Greek Yogurt Company Challenges Denial of Trademark Registration

Fage Dairy Processing Industry, S.A. has filed a lawsuit seeking to overturn the Trademark Trial and Appeal Board’s refusal to register the yogurt maker’s “Fage Total” trademark and a declaration that its use of the mark does not infringe any claimed right of General Mills, which makes Total® breakfast cereals. Fage Dairy Processing Indus., S.A. v. General Mills, Inc., No. 11-1174 (N.D.N.Y., filed September 30, 2011). According to the complaint, the board’s ruling is replete with factual errors. The complaint also asserts that Total® cereal and Fage Total yogurt co-existed in U.S. markets for 13 years “without a single instance of actual confusion arising from the parties’ use of their respective marks.” Fage alleges that the defendants, “suddenly and without warning” brought a federal trademark infringement lawsuit against it in mid-September, “seeking draconian damages.” That suit was apparently filed two days after the board refused to register Fage’s marks.