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Kervan USA has agreed to change the packaging of its Sunkist fruit snacks and the shape of its candy following a lawsuit filed by Promotion in Motion Inc., which produces Welch's fruit snacks. Promotion in Motion Inc. v. Kervan USA LLC, No. 18-11670 (D.N.J., entered November 6, 2018). Kervan will change the background color of the packages for its fruit snacks to avoid confusion with packages of Welch's fruit snacks, and it will change the shape of its watermelon candies to avoid the use of the "distinctive three-dimensional trapezoid shape" of Promotion in Motion's Sour Jacks. Kervan will also sell off its existing supply of allegedly infringing products and destroy any remaining units after 90 days.

A federal court in Missouri has denied class certification in a slack-fill action against Just Born Inc., ruling that the plaintiff was unable to represent one proposed class and that individual issues would predominate for the other two. White v. Just Born, Inc., 14-4025 (W.D. Mo., entered August 7, 2018). Alleging that boxes of Mike and Ikes and Hot Tamales were underfilled, the plaintiff sought certification of three classes: a Missouri Merchandising Practices Act (MMPA) class, an unjust enrichment (Restatement) class and an unjust enrichment (Appreciation) class. First, the court found that the Restatement class did not include Missouri residents, so the Missouri plaintiff could not serve as a representative of the potential class members. “In an attempt to account for variations in states’ unjust enrichment laws, [the plaintiff] seeks certification of two separate unjust enrichment classes,” the court held. “In doing so, however, [the plaintiff] defined himself out of one.”…

A New York federal court has dismissed a putative slack-fill class action against Tootsie Roll Industries, finding that the packaging of Junior Mints contains sufficient information for consumers to determine its volume and that “[t]he law simply does not provide the level of coddling plaintiffs seek. ... The court declines to enshrine into the law an embarrassing level of mathematical illiteracy." Daniel v. Tootsie Roll Industries LLC, No. 17-7541 (S.D.N.Y., entered August 1, 2018). The court found that “consumers can easily calculate the number of candies contained in the Product boxes simply by multiplying the serving size by the number of servings in each box, information displayed in the nutritional facts section on the back of each box.” In addition, the court rejected arguments that consumers depend on the size of the candies as shown on the package. Moreover, the court found that the plaintiffs did not show that the…

Promotion in Motion Inc., which produces Welch’s Fruit Snacks, has filed a lawsuit alleging that Kervan USA's packaging and product design for Sunkist Fruit Gummies infringe its trademarks and trade dress. Promotion in Motion Inc., v. Kervan USA LLC, No. 18-11670 (D.N.J., filed July 16, 2018). Although Sunkist Fruit Gummies have not been released, Kervan has publicly displayed the intended packaging at trade shows and online, Promotion in Motion alleges, and it asserts that the packaging “closely copies” the Welch's packaging by using similar design elements and color as well as the identical claim “Fruit is our 1st Ingredient.” Promotion in Motion also contends that Kervan imports and distributes a wedge-shaped sour watermelon candy under various product labels that violates the trade dress of its Sour Jacks, which is advertised with the slogan “Respect the Wedge” and an emphasis on the candy’s shape. Alleging trademark infringement, trade dress infringement, false designation of…

A federal court in New York has dismissed a putative class action alleging that Storck USA L.P. packaged Werther’s Original Sugar Free Chewy Caramels with nonfunctional slack fill and misrepresented the candy's effect on blood glucose levels. Kpakpoe-Awel v. Storck USA L.P., No. 18-1086 (S.D.N.Y., entered June 8, 2018). According to court filings, the parties have entered into a confidential settlement agreement.

Spangler Candy Co. has filed a lawsuit alleging that the packaging for Tootsie Roll Industries LLC's Charms Mini Pops infringes its Dum Dums trade dress. Spangler Candy Co. v. Tootsie Roll Indus., LLC, No. 18-1146 (N.D. Ohio, filed May 18, 2018). Spangler asserts that for decades it has sold its lollipops in red bags with the brand name in white letters above a display window, a red border at the bottom and a yellow circle or oval with blue numerals in the center. The complaint alleges that Tootsie Roll has changed its Charms Mini Pops packaging from a yellow bag to a bag that resembles the Dum Dums bag. Further, pallet displays of the products at some retailers show bags inside similar yellow boxes, the complaint asserts, making the “overall visual impression” of the two products “deceptively and confusingly similar.” Claiming trade dress infringement and unfair competition, Spangler seeks damages, injunctive relief,…

Ferrara Candy Co. has agreed to pay $2.5 million to settle a putative class action alleging its candy boxes contained an unnecessary amount of slack fill. Iglesias v. Ferrara Candy Co., No. 17-849 (N.D. Cal., motion filed May 10, 2018). Under the agreement, Ferrara will "modify its fill level quality control procedures and target fill levels to at least 75% for theater box Products, and at least 50% for bag-in-a-box Products." In addition, the company will pay $2.5 million into a common fund; class members may submit claims for an unlimited number of purchases, but recovery for claims without proof of purchase will be capped at $7.50 per member. The named plaintiff will receive an incentive award of $5,000, and attorney's fees will be capped at 30 percent of the common fund, or about $522,000.

A consumer has filed a putative class action alleging Trader Joe's Co. falsely advertises its Sour Gummies by failing to disclose that the product contains d-l-malic acid. Wong v. Trader Joe's Co., No. 18-0869 (S.D. Cal., removed to federal court May 4, 2018). The plaintiff asserts that under California law, "any artificial flavor must be identified on both the front-of-package label and the product ingredient list. Defendants fail to do either." According to the complaint, "Trader Joe's maintains a pervasive national marketing campaign guaranteeing that all its house-brand products are only naturally flavored," including the statement "when you see our name on a label, you can be assured that the product contains: YES quality ingredients NO artificial flavors." Alleging unfair competition, false advertising and negligent misrepresentation, the plaintiff seeks class certification, damages, corrective advertising and attorney's fees. In addition, Trader Joe's has filed a notice of opposition to an application for the…

A consumer has filed a putative class action alleging boxes of Cookie Dough Bites, made by Taste of Nature Inc., contain up to 58 percent slack fill. Gillespie v. Taste of Nature, Inc., No. 18-2105 (C.D. Cal., filed March 13, 2018). The complaint alleges that the candies are packed in a plastic pouch inside the box that makes the box appear to be more than half full, but if the candy is removed from the pouch and poured back into the box, the box appears to be about one-third full. Claiming violations of California’s consumer-protection laws, the plaintiff seeks class certification, injunctive relief, damages, restitution and attorney’s fees.

An Illinois federal court has dismissed without prejudice a putative slack-fill class action against chocolatier Fannie May Confections Brands, Inc., ruling the plaintiffs provided only “bare-bones” factual allegations and failed to allege a violation of the Federal Food, Drug and Cosmetic Act that would allow their state law claims to avoid preemption. Benson v. Fannie May Confections Brands, Inc., No. 17-3519 (N.D. Ill., entered February 28, 2018). The court also dismissed the plaintiffs’ claim for injunctive relief, finding they lacked standing because they failed to adequately allege a risk of future harm. “[A]lready aware of Fannie May’s alleged deceptive practices, Plaintiffs cannot claim they will be deceived again in the future," the court held. In addition to the products they did purchase—Fannie May’s Pixies and Mint Meltaways—the plaintiffs also alleged that packages of eight other chocolate candies contained slack fill and brought the action on behalf of consumers who purchased…

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