A federal court has ruled that Sazerac Co. may take Fetzer Vineyards, Inc. to trial for its trade-dress claims but cannot seek damages because it failed to disclose damage calculations in a timely manner. Sazerac Co. v. Fetzer Vineyards, Inc., No. 15-4618 (N.D. Cal, order entered April 27, 2017). Sazerac, maker of Buffalo Trace bourbon, alleged Fetzer’s use of a buffalo and the words “bourbon barrel aged” on the label of its 1000 Stories zinfandel infringed its federal trademark and trade-dress rights. Sazerac “demonstrated a triable issue whether consumers are likely to be confused by Fetzer’s buffalo and trade dress,” the court found. However, Sazerac indicated it would provide damage calculations based on expert testimony, but it failed to propose a valid methodology until shortly before the settlement conference, when it instead presented calculations based on third-party licensing agreements. Because of the irremediable prejudice to Fetzer, the court ruled that…
Category Archives 9th Circuit
A federal court has granted summary judgment on a majority of issues in a dispute between scientists and the University of California Davis centered on the intellectual property rights of two strawberry varieties. Cal. Berry Cultivars, Inc. v. Regents of U. of Cal., No. 16-2477 (N.D. Cal., filed May 2, 2015). Two former UC Davis scientists and their company sued the university alleging it refused to license the strawberry varieties they invented; additional details on the complaint appear in Issue 604 of this Update. The court granted summary judgment on most of the issues, leaving open the scientists’ assertions that UC Davis breached the implied covenant of good faith and fair dealing as well as the unfair competition claim. However, because the court also ruled in favor of UC Davis’ breach of contract claim, it noted that the jury verdict and final judgment may “sock it to both sides .…
A federal court has reportedly refused to dismiss a mislabeling class action alleging Dr Pepper’s Canada Dry Ginger Ale contains “real ginger” but dismissed the plaintiffs’ fraud claims with leave to amend. Fitzhenry-Russell v. Dr Pepper Snapple Grp., Inc., No. 170564 (N.D. Cal., motion hearing April 19, 2017). While the court found the plaintiffs’ labeling claims “plausible,” it rejected the fraud allegations for a lack of precision. The complaint asserts that the ginger ale’s label does not include “real ginger root” as an ingredient but lists chemical flavoring instead. A similar class action against Dr Pepper was transferred to California’s Northern District in April 2017; details on that action appear in Issue 628 of this Update. See Law360, April 19, 2017. Issue 632
The Ninth Circuit has reversed the dismissal of a putative class action alleging that Gerber’s baby food labels misled consumers about the nutritional value of its baby foods despite being “technically correct.” Bruton v. Gerber Prods. Co., No. 1515174 (9th Cir., order entered April 19, 2017). The plaintiff argued that the presence of impermissible nutrient claims on Gerber labels combined with the absence of such claims on competitors’ products misled the public into believing Gerber products were of higher quality. The district court dismissed the action, finding no genuine dispute of material fact because the labels were accurate, but the Ninth Circuit found that “even technically correct labels can be misleading.” The appeals court also reversed the lower court’s dismissals of claims for unjust enrichment and class certification. Issue 632
A consumer has filed a projected class action alleging Asahi Beer U.S.A., Inc. misleads customers into believing that Asahi Super Dry beer is made in Japan despite being produced in Canada. Panvini v. Asahi Beer U.S.A., Inc., No. 17-1896 (N.D. Cal., filed April 5, 2017). The plaintiff claims that although most of the Asahi Dry beer sold worldwide is brewed in and exported from Japan, the product sold in the United States is made in Toronto, Canada. The complaint alleges that Asahi misleads consumers by using Japanese lettering on labels and packaging and by describing it as the “most popular high-quality beer in Japan.” Claiming violations of California’s consumer-protection statutes, the plaintiff seeks injunctive and equitable relief, restitution, damages and attorney’s fees. Issue 631
