The Mexican owner of U.S. and Mexican trademarks for an “automatic pistol-shaped bottle design . . . used in connection with alcoholic beverages, with the exception of beers” and its exclusive U.S. distributor have filed trademark infringement claims against the company that sells, markets and imports into the United States Eagle Shot Tequila® in a pistol-shaped bottle. Mexcor Distribs. Inc., v. Purveyors LLC, No. 12-1240 (S.D. Tex., filed April 19, 2012). The plaintiffs allegedly demanded that the defendant cease and desist from doing so, and the defendant failed to respond. Seeking preliminary and permanent injunctive relief, the plaintiffs also seek an accounting and payment of profits earned from the date of first use of the mark, treble damages, attorney’s fees, and costs. They allege trademark infringement and unfair competition under the federal Lanham Act, as well as Texas common law on trademarks and unfair competition. According to the complaint, the defendant’s…
Posts By Shook, Hardy & Bacon L.L.P.
A Venice, Italy-based wine producer has sued a German wine distributor for unfair competition and trademark and copyright infringement in a federal court in California, alleging that the defendant ships to the United States for sale by a U.S. distributor a “gray market” product purporting to be the plaintiff’s pinot grigio wine. Santa Margherita, S.p.A v. Unger Weine KG, 12-3499 (C.D. Cal., filed April 23, 2012). According to the complaint, the U.S. distributor entered a consent order with the plaintiff in 2011 prohibiting it from importing, selling, marketing, and distributing Santa Margherita Pinot Grigio in the United States. The plaintiff contends that it sells its wine in the United States exclusively through an Illinois distributor and closely monitors the distribution network to ensure product quality. The complaint alleges, “Gray Market Santa Margherita Wine is sold and distributed outside this authorized distribution channel and is not subject to the same quality…
The claims process under two settlements reached with the company that makes the hazelnut spread Nutella® is underway, and consumers can recover up to $20, or $4 each for up to five jars purchased during the relevant periods. In re: Ferrero Litig., No. 11-205 (S.D. Cal.) (California class, Aug. 1, 2009 – Jan. 23, 2012); In re: Nutella Mktg. & Sales Practices Litig., No. 11-1086 (D.N.J.) (Nationwide class, except California, Jan. 1, 2008 – Feb. 3, 2012). The settlement funds available to both classes total $3.05 million, but if the claims exceed this amount, individual payments “will be reduced proportionately.” Under the settlement agreement, the company, which continues to deny any wrongdoing, will modify its product label and certain marketing statements, create new TV ads, and change the Nutella® website. The company also agreed not to object to a California fee award of $900,000 and New Jersey fee award of $3…
A federal grand jury in Illinois has brought criminal indictments against four individuals who allegedly distributed more than 110,000 pounds of Mexican cheese in the United States in 2007 despite Food and Drug Administration (FDA) “hold” orders and also allegedly “washed” cheese returned by dissatisfied customers by scraping off mold and fungus so it could be resold. United States v. Zurita, No. __ (N.D. Ill., indictment returned April 18, 2012). No illnesses or other public health issues were attributed to the adulterated cheese distribution in the six-count indictment. The charges involve three separate shipments of cheese from Mexico that FDA ordered to be held and then later ordered either “detained” or “refused” after testing revealed the presence of Salmonella, E. coli, alkaline phosphate (found in unpasteurized products), and Staphylococcus. The defendants allegedly conspired to distribute the shipments despite FDA orders not to do so. They also allegedly distributed cheese before inspection, failed…
A National Labor Relations Board (NLRB) administrative law judge has determined that the owner of 10 Jimmy John’s fast-food restaurants in the Minneapolis-St. Paul area violated federal law during a labor dispute by, among other matters, posting a pro-union employee’s phone number on its Facebook® page and suggesting that members text the employee to “let him know how they feel.” Miklin Enters., Inc. d/b/a Jimmy John’s and IWW, Nos. 18-CA-19707, -19727, -19760 (N.L.R.B., Div. of Judges, decided April 20, 2012). According to the judge, the assistant manager’s posts encouraged other employees and managers to “harass” the employee “for activities that were protected, as well as some that were arguably unprotected.” A co-owner’s subsequent Facebook® posts disparaging the employee further “condoned such harassment.” The employer terminated the pro-union employee and several others for posting flyers on restaurant bulletin boards and in areas near the restaurants suggesting that public health could be…
