Prichard’s Distillery Inc., maker of Benjamin Prichard’s Double Barreled Bourbon, has filed a lawsuit against Sazerac Co. alleging that the liquor manufacturer has violated its trademark in “double barreled” by selling A. Smith Bowman Limited Edition Double Barrel Bourbon Whiskey and Buffalo Trace Experimental Collection Double Barreled, a bourbon. Prichard’s Distillery Inc. v. Sazerac Co., No. 14-1646 (U.S. Dist. Ct., M.D. Tenn., filed August 11, 2014). Prichard’s claims that it has owned a trademark on the use of “double barreled” in liquor sales since 2002, and the term comes from Prichard’s distilling process, which involves aging the bourbon in one barrel, diluting it to a lower proof, then aging it in a second barrel to reinforce the flavor. The company seeks an injunction preventing Sazerac from using “double barreled” on its products as well as damages multiplied due to Sazerac’s “willful and wrongful conduct.” Issue 535
Category Archives 6th Circuit
A Michigan federal court has denied a motion filed by FPC Flexible Packaging Corp. and The International Group, Inc. to dismiss evidence for spoliation in a case accusing the packaging company and the wax maker of providing Kellogg defective cereal liners, resulting in a $70 million recall. Kellogg Co. v. FPC Flexible Packaging Corp., No. 11-272 (U.S. Dist. Ct., W.D. Mich., S. Div., order entered August 12, 2014). Kellogg allegedly received several consumer complaints of unusual odors in its products, and the company said it obtained samples of products from two of the consumers. The cereal samples have since disappeared, but Kellogg preserved a piece of the plastic liner provided by one of the consumers. International and FPC argued that the loss of evidence could not have been accidental because Kellogg managed to keep the sample of the liner, but the court dismissed their arguments. “An appropriate jury instruction addressing the use…
A multidistrict litigation (MDL) court in Ohio has dismissed with prejudice six putative class actions involving plaintiffs from California, Colorado, Florida, New Jersey, Ohio, Pennsylvania, and Texas, alleging that Anheuser-Busch “routinely and intentionally adds extra water to its finished product to produce malt beverages that ‘consistently have significantly lower alcohol content than the percentages displayed on its labels.’” In re Anheuser-Busch Beer Labeling, Mktg. & Sales Practices Litig., MDL No. 13-2448 (N.D. Ohio, order entered June 2, 2014). Additional details about the litigation and the order consolidating the cases appear in issues 473 and 487 of this Update. Federal regulations allow malt beverages containing 0.5 percent or more alcohol by volume a tolerance of 0.3 percent in the alcohol content, “either above or below the stated percentage of alcohol,” and the affected jurisdictions have adopted or refer to these regulations in their statutes and regulations. The defendant argued in its motion…
Diageo Americas Supply, Inc. has filed a declaratory judgment action against the Tennessee Alcoholic Beverage Commission director challenging the constitutionality of a 1937 law that requires licensed alcohol beverage makers in the state to store their products “only within the county authorizing the operation or in a county adjacent to the county authorizing the manufacturing operation, and such possession shall be limited to storage facilities of such manufacturer” (Storage Law). Diageo Americas Supply, Inc. d/b/a George A. Dickel & Co. v. Bell, No. 14-0873 (M.D. Tenn., filed March 28, 2014). Alleging that the law has never been enforced, the complaint includes the defendant’s March 20 letter warning the company that it was in violation of the Storage Law because it “is storing product (manufactured/distilled alcoholic beverages) produced at its Tullahoma, Tennessee, distillery in warehouses located in Louisville, Kentucky.” According to the company, most of its distilled alcohol beverages are stored on-site…
A federal court in Kentucky has determined that distillery neighbors may proceed with state law-based tort claims alleging that the facility’s emissions cause “whiskey fungus” to accumulate on their real and personal property. Merrick v. Diageo Americas Supply, Inc., No. 12-0334 (W.D. Ky., Louisville Div., order entered March 19, 2014). Additional details about the lawsuit appear in Issue 444 of this Update. Finding conflicting authority on whether the Clean Air Act (CAA) preempts the plaintiffs’ claims for negligence and gross negligence, temporary and permanent nuisance and trespass, the court carefully analyzed related U.S. Supreme Court, federal court and state court rulings. It concluded that the Third Circuit’s analysis in Bell v. Cheswick Generating Station, 734 F.3d 188 (3d Cir. 2013), and the Sixth Circuit’s in Her Majesty the Queen in Right of the Province of Ontario v. City of Detroit, 874 F.2d (6th Cir. 1989), “capture the prevailing law for…
