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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…

Barcel USA, maker of Takis chips, faces a putative class action filed by a plaintiff alleging that four-ounce bags of Zombie and Guacamole tortilla chips contain as much as 64 percent nonfunctional slack-fill. Morrison v. Barcel USA, LLC, No. 18-531 (S.D.N.Y., filed January 22, 2018). The plaintiff compared the Takis bags to similarly sized bags of Doritos chips, which allegedly contain 33 percent slack fill. She alleges that her economic injury was equivalent to the proportion of the purchase price she paid for the slack-fill. Claiming deceptive and unfair trade practices, false advertising and common-law fraud, the plaintiff seeks class certification, injunctive relief, restitution, disgorgement, damages, corrective advertising and attorney’s fees.

The maker of Luigi’s Real Italian Ice is facing a proposed class action alleging that each Luigi's cup contains 5.5 ounces of the product despite packaging listing the contents as six ounces. Orbach v. J&J Snack Foods Corp., No. 18-0321 (S.D.N.Y., filed January 12, 2018). The plaintiffs allege that both the outer packaging and the cup lids indicate that each cup contains six fluid ounces. Claiming breach of warranties, unjust enrichment, violations of New York and Massachusetts laws governing deceptive acts and practices, false advertising and fraud, the plaintiffs seek class certification, damages, restitution, injunctive relief and attorney’s fees.

Utz Quality Foods Inc. has agreed to pay $1.25 million to settle a putative class action alleging that some products were labeled “natural” despite containing genetically modified organisms (GMOs) and synthetic ingredients. DiFrancesco v. Utz Quality Foods, Inc., 14-14744 (D. Mass., settlement agreement filed December 6, 2017). The complaint alleged the snacks contained GMO grains and synthetic ingredients such as caramel color, malic acid and citric acid. Class members will receive $2 for each qualifying purchase up to a total of $20 and residual funds will be paid to nonprofit group Consumers Union. Utz has also agreed to stop using the terms “natural” and “all natural” on labeling and advertising of the products.

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.

A federal court in New York has given final approval to the settlement of multidistrict litigation that alleged Frito-Lay North America, Inc. deceptively labeled and marketed its chip and dip products as “Made with All Natural Ingredients” when the products contained genetically modified ingredients. Frito-Lay N. Am., Inc., “All Natural” Litig., No. 12-MD-2413 (E.D.N.Y., entered November 14, 2017). Frito-Lay has agreed to modify its product labeling. While the class will not receive damages apart from $17,500 to class representatives, plaintiff's counsel will receive $1.9 million plus reimbursement of expenses up to $200,000.

Snyder’s-Lance, Inc. has filed a lawsuit in North Carolina federal court appealing a Trademark Trial and Appeal Board (TTAB) ruling that found the term “Pretzel Crisps” to be generic, arguing that TTAB “failed to consider all the evidence of the public’s perception of the Pretzel Crisps brand, despite clear direction from the Federal Circuit to do so.” Snyder’s-Lance, Inc. v. Frito-Lay N. Am., Inc., No. 17-0652 (W.D.N.C., filed November 6, 2017). TTAB initially deemed “pretzel crisps” generic after Frito-Lay opposed Snyder's-Lance’s application for a trademark; that decision was vacated by the Federal Circuit and remanded for reconsideration. Snyder's-Lance argues that during seven years of litigation, its Pretzel Crisps brand has become a market leader and is now the “number one product in the entire ‘deli cracker’ section in which it principally competes." The complaint also asserts that “both Frito-Lay and the TTAB panel agreed that ‘pretzel crackers’ generically and appropriately…

Researchers at the University of Surrey have evaluated the impact of "snack" labeling compared to "meal" labeling, reportedly finding that those who ate products labeled as snacks consumed “significantly more in terms of nearly all measures of food intake than those in the other conditions.” J. Ogden et al., “'Snack' versus ‘meal’: The impact of label and place on food intake,” Appetite, October 23, 2017. Eighty female subjects ate food labeled or presented as either (i) a snack to be consumed standing or eaten from a container or (ii) a meal to be eaten from a plate at a table. The research reportedly showed that subjects consumed “significantly more” chocolate and more total mass and calories when the food was labeled as a snack. The authors concluded that “label and presentation influence subsequent food intake both independently and combined which is pertinent given the increase in ‘snacking’ in contemporary culture.”

A Bengali potato-chip maker’s application to register a design mark has drawn opposition from Frito-Lay, which argues the mark is too similar to the one it has used since 1995. Frito-Lay N. Am. v. Putul Distribs., No. 91235606 (T.T.A.B., notice of opposition filed July 17, 2017). The notice asserts that Putul’s proposed design mark for its fish, pickles and potato chips—a green and red circle bisected by a wide red and black ribbon—is likely to be confused with Frito-Lay’s, which is a “round sun or globe bisected by a banner or ribbon.” In addition to the alleged potential confusion between the marks on potato-chip products, Frito-Lay also asserts that fish and pickles are “food products that may be complementary or consumed with Frito-Lay’s goods.” Claiming priority, likelihood of confusion and dilution by blurring, Frito-Lay seeks a denial of Putul's registration application.   Issue 643

A Texas man alleges the tortilla chips provided for his food demonstrations were rancid and adulterated with a salt shaker and a dirty napkin, threatening his business relationships and causing him emotional distress. Henry’s Dream Distrib. v. El Matador Foods, No. 2017-46884 (Tex. Dist. Ct., Harris Cty., filed July 14, 2017). The plaintiff asserts that in two separate incidents related to tortilla chips he purchased from El Matador Foods, a salt shaker rolled out of a bag at a sales demonstration and a dirty napkin was found in a bag that held rancid chips. According to the complaint, the plaintiff suffered a stroke after the second event. Claiming breach of contract, negligence, breach of warranty, negligent misrepresentation and violations of Texas consumer protection law, the plaintiff seeks damages and attorney’s fees.   Issue 641

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