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The Trademark Trial and Appeal Board has denied Hy-Vee Inc.'s application to register the “Peaceful Piranha” mark for a line of snack foods, deeming the mark to be too similar to the mark for an existing line of “Piraña” snack foods. In re Hy-Vee, Inc., No., 87120774 (T.T.A.B., entered February 6, 2018). Finding “piranha” to be the dominant portion of the mark, the board found the term likely to confuse consumers unfamiliar with Spanish because they may read the pronunciation of the terms as identical. Further, consumers who understand Spanish may be confused because they would understand the cognate terms as a reference to the fish. Although Hy-Vee argued that “peaceful” and “piranha” are counterintuitive, creating an entirely different connotation with no association to “vicious” piranha fish, the board found the term “peaceful” was not likely to distinguish the marks because “it would merely indicate an atypical piranha, possibly for use…

The U.S. Court of Appeals for the Ninth Circuit has vacated and remanded a lower court’s grant of summary judgment in favor of Whole Foods Market Inc. in a trademark infringement case related to the company’s “Eat Right America” promotion. Eat Right Foods Ltd. v. Whole Foods Mkt., Inc., No. 15-35524 (9th Cir., entered January 29, 2018). Plaintiff Eat Right Foods (ERF), a New Zealand-based maker of organic foods, registered U.S. marks for “EatRight” and “Eat Right” in 2001 and 2003; ERF has also sold a line of gluten-free cookies to Whole Foods. In 2009, Whole Foods contracted with Nutritional Excellence, LLC, which previously did business as “Eat Right America,” to use a food-scoring system to advertise the nutritional value of products to shoppers. In early 2010, an ERF executive discovered Whole Foods using an “Eat Right America” promotion and contacted Whole Foods to suggest the grocery buy its brand…

Amazon has opened Amazon Go, a grocery store using artificial intelligence (AI), prompting speculation about its potential effects on the labor market, worries about consumer privacy and skepticism about how well it will work. Shoppers scan a smartphone app at a turnstile as they enter, then items are added to a virtual shopping cart as shoppers pull them off the shelf. If the shopper puts the item back on a shelf, the item is deleted from the cart. When shoppers leave the store, their credit cards are charged for the total. The store reportedly uses machine learning algorithms and computer-vision image processing along with weight sensors, camera-friendly bar codes and infrared sensors to track products as they leave shelves and the store. The store's technology hit speed bumps before its unveiling. Amazon Go’s opening was delayed by a year as the company fine-tuned and tested the technology; among early bugs was…

A consumer has filed a putative class action alleging Whole Foods Market Group Inc. charged him $1.29 for snack bars despite advertising them as $1.00 each. Alston v. Whole Foods Mkt. Grp. Inc., No. 17-2580 (D.D.C., removed to federal court December 4, 2017). The plaintiff alleges that he purchased snack bars over several visits to a Whole Foods store in Washington, D.C., but did not notice until later that he had been overcharged. The complaint asserts that Whole Foods “calculated that most consumers would not notice the 29 cents overcharge, would not bother to say anything after they noticed the overcharge or that they would simply refund the overcharge if a customer requested a refund.” Claiming violations of the District of Columbia Consumer Protection Procedures Act and fraud, the plaintiff seeks class certification, damages, a $25,000 incentive award and attorney’s fees.

Two grocery chains face similar lawsuits filed by a New York plaintiff who argues the stores’ websites are inaccessible to the blind or visually impaired, allegedly violating the Americans with Disabilities Act (ADA). Jorge v. Key Food Mkt., Inc., No. 17-9306 (S.D.N.Y., filed November 28, 2017); Jorge v. Fairway Grp. Holdings Corp., No. 17-9309 (S.D.N.Y., filed November 28, 2017). The complaints assert that Key Food and Fairway Market stores have failed to make their websites accessible to screen-reading software, denying the plaintiff equal access to their facilities, goods and services. Alleging violations of the ADA as well as New York state and municipal human rights laws, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.

