Ganeden Biotech Inc. has filed a lawsuit against American Brewing Co., Inc. and its 2015 acquisition, B&R Liquid Adventure, alleging the companies infringe its patents on a particular strain of probiotic bacteria through the marketing and sale of their búcha® beverage. Ganeden Biotech, Inc. v. Am. Brewing Co., Inc., No. 16-0876 (N.D. Ohio, filed April 13, 2016). Ganeden asserts that it holds a patent on a specific GBI-30 strain of Bacillus coagulans as used in tea and another patent on the strain as used in all other products. B&R began selling búcha® in 2013 and lists the GBI-30 strain as an ingredient, according to the complaint. “Because Ganeden holds a patent on GBI-30 and is the legitimate source of GBI-30, Ganeden believes that Defendants’ products likely contained Bacillus coagulans (which Defendants could have obtained elsewhere) but not always the GBI-30 strain as labeled,” the biotech company argues. For allegations of patent infringement and unfair…
Category Archives 6th Circuit
The U.S. Court of Appeals for the Sixth Circuit has affirmed an Ohio court’s dismissal of multidistrict litigation alleging Anheuser-Busch intentionally overstates the alcohol content on its malt beverages. In re Anheuser-Busch Beer Labeling Mktg. & Sales Prac. Litig., No. 14-3653 (6th Cir., order entered March 22, 2016). The lower court had dismissed the case based on a Federal Alcohol Administration Act (FAAA) rule allowing content variations of up to 0.3 percent under state and federal law, and the appeals court reached the same conclusion in its de novo review. On appeal, the plaintiffs argued the FAAA rule was intended to apply only to unintentional variance, but the court disagreed, finding no evidence that the law sought to prohibit intentional variations within the 0.3 percent tolerance. Issue 599
A woman has filed a lawsuit alleging Dole Fresh Vegetables, Inc. sold salad mixes contaminated with Listeria. Georgostathis v. Dole Fresh Vegetables, Inc., No. 16-0360 (S.D. Ohio, filed March 7, 2016). The woman asserts that after her mother ate the salad mix, she became infected with Listeria and felt extreme head and neck pain that ultimately caused her to become comatose. The complaint argues that the strain of Listeria in the plaintiff’s salad mix is “indistinguishable from the strain involved in the recent Listeria outbreak linked to Dole salad products produced at the Springfield, Ohio processing facility.” The outbreak has reportedly sickened nearly 30 people in the United States and Canada who were all hospitalized as a result of contracting Listeria. The plaintiff, who is represented by foodborne-illness attorney Bill Marler, seeks damages and attorney’s fees for allegations of negligence, product liability and violations of Ohio consumer-protection law and the…
A California federal court has dismissed a lawsuit against Chipotle Mexican Grill Inc. alleging the company falsely advertises its food as free of genetically modified organisms (GMOs) despite selling meat and dairy produced from animals fed GMO products as well as soft drinks manufactured with GMO corn syrup. Gallagher v. Chipotle Mexican Grill, Inc., No. 15-3952 (N.D. Cal., order entered February 5, 2016). The plaintiff had failed to plausibly plead her allegations, the court found, because she failed to specify which products she purchased. Accordingly, the court granted Chipotle’s motion to dismiss but allowed the plaintiff leave to amend. Additional information about the complaint appears in Issue 577 of this Update. Meanwhile, a jury ordered Chipotle to pay $351,936 in back pay and $255,000 in punitive damages to three female former managers at restaurants near Cincinnati, Ohio, over allegations of gender discrimination. Rogers v. Chipotle Mexican Grill Inc., No. 13-0146…
A Kentucky federal court has granted a motion to dismiss an action against the owner of Duck Dynasty trademarks alleging infringement based on jurisdictional issues. Chinook USA v. Duck Commander, Inc., No. 14-1015 (W.D. Ky., Louisville Div., order entered January 8, 2015). In 2014, Duck Commander licensed the rights to several trademarks related to Duck Dynasty, including “Duck Commander Family Foods,” “Uncle Si” and “Si Robertson,” to Chinook for use on several types of beverages. Chinook later learned that Duck Commander also licensed the same rights to other companies, including Go-Time and Checkered Flag Business. Chinook sued, arguing that it held exclusive rights to the use of the trademarks on beverages. In “colorful” filings recounting “Bill Russell’s collegiate basketball career, the Scottish jurist and poet Sir Walter Scott’s Marmion, and Jackie Gleason’s role in an short-lived television series from the late 1940s,” Chinook argued that Duck Commander and the beverage…
The Sixth Circuit Court of Appeals has denied a request for an en banc rehearing in a lawsuit alleging that the distilleries of two Diageo Americas Supply Inc. brands, J&B® and Johnnie Walker®, caused the growth of a black fungus on outdoor surfaces near the plants. Merrick v. Diageo Ams. Supply Inc., No. 14-6198 (6th Cir., order entered December 7, 2015). Diageo had sought to dismiss the suit by arguing the claims conflicted with emissions regulations under the Clean Air Act, but a lower court and the Sixth Circuit disagreed upon hearing the arguments. Diageo then requested en banc reconsideration, but the one-page denial noted that “the issues raised in the petition were fully considered upon the original submission and decision of the case.” Details about the case appear in Issues 519 and 546 of this Update. Issue 587
An Ohio federal court has dismissed fraud and consumer-protection claims against Fifth Dimension, maker of Tito’s Handmade Vodka®, in a putative class action alleging the beverage company misrepresents the process of making its vodka by calling the product “handmade.” Terlesky v. Fifth Dimension, No. 15-0374 (S.D. Ohio, order entered November 17, 2015). The court analyzed each claim, first finding that the plaintiff did not have standing to sue under the Ohio Deceptive Trade Practices Act. Turning to the Ohio Consumer Sales Protection Act, the court determined that plaintiffs bringing class claims must show the alleged violation was declared to be deceptive by the attorney general or a court before the transaction. Finding no such facts in the case, the court dismissed the class claim but allowed the individual claim to proceed. The court also allowed the plaintiff’s promissory estoppel claim to continue. Turning then to the negligent misrepresentation claim, the…
Sazerac Co., maker of Fireball Cinnamon Whisky®, and Stout Brewing Co. have filed a joint stipulation of dismissal with prejudice in a lawsuit alleging that Stout infringed Sazerac’s trademark by selling a malt specialty beer called “Fire Flask.” Sazerac Co. Inc. v. Stout Brewing Co. LLC, No. 15-0107 (W.D. Ky., stipulation filed September 24, 2015). Stout has reportedly agreed to stop selling its existing Fire Flask products and will redesign the label for future production. Each party will pay its own attorney’s fees and costs. Additional details on the August 2015 complaint appear in Issue 576 of this Update. See Law360, September 24, 2015. Issue 580
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
A Michigan federal court has denied The International Group Inc.’s (IGI’s) motion for summary judgment in a case alleging that the waxmaker and FPC Flexible Packaging Corp. provided Kellogg with non-merchantable cereal bags. Kellogg Co. v. FPC Flexible Packaging Corp., No. 11-272 (W.D. Mich., order entered September 30, 2014). IGI supplied wax to FPC, which used it to construct cereal bags sold to Kellogg. The bags were then used as liners in boxes of Corn Pops, Froot Loops, Apple Jacks, and Honey Smacks, and after consumers complained of nausea and diarrhea, Kellogg destroyed its inventory of the cereals and issued vouchers to consumers who had already purchased boxes. After ruling that Canadian law applied, the court assessed the contract between FPC and IGI, determining when it began, what terms were implicit and what warranties existed as a result. “Questions of fact exist as to whether the wax was merchantable,” the…
