Whole Foods Market, Inc. and video publisher The Criterion Collection have filed a notice of voluntary dismissal in a trademark dispute over Whole Foods' "Criterion Collection" line of wines. The Criterion Collection v. Whole Foods Mkt., Inc., No. 15-7132 (S.D.N.Y., notice filed October 28, 2015). The parties note that matters have been "amicably settled and adjusted between the parties" and voluntarily dismiss the case with prejudice and without costs to either party. Terms of the settlement were not disclosed. The September 2015 lawsuit alleged that Whole Foods infringed Criterion's trademarked name for a line of republished classic movies. Additional details appear in Issue 578 of this Update. Issue 583
Category Archives 2nd Circuit
Two consumers have reportedly filed a putative class action against Welch Foods, Inc. and Promotion in Motion Cos. alleging their Welch’s fruit snacks products are deceptively advertised as providing vitamins and nutrients despite being “no more healthful than candy.” Atik v. Welch Foods, Inc., No. 15-5405 (E.D.N.Y., filed September 18, 2015). Welch’s packaging advertises its products as produced from “real fruit” despite using only fruit concentrate, the complaint reportedly alleges, and the packaging implies the vitamins in the fruit snacks are derived from the fruit rather than introduced during the production process. This infusion allegedly runs afoul of the U.S. Food and Drug Administration’s “jelly bean rule,” which targets products that would not otherwise meet the agency’s standards for healthful foods without the addition of vitamins during the production process. See FoodNavigator-USA, September 23, 2015. Issue 580
Video publisher The Criterion Collection has filed a trademark dilution suit against Whole Foods and an alcohol supplier alleging that a line of wines introduced in June 2015 infringed on its name. The Criterion Collection v. Whole Foods Mkt., No. 15-7132 (S.D.N.Y., filed September 10, 2015). The Criterion Collection has licensed and published classic films with additional “value added” content since 1984, beginning with Citizen Kane. “To the consuming public, ‘The Criterion Collection’ has become, over time, broadly associated with technical excellence, artistic value and cultural importance,” the complaint asserts. In 2015, Whole Foods and Winery Exchange, Inc. began selling “Criterion Collection” wine purported to be hand-selected by the grocery chain’s master sommelier, Devon Broglie. The Criterion Collection alleges that this use infringes its trademark under the Lanham Act and New York law and seeks a permanent injunction and damages. Issue 578
The U.S. Judicial Panel on Multidistrict Litigation has consolidated 11 putative class actions against Kind LLC alleging that its snack bars are misleadingly marketed as “healthy” despite a high saturated fat content and low levels of nutrients. Kind LLC “All Natural” Litigation, MDL No. 2645 (S.D.N.Y., transfer order entered August 7, 2015). The court found that the actions involved common questions of fact, and all parties favored centralization except one plaintiff who did not oppose the motion. The lawsuits were filed after the U.S. Food and Drug Administration sent a letter to Kind warning against the use of “healthy” on several of its products. Details about the first of these lawsuits appear in Issue 562 of this Update. Issue 575
A consumer has filed a putative class action in New York federal court against Tribe Mediterranean Foods alleging that its hummus is not “all natural” because the product contains genetically modified (GM) ingredients, including canola oil and citric acid. Magier v. Tribe Mediterranean Foods, No. 15-5781 (S.D.N.Y., filed July 23, 2015). The complaint asserts that the “all natural” claim on the label precludes Tribe from using any artificial or synthetic ingredients in the hummus, and the plaintiff argues that she paid a higher price for the product believing it to be free of synthetic or GM ingredients. She claims that Tribe violated the Magnuson-Moss Warranty Act and New York consumer protection statutes and further alleges fraud, unjust enrichment and misrepresentation claims. Meanwhile, in New York state court, a group of consumers has reportedly filed a lawsuit alleging that John Wm. Macy Cheese Crisps, Cheese Sticks and Sweet Sticks contain synthetic…
