Frito-Lay North America, Inc. has filed a trademark and patent infringement lawsuit in a Texas federal court against a company that purportedly makes a similar tortilla chip product and sells it in similar packaging. Frito-Lay N. Am., Inc. v. Medallion Foods, Inc., No. 12 00074 (E.D. Tex., filed February 10, 2012). At issue are Frito-Lay’s TOSTITOS SCOOPS! ® tortilla corn chips, which have a distinctive shape for use with salsa, guacamole and other dips. According to the complaint, Frito-Lay has registered the shape, brand design, and product and brand names as marks with the U.S. Patent and Trademark Office and holds several patents for the processes and systems used to manufacture the chips. The defendant makes and sells a product called BOWLZ, which Frito-Lay alleges infringes its marks, trade dress and patents. With counts for federal trademark infringement, trade dress infringement and unfair competition, federal trademark dilution, patent infringement, common law…
Category Archives U.S. Circuit Courts
A federal court in Pennsylvania has granted the U.S. government’s motion for summary judgment and permanently enjoined a Pennsylvania dairy farmer from selling raw milk and milk products in interstate commerce. United States v. Allgyer, No. 11-02651 (E.D. Pa., decided February 2, 2012). According to the court, Daniel Allgyer’s interstate sales of raw milk were discovered through an undercover investigation that involved placing online orders for the product through a membership-only group. Members were cautioned by the website to “not share information” about the group with government agencies or doctors. The Food and Drug Administration (FDA) apparently purchased some of the milk for delivery out of state, and independent testing confirmed that it was unpasteurized. FDA warned the farmer to stop violating federal law, but he continued to make deliveries to out-of-state consumers through a different membership organization. The court rejected the defendant’s arguments that summary judgment should not be…
A federal court in California has denied a motion for class certification filed by a plaintiff who alleged that Vital Pharmaceuticals, Inc. misled consumers by claiming their energy drinks, marketed under the brand name Redline®, were safe and effective for enhancing energy and promoting weight loss. Aaronson v. Vital Pharms., Inc., No. 09-1333 (S.D. Cal., decided February 3, 2012). The plaintiff allegedly became shaky and his heart raced when he consumed the product, so he claimed that the company failed to adequately inform consumers about its risks. According to the court, the plaintiff failed to establish typicality, adequacy of representation and predominance. As to typicality, he apparently admitted that he never read the product’s warning labels, thus subjecting him to “unique defenses that are not applicable to the class members who read the labels.” As to adequacy of representation, the court found, “The record confirms that Aaronson and/or his counsel have…
A New York resident has reportedly filed a putative class action in federal court, alleging that Frito-Lay misleads consumers by promoting its snack products as “all natural” when they actually contain corn and oils made from genetically engineered (GE) plants. Shake v. Frito-Lay N. Am., Inc., No. 12-408 (E.D.N.Y., filed January 30, 2012). Similar litigation was filed in December 2011 in California. Details about that case appear in Issue 421 of this Update. According to a news source, plaintiff Chris Shake alleges that he paid an additional 10 cents per ounce of Tostitos® and SunChips® over other comparable products and would not have done so had he known that the defendant’s products are not made with “all-natural ingredients.” A company spokesperson was quoted as saying that the product labeling “complies with all regulatory requirements.” Shake reportedly alleges damages in excess of $5 million. See Reuters, January 30, 2012.