A federal court in California has given preliminary approval to a proposed $8.25-million settlement of a class action claiming that kombucha tea products manufactured by Millennium Products, Inc. and sold at Whole Foods were mislabeled. Retta v. Millennium Products, No. 15-1801 (C.D. Cal., order entered January 31, 2017). The plaintiffs claimed that the kombucha labels (i) used the term “antioxidant” when the product contained none; (ii) used the term “non-alcoholic” when the fermented tea product allegedly contained alcohol in excess of the amount permitted for nonalcoholic beverages; and (iii) understated the amount of sugar in the product. In its order, the court granted class certification and approved monetary and injunctive relief, including Millennium’s agreements to (i) add warning labels that the product contains alcohol and must be refrigerated because it is under pressure; (ii) conduct regular sample testing to ensure the accuracy of the products’ sugar content; and (iii) adopt…
A jury has unanimously found Elements Spirits Inc. and its founder liable for trade dress infringement of Globefill Inc.'s Crystal Head, a vodka created by actor Dan Aykroyd and sold in a skull-shaped container. Globefill Inc. v. Elements Spirits Inc., No. 10-2034 (C.D. Cal., verdict entered March 29, 2017). Just before the case went to jury deliberation, Globefill called a final rebuttal witness, a sculptor who testified that the founder of Elements Spirits asked him in 2009 to create a mold of the Crystal Head skull bottle that served as the base for Elements Spirits' Kah tequila bottles. After four hours of deliberation, the jury concluded the three-week trial with a verdict for Globefill. See Law360, March 29, 2017. Issue 629
Energy-drink company Rockstar faces a putative class action alleging the company underfilled cans of its coffee drinks, giving the company an unfair competitive advantage and shortchanging consumers. Podawiltz v. Rockstar, Inc., No. 17-0477 (D. Ore., filed March 26, 2017). The plaintiff claims he bought several cans of Rockstar’s coffee drinks labeled “15 fl oz [473 ml],” but that independent lab testing showed the cans contained an average of 443 milliliters, about six percent less. For an alleged violation of the Oregon Unlawful Trade Practices Act, the plaintiff seeks class certification, injunctive relief, an accounting, restitution, damages and attorney’s fees. Issue 629
A California plaintiff has filed suit against the makers of Jelly Belly Sport Beans claiming the candy maker’s labeling leads consumers to believe the product does not contain sugar. Gomez v. Jelly Belly Candy Co., No. 17-0575 (C.D. Cal., filed March 24, 2017). The complaint alleges the product label says Sport Beans contain “evaporated cane juice,” but not sugar or any other “commonly known sweetener.” The plaintiff claims such labeling violates a Food and Drug Administration guidance document advising manufacturers that the term “evaporated cane juice” is not the common or usual name of any type of sweetener and that the ingredient should be listed on product labels as sugar. The plaintiff also claims Sport Beans are marketed as “energizing,” containing “quick energy for sports performance,” as well as carbohydrates, electrolytes and vitamins. For allegations of negligent misrepresentation and California consumer-protection statute violations, the plaintiff seeks class certification, restitution, damages,…
Just Born, Inc. is facing a putative class action alleging its boxes of candy are underfilled by 35 percent. Escobar v. Just Born, Inc., No. 17-1826 (C.D. Cal., removed to federal court March 17, 2017). The plaintiff allegedly bought a box of the company’s Mike and Ike candy at a movie theater and claims Just Born is “falsely and deceptively misrepresenting” the amount of product contained in movie boxes of Mike and Ike and Hot Tamales candies it sells at movie theaters and retail outlets nationwide. The plaintiff claims that because she bought the product at a movie theater, where it was stored in a glass showcase, she paid for the product before she took possession of it and had no opportunity to inspect the packaging for “other representations of quantity of candy product contained therein other than the size of the box itself.” The plaintiff also relies on a…
