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Halloween Creates More Tricks than Treats in the Courts

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October 2020

Although Halloween is meant to be a fun festive event, it is wrought with opportunities for things to go frightfully wrong.  There are many instances when surrounding events have led to injury or economic damages, often with satisfaction pursued through the courts.  Below are some notable cases and cautions for the holiday season.

Personal Injury Claims

Haunted houses have been a source of numerous personal injury claims.  While (i) the nature of a haunted house suggests one should reasonably expect to be frightened and (ii) liability waivers often require an acknowledgement and waiver of the inherent risks, there are times when people assert the scare factor was too extreme or the situation was unsafe.  For instance, one participant claimed that a man with a chainsaw at the conclusion of the Haunted Hotel in San Diego was so frightening that he ran away, falling and severely injuring his wrists.  The court concluded that the fright was delivered as promised and dismissed the matter.  However, a different result can arise when the conditions themselves are unexpectedly dangerous.  A woman at the House of Shock in Louisiana claimed to have suffered an eye fracture and torn cornea after being shot with an air rifle by a costumed employee and asserted claims for medical expenses, lost wages and loss of earning capacity, among other damages.

Intellectual Property Infringement

The proliferation of costumes can include knock-offs of familiar characters, presumably to avoid paying proper licensing fees.  Some manufacturers will try to use descriptive sounding titles that attempt to suggest the character rather than name it outright in order to avoid claims for infringement.  Entertainment reporters at Entertainment Weekly and Buzzfeed have published lists mocking this practice and pocking fun at the resulting awkward costumes names, including:

  • A Matrix style costume called “Cyber Man”
  • A Mario Brothers style costume called “Video Game Guy”
  • A Hunger Games style costume called “Hungry Rebel Girl”
  • A Dorothy style costume called “Kansas Beauty”
  • A Prince style costume called “80’s Purple Musician”
  • A Minecraft style costume called “Minegame”
  • A Stranger Things style wig called “Unusual Events” wig

Such activity has not gone unnoticed.  For example, the owners of the rights to the Power Rangers successfully sued the costume website MyPartyShirt.com for selling knock-off Power Rangers costumes. The parties eventually settled, reportedly with MyPartyShirt.com agreeing to a disgorgement of all profits on infringing products.

Another successful intellectual property case involved a claim for copyright infringement by costume manufacturer Rasta Imposta, who sued various companies for selling a banana costume whose artistic features (e.g. colors, lines, shape and length) were claimed to be infringing.  The case made it through the US Circuit Court of Appeals in Philadelphia, which agreed that the costume had distinctive artistic features and affirmed the district court’s preliminary injunction.

Common Halloween Consumer Frauds 

Halloween is the second most consumer-driven holiday, which unfortunately means consumer fraud also lurks in its shadows.  Online consumers should shop only from trusted sources and avoid online pop up shops without a physical address or risk payment for goods never received and/our identity theft.  Fake ticket sales to popular sold out events or at discounted prices is another common way fraudsters attempt to capitalize on the seasonal revelry.

Fulcrum Inquiry regularly

The post Halloween Creates More Tricks than Treats in the Courts first appeared on .

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