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The big news here in Orange County, Calif., is that the civil justice system has filched — or reclaimed, depending on just where you stand on this particular ox-goring — the rather impressive sum of $30.2 million from one of our local corporations. Since we’re a county of three million people, the economic impact of this judgment is the same as if each of us had just been fined $10. (That’s absolute rubbish, of course. It’s not the same at all. But since no one understands economics, I figure I can just say anything and most people won’t question it.) Anyway, Taco Bell — which has its logo at the top of one of our tallest buildings, and must therefore be one of our finest corporate citizens — has been ordered to pay $30.2 million to two guys from Grand Rapids, Mich., for stealing their talking-dog idea. Apparently, the talking-animal thing isn’t yet in the public domain. The two guys from Michigan say they invented the talking Chihuahua and that Taco Bell stole it from them and used it to make people buy tacos. I’m not sure exactly how that works. I buy a lot of fast food. I like fast food. And I have never in my life decided which kind of fast food to buy based on whether I liked or disliked a company’s commercials. TO TACO OR NOT TO TACO I don’t claim to be the most sophisticated consumer on the block. Maybe the advertising thing is going over my head (a pretty frightening idea when you consider how low it’s aimed). But my thought process on fast-food choice goes something like this: I want to eat. What do I want to eat? Where can I get that? That’s it. That’s the whole three-step process. I suspect that’s pretty close to the cerebration that precedes most people’s decision to pull into a Taco Bell. And advertising has a lot less to do with it than how far we have to drive. So the idea that I would choose Taco Bell over, say, Del Taco because I liked their spokesdog is so alien to me as to make me wonder if the Svengalis who work in ad agencies employ overt hypnosis or something more subtle — probably involving drugs — to get corporate types to sign these contracts. George Orwell, who wasted fewer words in his life than I do in a single column, once described advertising as “the rattling of a stick inside a swill bucket.” This has always seemed to me a rather harsh assessment, but I must admit that talking Chihuahua dogs seem only a small step up from the Orwellian model. Frankly, I can’t help wondering if the “99-cent menu” might not be a lot more extensive — or maybe even a “69-cent menu” — if the fast-food people weren’t spending trash bags full of money on vaguely racist dogs and dancing clowns and the like. And yet a jury, made up entirely of people whom the state of Michigan trusts to drive cars and vote, decided this was worth $30.2 million. American. They may be right. Personally, I’ve continued to eat at Taco Bell despite the stupid talking Chihuahua, so I’m probably not the right guy to assess the value of that advertising campaign. I disliked it so much that if I thought the guys making the food were as stupid as the guys approving the advertising, I would have been afraid to eat at Taco Bell. But I didn’t, so I wasn’t. Ultimately, my decision was that, while I found the Chihuahua to be the animatronic equivalent of Speedy Gonzales and couldn’t begin to fathom why the Mexican-American community wasn’t more up in arms about him, if they were cool with it, then I was cool with it. Besides, I liked the burritos. (Mind you, this is not a significant endorsement. With the exception of actual small burros, I will pretty much eat any burrito.) A DOG? YES! IT TALKS? YES! But 12 federal jurors in Michigan decided the talking Chihuahua was intellectual property of considerable value. I find this remarkable for several reasons. First, it was a talking dog, for crying out loud. It’s difficult to watch television for more than two commercial breaks without being confronted with a talking animal of some kind — usually a dog or a cat. These animals have been telling me what dog food to buy or what veterinarian to see or what kitty litter to use for most of my life. I can still remember the “Doctor Ross dog food is doggone good . . . woof,” ads, and it’s been 40 years since the company went out of business. How can anybody still claim a talking-dog idea as proprietary? Second, according to the Orange County Register, “The ad campaign became a favorite of TV viewers nationwide and ran until mid-2000, though it failed to boost Taco Bell’s sales. The chain fired its president, Peter Waller, in July 2000.” So the jury awarded $30.2 million for an ad campaign that was unsuccessful and cost the company president his job. Just how do you compute damages on something like that? Third, Taco Bell’s parent, Yum! Brands, said it would take a second-quarter charge of 6 cents a share to account for the verdict. Criminy, how many shares of stock are there in this company, that 6 cents a share will make up $30.2 million? And haven’t these people already suffered enough owning stock in a company represented by Dinky the Chihuahua? (Honest, that’s his name.) DINKY COME HOME Fourth, Taco Bell executives say they “continue to strongly believe that the Taco Bell Chihuahua character formerly used in our advertising campaign was created by the Chiat/Day advertising agency, not the plaintiffs.” How can that be? Taco Bell says Chiat/Day came up with the idea in 1997. The two guys from Michigan say they pitched a talking Chihuahua to Taco Bell in 1996 and worked with them on development of the campaign for 10 months. Ten months! Surely that left a paper trail. How can you work for 10 months with a company on an ad campaign and not have dynamite documentary evidence establishing who invented the thing? How can Taco Bell not know who invented Dinky? And if there was no paper trail, what convinced the Michigan jury? Voices in their fillings? Of course, the better question is: How can it take 10 months to come up with, “The Chihuahua walks into Taco Bell and says, ‘ Yo quiero Taco Bell’ “? But these questions never get asked except in my mind. Maybe they needed a translator. Anyway, you can imagine my chagrin when I read that Taco Bell’s spokeswoman said, “We intend to appeal this decision.” Since the corporate headquarters is in Irvine, Calif., I was scared to death this case could end up on my desk. You can see how completely unsuited I am to hear it. But then I read that the feds have it in Michigan. The last time I was this glad something was in Michigan, it was Detroit. Let the feds have it. They’ve got lifetime appointments. They have time to figure this stuff out. But if this verdict is upheld . . . and Taco Bell decides that for $30.2 million, it oughta get more mileage out of Dinky . . . and he starts showing up on my TV screen again . . . then somebody in the 6th Circuit is gonna have some ‘splaining to do. William W. Bedsworth is an associate justice at the Fourth District Court of Appeal in Santa Ana, Calif. He can be reached at [email protected]. This article originally appeared in The Recorder, a sister publication of Legal Times.

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