The Ninth Circuit Court of Appeals has affirmed the dismissal of a putative class action filed against Dreyer’s Grand Ice Cream, Inc., alleging that the company misrepresented its products by labeling them as “0g Trans Fat” when they actually contain some trans fat per serving. Carrea v. Dreyer’s Grand Ice Cream, Inc., No. 11-15263 (9th Cir., decided April 5, 2012) (unpublished). According to the court, because the products contain less than 0.5 grams of trans fat per serving, “the Nutrition Facts panel must express this amount as zero” under federal law, and the “same rule applies to the statement” on the front-of-package label. “In essence,” said the court, “Carrea seeks to enjoin and declare unlawful the very statement that federal law permits and defines. Such relief would impose a burden through state law that is not identical to the requirements under section 343(r). These claims are therefore expressly preempted.” The court also found…
Health Canada has reportedly notified companies that it will no longer accept natural-health product (NHP) applications for functional foods and similar products that are “represented, packaged and sold as foods.” According to media sources, the agency in a letter to industry explained that NHPs such as prepackaged beverages, protein mixes and other products resembling conventional foods would henceforth fall under food regulations and must adhere to food safety, labeling and marketing standards. Among the approximately 1,000 products affected are those whose manufacturers must work with Health Canada to substantiate health claims, those ready for market without formulation, and those that will need reformulation before accessing the market. The agency anticipates that, with the exception of energy drinks, foods currently being marketed as NHPs will conclude the transition process by the end of December 2012. See Post Media News, April 19, 2012. This latest move to re-categorize NHPs is apparently part…
During a recent meeting of the European Union’s (EU’s) Standing Committee on the Food Chain and Animal Health, EU member states reportedly endorsed a European Commission proposal to establish a new list of permitted flavoring substances for food products. The committee also approved a transitional measure on other flavorings, including those made from non-food sources. Expected to be formally adopted unless opposed by the European Parliament, the two pieces of legislation aim to create clear rules for the use of flavoring substances within the European Union. The European Food Safety Authority and other scientific bodies assessed 2,800 flavorings to establish the list of allowable flavorings for use in food. Set for publication in an online database for consumers, industry and national food-control authorities, the list will be enforced six months after its adoption to provide sufficient time for the EU food industry to comply. See Europolitics, April 24, 2012.
The Food and Drug Administration (FDA) has released a report describing its efforts to ensure the safety of imported food, drugs, medical devices, and other regulated products. Titled “Global Engagement,” the report asserts that FDA-regulated products originate from more than 150 countries, 130,000 importers and 300,000 foreign facilities. According to FDA, food imports have grown each year from 2005 to 2011 by an average of 10 percent, with Americans consuming approximately half of their fresh fruits, 20 percent of fresh vegetables and 80 percent of seafood from imports. “As the volume of imported food increases, so too does the risk that some products will fail to meet FDA standards,” the report states. “The realities of the global marketplace add substantial challenges to FDA’s ability to protect U.S. consumers.” Among its strategies to ensure imported product safety, FDA said it uses portable instruments to screen products, collaborates with coalitions of regulators…
The Food and Drug Administration (FDA) recently published its second annual Reportable Food Registry (RFR) report summarizing information submitted by manufacturers, processors, packers and holders through the online Food Safety Portal from September 8, 2010, to September 7, 2011. Covering all human and animal food/feed regulated by FDA “except infant formula and dietary supplements,” RFR tracks “patterns of food and feed adulteration” to help FDA administer inspection resources more effectively. According to the report, FDA received 1,153 total entries in RFR’s second year compared with 2,600 in its first year, a difference which the agency ascribes to three major events in 2009-2010 that generated 1,284 subsequent records related to sulfites in prepared side dishes, Listeria monocytogenes in cheese spreads and Salmonella in hydrolyzed vegetable protein. Without these entries, FDA stated, the tallies for the first and second years would have differed by only 74 records. In particular, the second annual…
