Category Archives 5th Circuit

Upton's Naturals Co. has filed a lawsuit challenging Mississippi's law prohibiting the use of "meat" to describe products that are not derived from animals. Upton's Naturals Co. v. Bryant, No. 19-0462 (S.D. Miss., filed July 1, 2019). Upton's, which makes "vegan burgers," "vegan bacon" and "vegan chorizo," argues that the law is a "content-based regulation of speech" that "has no positive impact on society"—rather, it "harms society"—and "does not address any real problem in a meaningful way, but instead creates an artificial one" because it lowers consumer understanding of vegan products. Upton's seeks declaratory judgment that the law violates the First and Fourteenth Amendments, preliminary and permanent injunctions, attorney's fees and $1 in damages.

A consumer has filed a putative class action alleging that North Dallas Honey Co. sells its Nature Nate’s honey as “100% raw” but heats it to 120 degrees during bottling. Pierce v. N. Dallas Honey Co., No. 19-0410-B (N.D. Tex., Dallas Div., filed February 19, 2019). The plaintiff argues that heating honey to more than 105 degrees can cause “[m]ost or all of the enzymes” to be “lost” or “denatured.” The plaintiff cites the “international standard promulgated by Codex Alimentarius for honey” to argue that Nature Nate’s honey contains elevated values of 5-hydroxymethylfurfural (HMF), which can indicate that “the honey has been heated enough to break down the enzymes contained in the honey.” The complaint further asserts that the honey product “is also not necessarily 100% honey” because some tested samples allegedly “showed that syrups had been added to the honey.” For allegations of negligence, fraudulent misrepresentation, fraudulent concealment, unjust…

The owner of a trademark on "Metchup" has filed an infringement suit alleging that H.J. Heinz Co.'s "Mayochup" is "confusingly similar" to his protected trademark. Perry v. H.J. Heinz Co. Brands, No. 19-0280 (E.D. La., filed January 14, 2019). The plaintiff has purportedly used the "Metchup" mark to sell his ketchup-mayonnaise and mustard-mayonnaise combinations since 2010, and he asserts that Kraft Heinz Co. has infringed on his trademark by using a mark that "bears a particularly strong phonetic similarity to Plaintiff's mark. Depending on pronunciation and/or regional dialect, the marks are virtually indistinguishable from one another." The complaint further cites Google search results for "metchup," which direct searchers to the Heinz website, as evidence that consumers are confusing the two marks. The plaintiff seeks an injunction, destruction of infringing materials, damages and attorney's fees for allegations of counterfeiting, trademark infringement, false designation of origin and violations of Louisiana's business codes.

Pepperidge Farms Inc. faces a lawsuit alleging that a woman became ill with Salmonella gastroenteritis after eating the company’s Goldfish crackers, which purportedly contained contaminated dry whey powder. Finch v. Pepperidge Farms, Inc., No. 18-152 (N.D. Miss., filed August 8, 2018). The plaintiff alleges that she bought and ate the Goldfish on July 19, 2018, became ill that evening, and tested positive for Salmonella one week later. Pepperidge Farm issued a recall of four varieties of Goldfish after its supplier notified it of potential contamination. Claiming manufacturing-defect strict liability, failure-to-warn strict liability, negligence per se, negligence and breach of warranties, the plaintiff seeks damages and attorney’s fees.

A federal court in Texas has granted partial summary judgment to WFM Private Label L.P., a subsidiary of Whole Foods Market Inc., in a contract dispute related to 365 Everyday Value Greek yogurt's sugar content. WFM Private Label, L.P., v. 1048547 Ontario Inc., No. 14-1013 (W.D. Tex., entered June 18, 2018). Whole Foods hired Skotidakis Goat Farm (SGF) to supply Greek yogurt products for the 365 Everyday Value brand, and SGF provided the company with nutritional information. SGF later received additional lab results indicating a higher sugar content than previous testing indicated, but it did not notify Whole Foods of the new results until a few days before Consumer Reports published an article alleging that the company's plain yogurt contained five times the sugar content listed on the product labeling. Eleven putative class actions were filed against Whole Foods; according to the vendor agreement, SGF had an obligation to indemnify Whole Foods in the lawsuits.…