A group of consumers has filed a putative class action against Perfetti Van Melle USA alleging that the packaging of its Mentos® sugar-free gum contains non-functional slack fill, which amounts to unfair business practices. Hu v. Perfetti Van Melle USA Inc., No. 15-3742 (E.D.N.Y., filed June 26, 2015). The gum is sold as packages of 50 in non-transparent tubes designed to fit into a car’s cup-holder. The complaint alleges that the height of the tube is unnecessary because it could hold approximately 70 pieces of Mentos® gum—leaving the 50 pieces to fill just 71 percent of the tube’s capacity. The 50-piece product’s packaging was “designed by Defendant to give the impression that there is more content than actually packaged,” the complaint asserts, noting that a 15-piece Mentos® gum product does use transparent packaging. The complaint lists two named plaintiffs, residents of New York and California, along with four John Doe…
Echoing a lawsuit brought a week earlier by a competitor in the pepper category, a consumer has filed a proposed class action against McCormick & Co. alleging that the company underfills its tins of black pepper because it reduced the pepper in each tin by 25 percent but retained the traditional packaging size. Dupler v. McCormick & Co., No. 15-3454 (E.D.N.Y., filed June 15, 2015). Facing rising prices for black pepper, the complaint argues, McCormick has begun selling 1.5-ounce, 3-ounce and 6-ounce pepper products in place of its 2-ounce, 4-ounce and 8-ounce products, respectively, but continues to use the larger “iconic” packaging it used for decades. This “slack fill” violates the Food, Drug, and Cosmetic Act, the plaintiff argues, and she seeks to represent a New York class in an action for damages, an injunction and attorney’s fees. The unfair-competition suit against McCormick alleging violations of the Lanham Act and…
A group of plaintiffs has filed a putative class action against Inko’s Tea alleging that the company’s tea products contain ascorbic acid, “a non-natural, highly chemically processed ingredient regularly used as a preservative,” despite advertising the products as “100% Natural.” Collazo v. Inko’s Tea, LLC, No. 15-3070 (E.D.N.Y., filed June 8, 2015). Inko’s has consistently presented its products as “100% All-Natural,” the complaint asserts, and contains “nothing but pure, freshly brewed tea from tea leaves with no added ingredients or preservatives.” The plaintiffs admit that “natural” has not specifically been defined, but assert “there is no reasonable definition of ‘All Natural’ that includes ingredients that even if sourced from ‘nature,’ are subjected to extensive transformative chemical processing before their inclusion in a product.” The complaint cites 51 statutes—one in each state and the District of Columbia—that the allegedly misleading “All Natural” marketing violates in addition to the federal Food, Drug,…
Absolut Co. has filed a complaint and a motion for an injunction against Happy Hearts Wine LLC, a New York City importer of Israeli wine, after Absolut noticed a Certificate of Label Approval filed with the Alcohol and Tobacco Tax and Trade Bureau for “Kahfua,” which it alleges is too close to Kahlua®. Absolut Co. Aktiebolag v. Happy Hearts Wine, LLC., No.15-3224 (E.D.N.Y., motion filed June 3, 2015). Happy Hearts’ Kahfua, a “coffee expresso [sic] liqueur,” is packaged in a similar brown bottle with a similar yellow and red label written in a similar script to Kahlua®, Absolut argues in its motion. It further alleges that Happy Hearts has acted with bad faith by infringing Absolut’s trademarks. “Simply stated, there can be no ‘innocent explanation’ for such a blatant knockoff,” the motion asserts. In addition to trademark infringement, Absolut alleges that Happy Hearts is engaging in trademark counterfeiting, which requires…
Two plaintiffs have filed a lawsuit against Gerber Products Co. alleging that the company misrepresented its Gerber® Good Start® infant formula by advertising it as the “first and only formula whose consumption reduces the risk of infants developing allergies.” Hasemann v. Gerber Prods. Co., No. 15-2995 (E.D.N.Y., filed May 21, 2015). The complaint echoes a similar lawsuit against Gerber pending in New Jersey federal court. The plaintiffs assert that Gerber advertises its product as providing health benefits through partially hydrolyzed whey protein despite an alleged U.S. Food and Drug Administration denial in 2005 that Gerber’s formula aids against allergy development. The plaintiffs seek class certification and damages of more than $5 million. Additional details about Gerber’s successful motion to receive medical records in the analogous case appear in Issue 562 of this Update. See Legal Newsline, June 2, 2015. Issue 567
