The company that makes Johnny Love Vodka® has filed a trademark infringement suit against the companies making “Pucker Vodka,” alleging that the lip imprint on the Pucker labels is likely to confuse consumers because of its similarity to the registered lip imprint on the plaintiff’s flavored-vodka bottles. JL Beverage Co., LLC v. Fortune Brands, Inc., No. 11-00417 (D. Nev., filed March 18, 2011). According to the complaint, JL Beverage Co. has used the Johnny Love Vodka mark, which incorporates a parted lip imprint as the “o” in the word “Love,” since 2004 and registered it in 2005. The lipstick color apparently varies depending on the vodka’s flavor. Alleging that the defendants recently began promoting and selling a line of flavored vodkas with a label incorporating a “nearly identical” parted lip imprint in varying colors, the plaintiff seeks injunctive relief, an order to recall and destroy all infringing products, an accounting, compensatory…
Category Archives U.S. Circuit Courts
A federal court in Massachusetts has certified a class of Starbucks’ employees alleging that the company’s policy of requiring tip-sharing by baristas and their supervisors violates state law; the court also granted the plaintiffs’ motion for summary judgment on that issue. Matamoros v. Starbucks Corp., No. 08-10772 (D. Mass., decided March 18, 2011). So ruling, the court rejected the defendant’s argument that “intractable intra-class conflict” precludes certification. According to the court, “an interest by certain putative class members in maintaining the allegedly unlawful policy is not a reason to deny class certification. Indeed, were the Court to hold otherwise, an employer could readily insulate itself from class liability simply by establishing a communal ‘tip pool’ for both managerial and non-managerial employees. Such an ‘end run’ clearly contravenes the purpose of the Tips law.”
A federal court in Virginia has issued an order dismissing without prejudice claims filed against two insurers by a company that makes baby formula; the parties stipulated to the dismissal after similar litigation concluded with a defense verdict following trial in state court. PBM Nutritionals, LLC v. Arch Ins. Co., No. 09-194 (E.D. Va., order entered March 23, 2011). The matter reportedly involves the failure of a hot-water supply system that leached melamine and other filtration materials into eight days’ worth of formula production, contaminating $6 million in baby formula. The manufacturer has apparently recovered $2 million under a contamination policy issued by one of its insurers, but lost its bid to recover under other policies that contained “perils excluded” clauses and pollution/contamination endorsements. The perils-excluded clauses deny coverage for damages resulting from a pollutant discharge unless the discharge is caused by a “peril” insured against. The insurers relied on contamination endorsements that…
The Center for Food Safety, Earthjustice and a number of other public interest groups have sued the U.S. Department of Agriculture (USDA), challenging its decision to deregulate genetically engineered (GE) alfalfa. Ctr. for Food Safety v. Vilsack, No. 11-1310 (N.D. Cal., filed March 18, 2011). Other plaintiffs include the Cornucopia Institute, Geertson Seed Farms, which successfully challenged a previous agency decision to deregulate GE alfalfa, the Sierra Club, and organizations representing the interests of organic and family farmers. The complaint alleges that the environmental impact statement (EIS) that USDA’s Animal and Plant Health Inspection Service (APHIS) prepared to support its deregulation decision violates the National Environmental Policy Act (NEPA), Plant Protection Act (PPA) and Administrative Procedure Act. The plaintiffs note that the court-ordered EIS “is the first (and only) EIS APHIS has ever completed for any GE crop, in over fifteen years of approving GE crops for commercial use.” Seeking…
A group calling itself “The Ethereal Enigmatic Euphoric Movement Towards Civilized Hedonism, Ltd.” has sued Idaho in federal court, alleging that a state law allowing cities to “prohibit the sale of distilled spirits” violates members’ fundamental right to practice their religion. The Ethereal Enigmatic Euphoric Movement Towards Civilized Hedonism, Ltd. v. Idaho, No. 11-00097 (D. Idaho, E. Div., filed March 11, 2011). According to the complaint, the city of Preston in Franklin County has relied on the state law to forbid the sale of liquor by the drink. The plaintiff contends that this happened because more than 80 percent of local voters belong to The Church of Christ of the Latter Day Saints, whose members allegedly “believe that drinking alcoholic beverages is a mortal sin.” The plaintiff alleges that these voters “are allowed to force their morality on those of us who don’t believe in their religion,” and that, in fact,…
