Great Harvest Franchising, Inc. and two franchisees of Great Harvest Bread Co. have filed a lawsuit against Panera Bread Co., alleging the company has been using a tagline—“Food as it should be”—that infringes on Great Harvest’s trademarked slogan, “Bread. The way it ought to be.” Great Harvest Franchising, Inc. v. Panera Bread Co., No. 16-0121 (W.D.N.C., Charlotte Div., filed March 10, 2016). Great Harvest established its tagline in October 2014 and registered the mark in December 2015, and it alleges that Panera began using its similar slogan in July 2015. The plaintiffs seek an injunction, destruction of infringing materials and damages for allegations of unfair competition, trademark infringement and false designation of origin. Issue 597
Posts By Shook, Hardy & Bacon L.L.P.
A California federal court has dismissed a proposed class action against Nestlé USA, Inc. alleging that its Coffee-Mate creamer products are mislabeled because they include partially hydrogenated oil (PHO), which contains trans fat, despite listing “0g Trans Fat” on its labels. Backus v. Nestlé USA, Inc., No. 15-1963 (N.D. Cal., order entered March 8, 2016). The court first agreed with Nestlé’s argument that the plaintiff’s three use claims—those arguing that the company’s use of PHO makes it liable for damages to consumers—were preempted by the federal Food, Drug, and Cosmetic Act (FDCA) and the U.S. Food and Drug Administration’s (FDA’s) compliance schedule for removing trans fat from food by June 18, 2018. The court then turned to the labeling claims, which Nestlé also argued were preempted by the FDCA, as amended by the Nutrition Labeling and Education Act, which established that a company must list the trans fat content of…
A California federal court has again denied certification in a putative consumer class action challenging Yakult USA’s probiotic yogurt product for allegedly false digestive-health claims. Torrent v. Yakult USA, Inc., No. 15-0124 (C.D. Cal., S. Div., order entered March 7, 2016). Additional information about the previous denial of certification appears in Issue 589 of this Update. In its prior denial, the court found the plaintiff was unlikely to purchase the product again, thus he lacked standing to pursue an injunction. Following this ruling, the plaintiff purchased Yakult at a store, then refiled his motion for class certification along with a sworn declaration that “I intend to buy Yakult in California in the future.” The court found the refiled motion to be “an effort to manufacture standing in direct response to this Court’s prior ruling.” Allowing the plaintiff “to seek injunctive relief based on his recently-expressed intention to purchase Yakult in the…
The Supreme Court of Spain has reportedly dismissed a challenge brought by the Comité Interprofessionel Du Vin de Champagne alleging that Champín, a Spanish fruit-flavored soft drink, infringes the organization’s protected-designation-of-origin rights. The organization asserted that Champín could be confused with Champagne, which may only describe sparkling wines made in that region. The court disagreed, finding that “Champín differs enough with respect to those products protected by the Champagne appellation that the phonetic similarity does not evoke the product.” See The Local, March 10, 2016. Issue 597
The U.S. Food and Drug Administration (FDA) has announced that two rules requiring calorie information to be listed on menus and menu boards in chain restaurants will not be enforced December 1, 2016, as initially planned, but will instead be delayed until one year after final guidance is issued. The announcement credits the omnibus appropriations bill enacted December 18, 2015, as cause for the delay. The agency is currently reviewing comments about related draft guidance issued in September 2015. See FDA Statement, March 9, 2016. Issue 597
The U.S. Food and Drug Administration has issued guidance titled “Acrylamide in Foods” that finalizes a November 2013 draft on the topic. The document provides information about reducing acrylamide in potato-based, cereal-based and other foods as well as information to provide consumers on cooking packaged frozen french fries. See Federal Register, March 11, 2016. Issue 597
In an article for the Washington Legal Foundation’s Legal Pulse, Shook Partner Frank Cruz-Alvarez and Associate Rachel Canfield discuss the future of class actions in light of the passing of U.S. Supreme Court Justice Antonin Scalia. “In the specific area of class-action litigation, Justice Scalia repeatedly thwarted the plaintiffs’ bar’s efforts to encourage liberal interpretation of Rule of Civil Procedure 23 and broadly applied the preemptive effect of the Federal Arbitration Act (FAA),” they write. “His death and vacancy have generated much speculation about how the post-Scalia high court will address class actions and other related cases in the terms ahead. Cruz-Alvarez and Canfield provide an overview of Scalia-authored opinions in class action appeals and discuss immediate effects of his death on the litigation environment, noting that one company candidly announced it would not seek certiorari in an antitrust class action because of Scalia’s absence from the bench. Further, they…
“Conflicts between individual choice and collective action underlie many of the most contested and challenging debates relating to health and health care, from the very existence of Obamacare to government responses to the obesity and tobacco epidemics,” according to promotional materials for an April 15, 2016, conference on the campus of Northeastern University in Boston. The event will include sessions titled “The Politics of Public Health”; “Commercial Speech, Individual Responsibility & Health”; and “Addiction.” The “Obesity and Chronic Diseases” roundtable will be moderated by Northeastern Law Professor Richard Daynard, founder of the Public Health Advocacy Institute’s Center for Public Health Litigation, which “uses the civil justice system to improve public health by focusing on litigation targeting tobacco industry products, unhealthy foods, deceptive health marketing, and deceptive gambling practices.” Issue 596
A California resident has filed a putative class action alleging Quaker Oats Co. mislabels its instant oatmeal as containing maple syrup despite containing no syrup or maple sugar. Eisenlord v. Quaker Oats Co., No. 16-1442 (C.D. Cal., filed March 1, 2016). Citing a letter from the Vermont Maple Sugar Makers’ Association to the U.S. Food and Drug Administration, the complaint asserts that adding maple sugar to a product can allow a company to charge a premium price. The plaintiff argues that he relied on the name of the product and a prominent image of maple syrup on the packaging to believe that the oatmeal contained maple syrup, and had he known “that the product did not contain maple syrup or maple sugar as an ingredient, he would not have purchased it.” For allegations of fraudulent inducement and violations of California’s consumer-protection statute, the plaintiff seeks class certification, damages, an injunction…
Experience Hendrix has filed a trademark infringement lawsuit against Tiger Paw Distributors, Private Label Distillery and Leon Hendrix, Jimi’s brother, for selling an alcohol product called “Purple Haze Liqueur.” Experience Hendrix v. Tiger Paw Distrib., No. 16-0642 (N.D. Ga., filed February 29, 2016). Experience Hendrix, established by Jimi’s father and now owned by Jimi’s sister and cousin, alleges that Leon and his company are selling Purple Haze Liqueur and promoting it with Jimi’s image, which Experience Hendrix owns. According to the complaint, Leon was previously enjoined from selling Jimi Hendrix Electric Vodka, sold in a purple bottle, after 2007 trademark litigation. The company argues that it hold copyright protection for several of Jimi’s songs, including “Purple Haze” and “Voodoo Child (Slight Return).” In addition, the U.S. Patent and Trademark Office previously refused to grant trademark rights to Tiger Paw for marks related to Jimi Hendrix because they suggested a false connection to…