The San Francisco Board of Supervisors has unanimously approved an ordinance that will require certain grocery stores to report the use of antibiotics in raw meat and poultry. Scheduled to take effect in April 2018, the ordinance requires grocers that own or operate 25 or more stores to submit annual reports that include the purposes for which the antibiotics were used, the number of animals raised, the total volume of antibiotics administered and whether the use was “medically important.” Grocers who violate the ordinance may be subject to fines or imprisonment.

Dollar General Corp, Moran Foods LLC and Krasdale Foods, Inc. have filed lawsuits alleging that the makers of Bumble Bee, StarKist and Chicken of the Sea illegally conspired to fix prices for their products, echoing ongoing litigation alleging similar facts. Dollar General Corp. v. Bumble Bee Foods LLC, No. 17-1744 (S.D. Cal., filed Aug. 29, 2017); Moran Foods LLC v. Bumble Bee Foods LLC, No. 17-1745 (S.D. Cal., filed Aug. 29, 2017); Krasdale Foods, Inc. v. Bumble Bee Foods LLC, No. 17-1748 (S.D. Cal., filed Aug. 30, 2017). The plaintiffs seek compensatory damages and attorneys’ fees. Nine putative class actions and related individual cases alleging price-fixing by the tuna companies were consolidated in multidistrict litigation in December 2015.

A Tennessee federal court has ruled that a personal-injury lawsuit against Whole Foods Market can proceed because the plaintiffs did not plead that they were “practicing vegans” and therefore could not be expected to know that a vegan pizza product might contain nuts. Jones v. WFM-WO, No. 17-0749 (M.D. Tenn., order entered July 17, 2017). The plaintiff alleged that she bought two slices of “Vegan Garden Pizza” from a Whole Foods bakery, relying on the label indicating that the pizza “did not contain certain nuts and/or ingredients derived from nut products.” After her daughter ate the pizza and suffered an allergic reaction requiring hospitalization, the plaintiff called the store and talked to the department manager, who reportedly told her the pizza was “mislabeled” and that an employee had prepared it using a taco sauce containing crushed pecans. Whole Foods argued that the pizza was exempt from the warning-label requirements of…

The National Advertising Division (NAD) has recommended that Aldi, Inc. discontinue advertising based on a “market basket” comparison that claims consumers could save more than 50 percent by buying Aldi brands instead of name­-brand products at other grocery chains. Texas-­based HEB Grocery Co. first challenged print ads published in Houston then later added a challenge to print advertising outside Texas as well as in Facebook and YouTube ads. HEB challenged whether the ads “adequately informed the consumer of the basis of comparison and whether the advertiser’s broad savings claims were supported.” NAD found that where percentage savings claims did disclose the basis of comparison, the “disclosures were vague and non­specific” and did not clarify that the achieving the advertised savings would require switching from name brands to Aldi’s house brands. Further, NAD found insufficient evidence to support Aldi’s claims that consumers would “always” save up to 50 percent. Aldi will…

The U.S. Court of Appeals for the Second Circuit has reversed a lower court’s dismissal of a proposed class action alleging Whole Foods Market Group, Inc. overcharges for prepackaged foods. John v. Whole Foods Mkt. Grp., Inc., No. 16-­0986 (2nd Cir., order entered June 2, 2017). The plaintiff alleged that he routinely purchased prepackaged foods at two Whole Foods stores in Manhattan but learned that a New York City Department of Consumer Affairs (DCA) investigation had found systematic overcharging for some foods. Details on the lower court’s dismissal appear in Issue 596 of this Update. The Second Circuit held that the lower court dismissed the case prematurely because the plaintiff did not need to prove the accuracy of the DCA report or defend its methodology at the pleading stage; he was required only to plausibly allege that he overpaid for at least one product, which satisfies the “low threshold” required…

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