Five Hispanic farmers have filed a putative class action in a D.C. district court against the U.S. Department of Agriculture (USDA), to seek “redress from Defendants’ unconstitutional treatment in the proposed settlement of discrimination claims by these Hispanic Plaintiffs . . . as compared to the manner in which Defendants have settled identical discrimination claims by similarly situated African-American and Native American claimants, . . . all of whom were undeniably discriminated against in like manner by [USDA] in the administration of its farm credit and non-credit farm benefit programs.” Cantu v. United States, No. 11-00541 (D.D.C., filed March 15, 2011). According to the complaint, the government has paid African-American farmers about $1 billion in settlement benefits, and legislation signed into law in December 2010 provides an additional $1.25 billion to settle African-American farmers’ claims. Native American farmers were purportedly offered $680 million in compensation and $80 million in debt…
A federal court in California recently dismissed with prejudice a claim against a school district and some of its personnel filed by the parents of a child with an allergy to nuts; they alleged that the defendants threatened harm to the child by refusing to keep him in a nut free environment, which threat was undertaken to discourage the parents from exercising a legal right, i.e., requesting accommodations for him, in violation of state law. McCue v. S. Fork Union Elementary Sch., No. 10-00233 (E.D. Cal., decided February 7, 2011). The parents also alleged harm from an unspecified person giving the child a peanut butter cookie. Because the third amended complaint did not allege all of the facts needed to state a claim under the law and because “[s]erving a child a peanut butter cookie is not an inherently violent act,” the court concluded that the complaint did not allege…
A California court has issued a statement of decision in support of its July 2010 oral ruling vacating a judgment in favor of plaintiffs who alleged they had been rendered sterile from chemicals used on Nicaraguan banana plantations. Tellez v. Dole Food Co., Inc., No. BC 312852 (Cal. Super. Ct., Los Angeles Cty., statement filed March 11, 2011). According to the court, the plaintiffs’ attorneys “coached their clients to lie about working on banana farms, forged work certificates to create the appearance that their clients had worked on Dole contracted farms, and faked lab results to create the impression that their clients were sterile.” The court also stated that the attorneys “tampered with witnesses,” “threatened witnesses and took other actions to carry out the fraud.” The court held more than 20 hearings, presiding over a year-long evidentiary process, and “reviewed the sworn testimony of 27 protected witnesses describing the fraud at…
A federal court in California has dismissed as preempted state-law claims that Smart Balance falsely labeled and advertised its Nucoa® margarine product; the court also denied the plaintiff’s motion to certify a class. Yumul v. Smart Balance, Inc., No. 10-00927 (C.D. Cal., order entered March 14, 2011). Additional information about the complaint, which has twice been amended after previous rulings on motions to dismiss, appears in Issue 359 of this Update. The defendant argued in its response to the plaintiff’s motion for class certification that the claims were preempted by federal law and thus could not be certified. The plaintiff argued that the defendant had waived this defense by not asserting it in its previous motions to dismiss. According to the court, the defendant did not waive the defense, because it had been preserved in the company’s answer and because the company “is entitled to raise the defense any time prior…
A California resident has filed a putative class action against the companies that make, distribute and sell Four Loko®, a 6- to 12-percent alcoholic beverage with caffeine. Richardson v. Phusion Projects, LLC, No. 11-0456 (S.D. Cal., filed March 4, 2011). The plaintiff alleges that she purchased Four Loko Fruit Punch at $3 per can based on its advertising and labeling, which purportedly failed to warn her “of the particular dangers of drinking a caffeinated beverage with high alcoholic content.” She alleges that she was misled into purchasing a dangerous beverage and claims “injury in fact and a loss of money or property in that she has been deprived of the benefit of her bargain and has spent money purchasing Four Loko at a price premium when it actually had significantly less value than was reflected in the price she paid for it.” The complaint alleges unfair competition, false advertising, violation…
