already reached land-purchase options with more than 3,000 landowners, accounting for 30 percent of the total number of parcels it needs, and 50 percent in the 2 counties along the route adjacent to Harris County: Grimes and Waller. The company announced last week that the train is now expected to begin operating in 2023. [Texas Tribune; Houston Business Journal; previously on Swamplot] Map of proposed high-speed rail routes: Texas Central Railway
In the wake of a multi-year legal tiff between TxDOT and an Austin-based real estate company over a freestanding Ron Paul 2012 sign outside of an erotica shop on Hwy. 71, a district appeals court has just struck down central parts of the Texas Highway Beautification Act, Dug Begley reports today. The ruling may have eventual implications for city makeover enthusiast Scenic Houston’s long-term de-billboarding quest, and comes right on the heels of the announcement last week that an additional 13 signs around Houston would be coming down.
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Signs of the Times
UH READY FOR LEGAL ACTION OVER SOUTH TEXAS COLLEGE OF LAW’S HOUSTON REBRANDING “It has come to the University of Houston’s attention that South Texas College of Law has announced that it is changing its name to Houston College of Law. . . . The University of Houston is concerned about the significant confusion this creates in the marketplace and will take any and all appropriate legal actions to protect the interests of our institution, our brand, and our standing in the communities we serve.” [University of Houston; previously on Swamplot] Photo of University of Houston Law Center: Douglas R.