Sazerac Co., maker of Fireball® cinnamon whiskey, has filed a trademark infringement action against Stout Brewing Co. alleging that the brewer’s Fire Flask displays trademarks and trade dress designed to look like Fireball®. Sazerac Co., Inc. v. Stout Brewing Co., No. 15-0107 (W.D. Ky., filed August 14, 2015). Fire Flask is a malt beer product sold in clear bottles with a red cap and a front label featuring an illustration of a “demon-man with flames emanating from his head” in an “orange-yellow, red, and black” color scheme. The Fire Flask mark “is likely to give rise to confusion among consumers as to the source or sponsorship of Defendant’s products,” the complaint asserts. Sazerac seeks an injunction, corrective advertising, product recalls, an accounting, treble damages, and mark invalidation by the U.S. Patent and Trademark Office. Issue 576
Category Archives Issue 576
A consumer has filed a putative class action against Costco Wholesale Corp. alleging that the company sells shrimp obtained with slave labor in Thailand. Sud v. Costco Wholesale Corp., No. 15-3783 (N.D. Cal., filed August 19, 2015). Citing documentaries and media reports, the complaint asserts that through its store brand, Kirkland, Costco has been selling seafood from Thailand “derived from a supply chain that depends upon documented slavery, human trafficking and other illegal labor abuses.” Further, Costco “does not advise U.S. consumers, in its packaging or otherwise, that the supply line for farmed prawns has been tainted by the use of slave labor in Thailand, and other nearby locations in international waters, including Indonesia, on Thai-flagged ships, and that there has been no eradication of this plague.” Knowingly selling such products and failing to warn the public of the farming conditions allegedly amount to unlawful business practices, misleading and deceptive…
A lawsuit dismissed in 2013 alleging that the National Pork Board purchased the tagline “The Other White Meat” from the National Pork Producers Council for fraudulent reasons has been revived by the Court of Appeals for the D.C. Circuit. Humane Soc’y of the U.S. v. Vilsack, No. 13-5293 (D.C. Cir., order entered August 14, 2015). The lawsuit was initially dismissed because the plaintiffs, including the Humane Society of the United States (HSUS), failed to prove that they had standing to sue. Details of the dismissal appear in Issue 499 of this Update. HSUS alleged that the board, a quasi-governmental entity, pays $3 million annually to license the trademarked phrase from the council, an industry trade group, not because the board intended to market pork with the slogan—which has not been in use since 2011—but rather because it sought to support the council’s lobbying efforts. Upon a de novo review, the appeals…
A California federal court has granted a stay awaiting guidance from the U.S. Food and Drug Administration (FDA) in a putative class action alleging that General Mills uses partially hydrogenated vegetable oils, which contain trans fat, in its baking mixes. Backus v. Gen. Mills, Inc., No. 15-1964 (N.D. Cal., order entered August 18, 2015). After finding that the plaintiff had standing because he alleged economic and immediate physical injury, the court turned to his claims of unlawful and unfair business practices under California law and held that they were plausibly alleged. The public nuisance and implied warranty of merchantability claims were insufficient, the court found, because the plaintiff failed to show a public harm distinct from his own injury and he failed to allege “that the baking mixes were unfit for even the most basic degree of ordinary use.” The court then granted General Mills’ motion to stay the continuing…
After dismissing a portion of the claims in July 2015, a California federal court has dismissed the remaining claims in a lawsuit against Nissin Foods Co. Inc. alleging that the use of partially hydrogenated oil (PHO) violates California law. Guttmann v. Nissin Foods (U.S.A.) Co., Inc., No. 15-0567 (N.D. Cal., order entered August 14, 2015). The plaintiff alleged that Nissin sold unsafe food to the public because of the trans fat content of its Cup Noodles®. Details of the previous ruling appear in Issue 573 of this Update. The plaintiff’s claims of unfair business practices and breach of the implied warranty of merchantability rested on his lack of knowledge about the harms of PHO and trans fat when he purchased Cup Noodles®. He claimed to believe that the products he purchased were safe to consume when they allegedly were not; however, according to three previous lawsuits against other companies on the…
California Assembly Member Mike Gatto (D-Glendale) has introduced a bill (A.B. 14) that would require the labeling of food grown using recycled or treated water from oil and gas field activities. “No one expects their lettuce to contain heavy chemicals from fracking wastewater,” Gatto said. “Studies show a high possibility that recycled oil field wastewater may still contain dangerous chemicals, even after treatment.” The proposed label would state: “Produced using recycled or treated oilfield wastewater.” See Press Release of Assembly Member Mike Gatto, August 17, 2015. Issue 576
U.S. Sens. Dianne Feinstein (D-Calif.), Kirsten Gillibrand (D-N.Y.) and Elizabeth Warren (D-Mass.) have authored an August 17, 2015, letter expressing concern that the U.S. Department of Health and Human Services, U.S. Department of Agriculture and U.S. Department of Defense have not yet responded to an executive order establishing a Presidential Advisory Council on Combatting Antibiotic-Resistant Bacteria. According to the letter, which claims that food animal production accounts for 75 percent of “medically important antibiotics sold each year,” the appointed agencies have failed to provide a formal response or approve nominations for advisory council members. In particular, the senators ask that the final council include at least three experts from outside the food industry. “As noted in our December 2014 letter, representatives from industrial animal producers associations and the veterinary drug industry have publically voiced doubts about the need to reduce antibiotic use in animals and about the impact that the…
The U.S. Food and Drug Administration (FDA) has published a July 31, 2015, warning letter targeting the use of whole stevia leaf in food and beverages. Issued to Ten Ren Tea Co. of San Francisco, Ltd., the letter claims that tea products containing “Stevia leaf, tea bag cut” are adulterated under the Federal Food, Drug, and Cosmetic Act “because they bear or contain an unsafe food additive.” “Any substance added to a conventional food, such as your Ten Ren Chrysanthemum Tea and Hibiscus Spice Tea, must be used in accordance with a food additive regulation, unless the substance is the subject of a prior sanction or is generally recognized as safe (GRAS) among qualified experts for its use in foods [21 CFR 170.30(g)],” notes the agency, which has only permitted highly-refined stevia preparations in specific applications. “[W]e are not aware of any basis to conclude that Stevia leaf is GRAS…
