Turner Entertainment Co. has filed an opposition to Sligo Mill Brewing Co.'s application to trademark "Surrender Dorothy," arguing that consumers will be misled into believing that the brewery is associated with "The Wizard of Oz." Turner Entm't Co. v. Sligo Mill Brewing Co., Opp. No. 91244715 (U.S.P.T.O., filed November 13, 2018). Turner, which owns trademark rights on several iterations of "Dorothy," asserts that "the well-known phrase 'Surrender Dorothy'" was "written in the sky by the Wicked Witch of the West and is one of the most memorable scenes in The Wizard of Oz." Turner alleges that Sligo Mill "attempted to mislead consumers into believing its mark is licensed, approved, or sponsored by or otherwise affiliated with" Turner and "The Wizard of Oz" by naming its beer after the movie scene and featuring an image of a yellow-brick road on its label. The entertainment company urges the U.S. Patent and Trademark…
Category Archives U.S. Circuit Courts
A D.C. court has dismissed a lawsuit challenging Deoleo USA Inc.'s "extra virgin" olive oil, finding that the plaintiff failed to state a claim. Fahey v. Deoleo USA Inc., No. 18-2047 (D.D.C., entered November 8, 2018). Deoleo settled a similar lawsuit in March 2018, and the plaintiff "apparently caught wind of this news," the court noted. "Six days after the settlement was publicized, he purchased a bottle of Bertolli EVOO … [and] filed suit some six weeks later." The court did not consider whether the plaintiff was bound by the terms of the settlement because it first found that the plaintiff failed to plead facts that could give rise to a right of relief. The plaintiff "marshals but one 'fact' to substantiate his claim that this defendant deceptively mislabeled the bottle of extra virgin olive [oil that the plaintiff] purchased in 2018: the results of a 2010 study on olive…
A consumer has filed a putative class action alleging that Vivaloe beverages are misleadingly marketed as naturally flavored because they contain malic acid. Anderson v. Outernational Brands Inc., No. 18-2550 (S.D. Cal., filed November 6, 2018). The complaint asserts that malic acid is "an inexpensive synthetic chemical used in processed food products to make the products taste like tangy fresh fruits" that "is not naturally-occurring but is in fact manufactured in petrochemical plants from benzene or butane—components of gasoline and lighter fluid, respectively—through a series of chemical reactions, some of which involve highly toxic chemical precursors and byproducts." The plaintiff admits that malic acid is generally recognized as safe for use as flavorings but argues that the d-malic form of malic acid "has never been extensively studied for its health effects in human beings." The plaintiff alleges violations of California consumer-protection statutes and seeks class certification, damages, attorney's fees and…
A California federal court has granted partial summary judgment in a class action alleging Keurig Dr Pepper falsely marketed Canada Dry as "Made from Real Ginger." Fitzhenry-Russell v. Keurig Dr Pepper Inc., No. 17-0564 (N.D. Cal., entered November 2, 2018). The court considered the results of multiple consumer surveys aiming to determine whether a reasonable consumer would interpret "Made from Real Ginger" as describing a product that is made from ginger root or a product that is made from ginger oleoresin, a flavoring made from ginger root. The surveys determined that some respondents were confused about the source of the ginger flavor based on Canada Dry's marketing. Finding that an issue of material fact remains, the court denied the motion for summary judgment on that claim. The court then turned to allegations about whether Dr Pepper misled consumers about the levels of ginger in the product. "The label makes no…
A consumer asserts that Miyoko's Kitchen Inc.'s "vegan butter" misleads consumers into believing the product is "a 'form' of butter" despite lacking "any milk or dairy ingredients and the functional, nutritional, sensory and organoleptic attributes which consumers associate with butter." Brown v. Miyoko's Kitchen Inc., No. 18-6079 (E.D.N.Y., filed October 30, 2018). The products "bask in dairy's 'halo' by using familiar terms to invoke positive traits—including the significant levels of various nutrients typically associated with real dairy foods," the complaint alleges. The plaintiff argues that consumers "prefer butter over its imitators" because of its "unique and unduplicated taste," "mouthfeel" and "ability to enhance the texture of and other qualities of (mashed) potato products." "The plant-based Product is not butter because it is derived from coconut (lauric) oil and nut ingredients, among others, and lacks any fat derived from cow's milk," the plaintiff argues. The product meets U.S. Food and Drug…
