The Sixth Circuit Court of Appeals has determined that the red dripping wax seal that Maker’s Mark Distillery has registered as a trade dress element used on its Kentucky bourbon bottles is protected under trademark law due to its strength and distinctiveness in the marketplace, thus upholding a lower court ruling that Jose Cuervo infringed the mark by using a similar element on its tequila bottles. Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc., Nos. 10-5508/5586/5819 (6th Cir., decided May 9, 2012). With the apparent care of a connoisseur, the opinion’s author opens with a detailed history, part legend, of the birth of bourbon and explains how Maker’s Mark came to use the red dripping wax seal on its bottles. According to the court, the evidence fully supported the district court’s evaluation of the strength of the mark and its balancing of the factors regarding consumer confusion over Jose Cuervo’s…
Category Archives U.S. Circuit Courts
New York and New Jersey residents have filed a putative class action in an Illinois federal court against the company that makes a line of kefir dairy products, alleging that they are falsely promoted as providing “clinically proven therapeutic benefits for various health conditions.” Keatley v. Lifeway Foods, Inc., No. 12-3521 (N.D. Ill., filed May 8, 2012). According to the complaint, Lifeway claims, without adequate proof, that its kefir products containing ProBoost, “an exclusive blend of live and active probiotic cultures,” can support immunity, enhance digestion, boost well-being, alleviate diarrhea, and otherwise address autoimmune disorders, bad breath, celiac disease, Crohn’s and colitis, high cholesterol, immune deficiency, infantile colic, irritable bowel syndrome, lactose intolerance, seasonal allergies, and yeast infections. The plaintiffs contend that they would not have purchased the products if they had known that ProBoost products “did not have the quality, health benefits or value as promised.” Seeking to certify a…
A coalition of animal rights organizations has reportedly filed a lawsuit against the U.S. Department of Agriculture (USDA) in federal court, alleging that the agency has violated the Poultry Products Inspection Act by allowing foie gras to be sold to consumers. Animal Legal Defense Fund v. USDA, No. __ (C.D. Cal., filed May 9, 2012). According to the plaintiffs, “the USDA is responsible for condemning all poultry products that come from diseased birds. Foie gras consists of the pathologically diseased livers of ducks who are force-fed massive amounts of grain, inducing the disease of hepatic lipidosis, which causes their livers to swell to ten times their normal size.” The organizations have petitioned the agency in the past to require warning labels that would state “NOTICE: Foie gras products are derived from diseased birds.” And they now cite a recent study that purportedly linked the consumption of foie gras to secondary…
A federal court in Maryland has dismissed, under the first-to-file rule, a lawsuit brought by a plaintiff characterized as a “frequent flyer in the United State judicial system,” finding that five similar putative class action lawsuits against the defendants, three of which were filed before the plaintiff filed his complaint, are currently pending in a federal court in California. Hinton v. Naked Juice Co., No. 11-3740 (D. Md., decided April 30, 2012). The plaintiff, who has apparently filed at least 43 other federal civil lawsuits, all dismissed as frivolous, sought $100,000 in damages from the defendants, claiming that they label their beverages as “Non-GMO” and “natural” while using genetically modified and synthetic ingredients. He filed the complaint in state court, and it was removed to federal court. After the defendants sought to dismiss the case or transfer it to California on convenience grounds, the plaintiff filed a motion for remand.…
The Second Circuit Court of Appeals has determined that a New York law enacted in 2004, following the invalidation of a prior version, does not violate the Establishment or Free Exercise Clauses of the U.S. Constitution and is not unconstitutionally vague. Commack Self-Service Kosher Meats, Inc. v. Hooker, No. 11-3517 (2d Cir., decided May 10, 2012). The previous law, which defined “kosher” in terms of orthodox Hebrew religious requirements and required adherence to them, was found to (i) advance religion, i.e., the dietary restrictions of Orthodox Judaism, and (ii) inhibit religion “by preventing labeling of food products as kosher that did not meet the Orthodox Jewish religious requirements.” The newer version simply required those marketing their food products as “kosher” to label them as kosher and to “identify the individuals certifying their kosher nature.” The new law did not “define kosher or authorize state inspectors to determine the kosher nature…