The Sixth Circuit Court of Appeals has determined that Kentucky has a rational basis for restricting the types of retailers that may be issued licenses to sell liquor and wine, thus ruling that the law does not violate grocers’ equal protection rights. Maxwell’s Pic-Pac, Inc. v. Dehner, Nos. 12-6056, -6057, -6182 (6th Cir., decided January 15, 2014). A state law adopted in 1939 that today prohibits the issuance of a retail drink license to “any business in which a substantial part of the commercial transaction consists of selling at retail staple groceries or gasoline and lubricating oil,” was interpreted in 1982 by the Alcohol Beverage Control Board in a regulation that defines “substantial part” (10% or greater of the monthly gross sales) and “staple groceries” (foods intended for human consumption other than soft drinks, candy, hot foods, and foods prepared for immediate consumption). Grocers challenged the restrictions on equal-protection, separation-of-powers…
According to a news source, Jack Daniel’s Properties, Inc. has filed a trademark infringement action against the companies that produce and sell Popcorn Sutton’s® Tennessee white whiskey. Jack Daniels Props., Inc. v. J&M Concepts, LLC, No. 13-1156 (M.D. Tenn., filed October 18, 2013). The whiskey is apparently named after an Appalachian moonshiner who killed himself rather than serve a federal sentence after he was convicted of offenses relating to moonshine production. The defendants purportedly sold their product first in mason jars, but then switched to bottles that allegedly copy Jack Daniel’s bottle—“a square-shaped bottle with angled shoulders that house a signature and beveled corners, and labeling with a white-on black color scheme, filigree designs, and font style reminiscent of that of the Jack Daniel’s trade dress,” the complaint said. Alleging willful trademark infringement, deceptive trade, fraudulent misrepresentation, and unfair competition, the company seeks injunctive relief, disgorgement of unjust profits and…
The companies that make 5-Hour Energy have reportedly expanded a quest to keep their recipe from disclosure by seeking the application of a Tennessee law protecting trade secrets to requests made by the Tennessee Department of Commerce and Insurance and state attorney general for all of the product’s ingredients and their amounts. Information about the suit that Living Essentials and Innovation Ventures filed in Oregon seeking the same relief appears in Issue 488 of this Update. Thirty-three states have launched an investigation into 5-Hour Energy, which purportedly contains more caffeine and other stimulant ingredients than other similar products. See The Tennessean, June 24, 2013.
The Judicial Panel on Multidistrict Litigation (JPML) has ordered the centralization of six actions claiming that Anheuser-Busch Companies, LLC, systematically overstated the alcohol content of its malt beverage products by diluting them with water. In Re: Anheuser-Busch Beer Labeling Mktg. & Sales Practices Litig., MDL No. 2448 (JPML, decided June 10, 2013). The putative class actions being centralized have all alleged that the beer manufacturer added extra water to 11 different products despite its claims that any deviation from the alcohol content stated on the product label “is within the range permitted by federal regulation.” In transferring the actions to the U.S. District Court for the Northern District of Ohio, the panel agreed with plaintiffs that “notwithstanding defendants’ apparent acknowledgement of some variance for unspecified products, the alleged conduct at issue—systematic overstatement of alcohol content—will remain in dispute and will involve complex discovery concerning the calibration of the involved equipment…
A YUM! Brands shareholder has brought a derivative action on behalf of the company against its officers and directors in a federal court in Kentucky, alleging they inflated the company’s growth predictions and failed to promptly inform shareholders that the company purchased chicken with allegedly excessive levels of antibiotics and toxic chemicals for sale in KFC establishments in China; according to the complaint, once the information became public, business in China and the company’s share price plummeted, while the defendants “profited handsomely” from “dumping more than $64.6 million of personally held common stock during the Relevant Period.” Zona v. Novak, No. 13 506 (W.D. Ky., filed May 21, 2013). Alleging breach of fiduciary duty, insider selling and misappropriation of information, and unjust enrichment, the plaintiff seeks damages, injunctive relief, disgorgement, attorney’s fees, costs, and expenses. She claims that management knew as early as 2009 that the chicken purchased in China was tainted…
