The Sixth Circuit Court of Appeals has determined that the Roskam Baking Co. did not infringe a trademark by using the term “Texas Toast” in selling its packaged croutons. T. Marzetti Co. v. Roskam Baking Co., No. 10-3784 (6th Cir., decided May 25, 2012). Marzetti apparently began using the Texas Toast mark for its frozen garlic bread in 1995 and then adopted the term for use with a crouton product sold in 2007. The company attempted to register the mark in 2009, but the applications were initially denied “because of the potential likelihood of confusion with the mark Texas toast for bakery goods.” Thereafter, they were approved for publication as, “at a minimum, suggestive.” The defendant filed an opposition to the trademarks in 2010, and Marzetti, learning about the company’s Texas Toast croutons, filed this trademark infringement action. The Sixth Circuit agreed with the district court that the mark is not protectable on the basis of findings that “Texas Toast” is a “generic designation when applied to croutons.”

A California court has determined that an overtime and meal-break case brought as a putative class action on behalf of Joe’s Crab Shack managers cannot be certified because (i) individual issues predominate over common issues, (ii) the named plaintiffs were not typical class members or adequate class representatives, and (iii) class treatment was not a superior means of resolving the litigation. Martinez v. Joe’s Crab Shack, Inc., No. BC377269 (Cal. Super. Ct., Los Angeles Cty., decided May 25, 2012). Accordingly, the court denied the plaintiffs’ motion for preliminary class certification. Among other matters, the court noted that the plaintiffs were unable to estimate the number of hours spent on individual exempt or non-exempt work tasks and that each testified to varying amounts of time spent on such tasks from day to day and week to week. “Thus, the evidence indicates plaintiffs will be vulnerable to the defense that each of them performed exempt tasks more than 50% of their work time. This contrasts with the putative class members who the [third amended complaint] alleges spent more than 50% of their work time performing non-exempt tasks.”

A federal court in Illinois has dismissed class action allegations of racial discrimination filed by former employees against McDonald’s Corp., agreeing with the company that the plaintiffs failed to exhaust their administrative remedies by first presenting the class claims in an underlying Equal Employment Opportunity Commission (EEOC) charge. Dovgin v. McDonald’s Corp., No. 11-7883 (N.D. Ill., decided May 25, 2012). Each of the named plaintiffs had apparently focused on “discrete, personal allegations” of racial discrimination when filing their EEOC charges and did not “allege widespread discrimination against any particular class.”

According to a news source, a California court has tentatively declined to set aside its dismissal of a wrongful death lawsuit filed by 180 survivors of Colombians allegedly killed near South American banana plantations by paramilitaries purportedly paid by Dole Food. Perez v. Dole Food Co., Inc., No. BC412620 (Cal. Super. Ct., Los Angeles Cty., decided May 30, 2012). The court dismissed the case in April 2012 after the plaintiffs failed to timely amend their complaint under an appellate ruling that became final in January. The plaintiffs sought to set aside the dismissal, claiming their attorneys were unaware of the time limit. While the court indicated that it would review some cases before finalizing the adverse decision, it also issued a tentative ruling denying the plaintiffs’ request to set aside an order that each of them pay a $16,900 cost bond to guarantee the payment of any costs that may be awarded to Dole. See Law360, May 31, 2012.

A California woman who lost her motion to certify a class in an antitrust lawsuit challenging the merger of Whole Foods Market, Inc. and Wild Oats has reportedly agreed to judgment in favor of Whole Foods. Kottaras v. Whole Foods Mkt., Inc., No. 08-1832 (U.S. Dist. Ct., D.D.C.). Additional information about the court’s January 2012 ruling denying class certification appears in Issue 425 of this Update. See The BLT: The Blog of LegalTimes, May 30, 2012.

About The Author

For decades, manufacturers, distributors and retailers at every link in the food chain have come to Shook, Hardy & Bacon to partner with a legal team that understands the issues they face in today's evolving food production industry. Shook attorneys work with some of the world's largest food, beverage and agribusiness companies to establish preventative measures, conduct internal audits, develop public relations strategies, and advance tort reform initiatives.

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