A Pennsylvania resident has filed a putative class action in a Florida federal court seeking to represent Florida and multistate classes of consumers allegedly misled by claims that Tropicana orange juice products are “pure” and “natural.” Pederson v. PepsiCo, No. 12-00104 (M.D. Fla., filed January 18, 2012). Similar to lawsuits already filed in New Jersey and California, this complaint alleges that Tropicana branded fruit juices are extensively processed and flavored for mass-marketing purposes. Additional information about the other lawsuits appears in Issue 422 of this Update. According to the complaint, “Defendants heavily process Tropicana Orange Juice by pasteurizing, de-aerating, and storing it for long periods of time at a ‘tank farm’ and under a nitrogen blanket, which strips the juice of its flavor and aroma. Defendants then re-flavor the product with chemical ‘flavor packets’ before it is packaged into a carton and sold to the consumer.” Alleging violations of the Florida…
A federal court in the District of Columbia has denied a motion to certify a class of Los Angeles County Whole Foods shoppers alleging that the company’s 2007 merger with Wild Oats “substantially lessened competition” in violation of the Clayton Act, “created an unlawful monopoly” under the Sherman Act, and “constituted an unlawful agreement in restraint of trade” in violation of both acts. Kottaras v. Whole Foods Mkt., Inc., No. 08-1832 (D.D.C., decided January 30, 2012). The plaintiff, a California resident and patron of both stores, claims that the merger unlawfully raised prices on certain products by foreclosing competition in the premium, natural and organic supermarket sector. According to the court, injury to individual class members “cannot be proven through classwide evidence” and thus the action fails to “satisfy Rule 23(b)(3)’s requirement that common questions predominate over individual ones.” The court also found that the methodology of the plaintiff’s expert…
Spike, LLC, a company that makes and distributes energy drinks, has filed a lawsuit against the company it hired to destroy 18 pallets of products that Spike determined should be removed from the marketplace as unfit for sale, claiming that the recycling company failed to destroy the products and, in fact, sold them “thereby undercutting Spike’s sales.” Spike, LLC v. Nationwide Recycling, LLC, No. 12CV00111 (Wis. Cir. Ct., Waukesha Cty., filed January 10, 2012). Seeking compensatory and treble damages, attorney’s fees, and interest, the plaintiff alleges conspiracy; breach of contract; property loss through fraudulent misrepresentation; misrepresentation: intentional deceit; misrepresentation: strict responsibility; misrepresentation: negligence; and conversion. According to the complaint, Spike paid the company $10,000 to destroy 13,617 cases of energy drink products, which had a value of about $900,000.
A federal court in Iowa has denied a motion seeking to preliminarily enjoin the Food and Drug Administration (FDA) from enforcing regulations prohibiting the interstate sale of raw milk. Farm-to-Consumer Legal Defense Fund v. Sebelius, No. 10-4018 (N.D. Iowa, decided January 23, 2012). The plaintiffs, who either produce or consume raw milk, filed their motion under the All Writs Act, claiming that FDA has taken enforcement actions against third parties in other jurisdictions while the plaintiffs’ lawsuit challenging the validity of the rules is pending and that such action usurps the court’s jurisdiction to decide whether the interstate sale of raw milk is legal. According to the court, “[t]he plaintiffs have not cited, and I have not found, any authority for the proposition that the first federal court to entertain a challenge to a federal regulation has the power to forestall enforcement of that regulation by a federal agency in other…
The Seventh Circuit Court of Appeals has turned aside a challenge to an Indiana law that prevents an alcoholic beverage retailer from shipping wine to its customers via motor carrier. Lebamoff Enters., Inc. v. Huskey, No. 11-1362 (7th Cir., decided January 17, 2012). The retailer claimed that the law was preempted by the Federal Aviation Administration Authorization Act of 1994 and that it violated the dormant Commerce Clause of the U.S. Constitution. Writing for the panel, Judge Richard Posner explained that the Twenty-First Amendment, which confers core powers on the states to regulate the sale of alcoholic beverages, places a thumb on the scale balancing state and federal interests. If the state interests are within those core powers, wrote Posner, there is a “‘strong presumption’ of validity.” According to the court, Indiana requires that drivers employed by liquor retailers be trained in the state’s alcohol laws and the recognition of…
A unanimous U.S. Supreme Court has determined that the Federal Meat Inspection Act (FMIA) and its regulations preempt a California law that required swine slaughterhouses to humanely euthanize nonambulatory animals and prohibited them from processing, butchering or selling the meat or products of nonambulatory animals for human consumption. Nat’l Meat Ass’n v. Harris, No. 10-224 (U.S., decided January 23, 2012). Details about the Ninth Circuit’s decision, which the Court reversed, appear in Issue 344 of this Update. Writing for the Court, Justice Elena Kagan stated that the FMIA includes an express preemption clause which “sweeps widely—and in so doing, blocks the applications of [the California law] challenged here. The clause prevents a State from imposing any additional or different even if nonconflicting—requirements that fall within the scope of the Act and concern a slaughterhouse’s facilities or operations. And at every turn [the California law] imposes additional or different requirements on…