A federal court in Louisiana has dismissed with prejudice a lawsuit alleging that Chipotle Mexican Grill's food caused the plaintiff to contract Helicobacter pylori, holding that the plaintiff had not pleaded "any semblance of a fact that causally connects [his] illness" with Chipotle. Gilyard v. Chipotle Mexican Grill Inc., No. 17-0441 (W.D. La., entered June 14, 2018). The court found that the plaintiff failed to plead "factual allegations sufficient to show that Chipotle failed to act as a prudent person skilled in food preparation." The only factual allegation in the complaint, the court noted, was that the plaintiff regularly ate at Chipotle in the two months before he was diagnosed with an H. pylori infection. Further, the court found, the complaint did not allege how the food was defective, how the duty of reasonable care in making or storing the food was breached, or that Chipotle provided contaminated food or utensils.

A couple has reportedly filed a lawsuit against the Texas Department of State Health Services alleging that “burdensome” regulations bar them from selling their canned pickled vegetables at farmers’ markets. The plaintiffs own a farm near Austin and sell vegetables locally, but when they sought to expand into sales of pickled beets, okra and carrots, they learned that Texas bars sales of all pickled vegetables except cucumbers. Under state law, bakers can sell goods at markets, fairs and festivals without becoming licensed food manufacturers. The Health Services Department has limited sales to pickled cucumbers, specifically excluding other canned pickled vegetables. State Rep. Eddie Rodriguez (D-Austin), who sponsored an amendment to the law to allow the sale of pickles, reportedly told the Texas Tribune that he did not know the department’s rules construed "pickles" to mean only pickled cucumbers. "That pickle definition is kind of flying in the spirit of the legislation,”…

The U.S. Court of Appeals for the Fifth Circuit has affirmed a ruling that a Texas restaurant, “The Krusty Krab,” infringed Viacom International Inc.'s common law trademark. Viacom Int’l, Inc. v. IJR Capital Invs., No. 17-20334 (5th Cir., entered May 22, 2018). The court held that Viacom had established both use and distinctiveness of the mark because "The Krusty Krab” had been extensively and consistently licensed, establishing Viacom’s ownership of the mark as an identifier of goods and services. The court also found an impermissible likelihood of consumer confusion. Although the court noted that its ruling did not establish trademark protection “in every context” for Viacom’s mark, it affirmed the finding of the district court that Viacom had established its ownership in common law.

Delicious Inc. has filed a lawsuit alleging Texas restaurant Delicious Tamales and its owners have infringed on Delicious Inc.'s trademark. Delicious Inc. v. Lopez, No. 18-0041 (W.D. Tex., filed January 12, 2018). Delicious Inc. argues that it has owned the federal rights to the "Delicious Tamales" mark since 2012 in the categories of "Tamales, bunuelos, hot sauce and tortillas" as well as "Chile con carne, and Mexican barbecue, namely, prepared meat." In 2017, the defendants opened a restaurant under the Delicious Tamales name, "brazenly located" a "mere one mile from Plaintiff's long-established location" in San Antonio. Delicious Inc. alleges it received "numerous complaints from customers regarding the quality of the food sold at Defendant's location" because they believed "that both locations were owned by the same individuals or company." Alleging violations of the Lanham Act as well as state trademark infringement, the plaintiffs seek a permanent injunction, damages, costs and attorney's…

A Texas appeals court has held that Mark Anthony Brewing cannot produce and label a house-brand beer for TGI Friday’s restaurants because state law prohibits “overlapping” relationships among alcohol manufacturers, distributors and retailers. Texas Alcoholic Beverage Comm’n v. Mark Anthony Brewing, Inc., No. 16-0039 (Texas Ct. App., entered October 13, 2017). The Texas Alcoholic Beverage Commission (TABC) rejected Mark Anthony Brewing's application for approval of the beer labels, which it created as part of a licensing agreement with TGI Friday's, on the grounds that Texas’ “tied-house” statutes prohibit such business relationships. Specifically, TABC found, the agreement violated the part of the administrative code providing that “[n]o application for a label shall be approved which indicates by any statement, design, device, or representation that the malt beverage is a special or private brand brewed or bottled for, or that includes the name, trade name, or trademark of any retailer permittee or…

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