A consumer has alleged that Iberia Foods misleads consumers by substituting giant squid for octopus in three of its octopus products. Zapata Fonseca v. Iberia Foods Corp., No. 18-6279 (E.D.N.Y., filed November 5, 2018). The plaintiff's putative class action asserts that Iberia and its supplier, Orbe, either knew or should have known that the products were not octopus, which the plaintiff purportedly discovered through third-party DNA testing. "Squid is significantly cheaper and of a lower quality than octopus," the complaint argues. "In fact, the squid undergoes a chemical treatment in order to make it more similar to octopus in its texture. This process also eliminates a very characteristic taste of the dosidicus gigas with chemical substances to obtain a neutral flavor. Additional testing has revealed that this bait-and-switch, and active concealment, is occurring throughout the Orbe Cross-Brand Octopus Products as well." For alleged violations of New York consumer-protection statutes and…
A consumer has filed a putative class action alleging that Mott's Applesauce and Apple Juice products are mislabeled as "natural" because they contain traces of an insecticide. Yu v. Dr Pepper Snapple Grp. Inc., No. 18-6664 (N.D. Cal., San Jose Div., filed November 1, 2018). The plaintiff alleges that reasonable consumers would not expect to find acetamiprid, a synthetic chemical, in a product labeled as "natural." The complaint echoes a similar lawsuit filed by Beyond Pesticides in May 2017; an amended complaint in that lawsuit was filed in October 2018.
Kervan USA has agreed to change the packaging of its Sunkist fruit snacks and the shape of its candy following a lawsuit filed by Promotion in Motion Inc., which produces Welch's fruit snacks. Promotion in Motion Inc. v. Kervan USA LLC, No. 18-11670 (D.N.J., entered November 6, 2018). Kervan will change the background color of the packages for its fruit snacks to avoid confusion with packages of Welch's fruit snacks, and it will change the shape of its watermelon candies to avoid the use of the "distinctive three-dimensional trapezoid shape" of Promotion in Motion's Sour Jacks. Kervan will also sell off its existing supply of allegedly infringing products and destroy any remaining units after 90 days.
A California federal court has refused to dismiss a putative class action alleging Ocean Spray Cranberries Inc. misled consumers by marketing its products as free from artificial flavors despite containing malic acid. Hilsley v. Ocean Spray Cranberries Inc., No. 17-2335 (S.D. Cal., entered October 30, 2018). Ocean Spray moved to dismiss the allegations, arguing that "malic and fumaric acids do not function as flavors in their juice products but instead are acidulants used to control the pH and titratable acid levels in their juices." Ocean Spray presented testimony from its vice president of research, development, quality and engineering, who asserted that changing the amount of malic and fumaric acids in the product would not change the flavor but may "create a perceptible difference in mouth feel of the product." The plaintiff's expert, a food scientist, argued that the "small quantity of synthetic malic acid in the Cran-Apple juice drink" would…
Two consumers have filed a putative class action alleging that Kraft Heinz Food Co. misleads consumers by marketing Capri Sun beverages as free of preservatives despite containing citric acid. Tarzian v. Kraft Heinz Food Co., No. 18-7148 (N.D. Ill., E. Div., filed October 25, 2018). "Citric acid serves as a preservative by functioning as an acidity regulator and acidulant," the complaint alleges. "[W]hile citric acid can also be employed to impart taste, a greater quantity of it is required to impart taste than to preserve foods and beverages. The preservative effects of citric acid may be reduced at lower levels, but it will still be present. [] Thus, Defendant cannot argue that it includes citric acid in the Products merely to impart added taste, because the quantities required to impart taste are more than sufficient to function as preservatives." For alleged violations of Illinois and New York consumer-protection statutes, the…