The Second Circuit Court of Appeals has determined that Starbucks Corp. did not violate federal labor law by adopting a dress code which limits the number of pro-union buttons its employees can wear on their uniforms. NLRB v. Starbucks Corp., Nos. 10-3511, 10-3783 (2d Cir., decided May 10, 2012). The National Labor Relations Board (NLRB) had ruled that multiple pro-union buttons, at one-inch in diameter, “did not seriously harm Starbucks’s legitimate interest in employee image because ‘the Company not only countenanced but encouraged employees to wear multiple buttons as part of that image.’ These other buttons, the Board found, were not immediately recognizable by customers as company-sponsored, and the pro-union pins at issue were ‘no more conspicuous than the panoply of other buttons employees displayed.’” Reversing this part of NLRB’s determination, the appeals court said that it had gone too far. “Starbucks is clearly entitled to oblige its employees to wear…
Seeking to certify a class of all consumers who purchased Lucerne® brand Greek yogurt from any of its parent Safeway grocery stores, a California resident has filed a complaint in state court alleging that the product is mislabeled because it is not thickened through straining but rather by the addition of milk protein concentrate (MPC). Tamas v. Safeway, Inc., No. RIC 1206341 (Cal. Super. Ct., Riverside Cty., filed April 27, 2012). According to the complaint, MPC “is essentially a blend of dry dairy ingredients,” often imported and used to increase protein ratios in dairy products; it is allegedly not among “generally recognized as safe” food additives listed by the Food and Drug Administration (FDA). “Thus,” the plaintiff claims, “using MPC in any human food constitutes adulteration.” The plaintiff also alleges that the product does not meet FDA’s standard of identity for yogurt products. The plaintiff contends that she would not…
A New Jersey resident from Scotland, who began working in 2000 for seafood company North Landing Ltd. at the invitation of its former owner, has filed a wrongful discharge suit against the company, its new owners and a supervisor claiming that her concerns over the company’s purportedly illegal practices, when brought to the attention of her supervisor, resulted in him verbally berating and slapping her, thus creating a hostile work environment that she could no longer tolerate. Chadwick v. North Landing Ltd., No. L1776-12 (N.J. Super. Ct., Passaic Cty., filed April 26, 2012). Among other matters, the plaintiff alleges that the company processed and sold farm-raised salmon treated for sea lice with Salmosan, a chemical that she claims the Food and Drug Administration (FDA) has not approved. She contends that when she brought this to her supervisor’s attention, he told her to “delete computer records showing the fish having been…
Determining that it lacks jurisdiction under the Class Action Fairness Act (CAFA) to hear state-law claims alleging consumer fraud in the sale of honey, a federal court in California has remanded to state court a putative class action filed against CVS Caremark Corp. Overton v. CVS Caremark Corp., No. 12-0121 (C.D. Cal., decided April 24, 2012). While the case is one of several that may be transferred to a multidistrict litigation panel (MDL No. 2374) under a motion pending before the Judicial Panel on Multidistrict Litigation, the court retained the authority to decide the jurisdiction issue. To meet its burden of showing that the lawsuit satisfied CAFA’s amount-in-controversy requirement, that is, “the matter in controversy exceeds the sum or value of $5,000,000, exclusive of interest and costs,” the defendant apparently relied on the declaration of a vice president who calculated that the company sold $508,995 worth of the product every…
The Mexican owner of U.S. and Mexican trademarks for an “automatic pistol-shaped bottle design . . . used in connection with alcoholic beverages, with the exception of beers” and its exclusive U.S. distributor have filed trademark infringement claims against the company that sells, markets and imports into the United States Eagle Shot Tequila® in a pistol-shaped bottle. Mexcor Distribs. Inc., v. Purveyors LLC, No. 12-1240 (S.D. Tex., filed April 19, 2012). The plaintiffs allegedly demanded that the defendant cease and desist from doing so, and the defendant failed to respond. Seeking preliminary and permanent injunctive relief, the plaintiffs also seek an accounting and payment of profits earned from the date of first use of the mark, treble damages, attorney’s fees, and costs. They allege trademark infringement and unfair competition under the federal Lanham Act, as well as Texas common law on trademarks and unfair competition. According to the complaint, the defendant’s…
