The Trademark Trial and Appeal Board (TTAB) has dismissed The Wonderful Co.'s opposition to Comrade Brewing Co.'s application to register "Superpower" as a mark used in relation to beer. Wonderful Co. v. Comrade Brewing Co., No. 91230877 (T.T.A.B., entered August 2, 2018). The Wonderful Co. uses its mark "Antioxidant Superpower" to describe its POM pomegranate juice, which it alleged will be sold in the same aisle as beer in some stores. TTAB was unpersuaded, finding that consumers are not likely to view fruit juices and beer as produced by a common source under one brand's mark. TTAB also found the term "antioxidant superpower" to be "somewhat suggestive of the identified goods, and thus conceptually is somewhat weaker than an arbitrary mark."
Category Archives U.S. Circuit Courts
Multiple consumers have reportedly filed lawsuits against Chipotle Mexican Grill following the distribution of allegedly contaminated food that purportedly resulted in more than 700 customers becoming ill. The cause of the illnesses is unknown, as E. coli, Salmonella, norovirus and shigella tests reportedly returned negative results. One plaintiff seeks $25,000 in damages for his medical treatment.
A Nevada federal court has dismissed JL Beverage Co.’s trademark-infringement allegations against Beam Inc.’s Pucker Vodka. JL Beverage Co. v. Beam Inc., No. 11-0417 (D. Nev., entered July 23, 2018). The 2011 complaint, which alleged that Beam Inc.’s mark featuring a drawing of lips infringed on JL Beverage’s lip-imprint mark, was revived by the Ninth Circuit in 2016. In addition to arguing against the alleged infringement, Beam Inc. filed a counterclaim asserting that JL Beverage’s trademark should be canceled. The court was unpersuaded by JL Beverage’s arguments about consumer associations with the lip illustration. “Consumers do not refer to Johnny Love Vodka as ‘the lip vodka,’” the court noted. “JL Beverage offered evidence at trial that consumers refer to Johnny Love Vodka as ‘the lip vodka,’ but the Court did not find this evidence credible.” Further, “Consumers exposed to JL Beverage’s logo and marketing materials during the sponsorship events probably…
The Pennsylvania Supreme Court has affirmed a lower court’s ruling upholding Philadelphia’s tax on sugar-sweetened beverages (SSBs), holding that the tax is not preempted by state law. Williams v. Philadelphia, Nos. 2 EAP 2018, 3 EAP 2018 (Pa., entered July 18, 2018). The 1.5-cents-per-ounce tax, which took effect in January 2017, applies to SSB distributors rather than buyers and thus does not duplicate consumer sales tax, the court held.
Three plaintiffs have filed a projected class action alleging Trader Joe’s Co.’s “100%” Manuka Honey contains about 60 percent manuka honey. Moore v. Trader Joe’s Co., No 18-4418 (N.D. Cal., Oakland Div., filed July 20, 2018). The consumers allege that they paid a premium for the honey, which purportedly provides antibacterial benefits, because the jars were labeled as containing “100%” manuka honey and listing manuka honey as the sole ingredient. The complaint asserts that the plaintiffs’ testing found that the product “only contains between 57.3% to 62.6% manuka honey,” with other types of honey allegedly filling the remainder. The plaintiffs seek damages, class certification and attorney’s fees for alleged violations of California’s, North Carolina’s and New York’s consumer-protection statutes.
Diamond Foods LLC faces a putative class action alleging Kettle Foods potato chips are marketed as “Made with Natural Ingredients” and “No Preservatives” but contain citric acid. Mason v. Diamond Foods LLC, No. 18-6423 (S.D.N.Y., filed July 16, 2018). The complaint identifies several flavors of chips that allegedly contain the “synthetic compound,” purportedly produced from mold strains and sulfuric acid. Claiming violations of several states' consumer-protection statutes, the Magnuson-Moss Warranty Act, breach of warranties and common law fraud, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.
International Dairy Queen Inc. faces a potential class action alleging it violated consumer-protection laws with a “bait-and-switch” scheme by advertising a free Blizzard without verifying that all store locations would honor the coupon. Spencer v. Int’l Dairy Queen, Inc., No. 18-1252 (D. Ore., filed July 13, 2018). The complaint alleges that the plaintiffs viewed an advertisement promising a "special treat for fans with our new mobile app," which displayed a coupon for a free small Blizzard, directed users to choose a store location and displayed a promotional code valid for 15 minutes. The complaint contends that hundreds of people posted online comments complaining that several locations refused to honor the coupons. Claiming violations of Oregon’s Unlawful Trade Practices Act and unjust enrichment, the plaintiff seeks damages, restitution, attorney’s fees and a judgment against Dairy Queen “for the monetary value of at least five Blizzards per class member.”
Promotion in Motion Inc., which produces Welch’s Fruit Snacks, has filed a lawsuit alleging that Kervan USA's packaging and product design for Sunkist Fruit Gummies infringe its trademarks and trade dress. Promotion in Motion Inc., v. Kervan USA LLC, No. 18-11670 (D.N.J., filed July 16, 2018). Although Sunkist Fruit Gummies have not been released, Kervan has publicly displayed the intended packaging at trade shows and online, Promotion in Motion alleges, and it asserts that the packaging “closely copies” the Welch's packaging by using similar design elements and color as well as the identical claim “Fruit is our 1st Ingredient.” Promotion in Motion also contends that Kervan imports and distributes a wedge-shaped sour watermelon candy under various product labels that violates the trade dress of its Sour Jacks, which is advertised with the slogan “Respect the Wedge” and an emphasis on the candy’s shape. Alleging trademark infringement, trade dress infringement, false designation of…
A consumer has filed a putative class action alleging that Florida’s Natural Orange Juice is not “natural” because it is “highly processed” and contains pesticide residues. Axon v. Citrus World Inc., No. 18-4162 (E.D.N.Y., filed July 20, 2018). The complaint alleges that Citrus Inc. markets Florida’s Natural with illustrations on the packaging of “green leaves and orange blossoms as well as fresh-sliced oranges with juice visibly dripping from the fruit,” which conveys to consumers that “the juice is in fact natural and similar in result if consumers had squeezed the oranges themselves.” For alleged violations of New York’s consumer-protection statutes, the plaintiff seeks class certification, damages, restitution and attorney’s fees.
A New York federal court has dismissed some allegations in a lawsuit alleging Whole Foods Market Group Inc. and Freshbev LLC mislabeled juice products but will allow three claims to proceed. Campbell v. Freshbev LLC, No. 16-7119 (E.D.N.Y., entered July 2, 2018). The plaintiff alleged that the companies mislabeled the juices as unpasteurized, cold-pressed and fresh and that Ripe Craft Juice 12.2 Northeast Blend Cranberry Apple contained more apple juice than cranberry in the blend. The court dismissed the allegation that the "cold-pressed" labels were misleading because the juices are subjected to high-pressure processing, finding that a "reasonable consumer would not mistake the cold-pressed claim to be a claim that pressure was never applied to the juice products." The court permitted three state-law claims related to the "fresh" labels, the "unpasteurized" label on cranberry juice, and the "Cranberry Apple" juice ingredients to continue but dismissed claims for injunctive relief and fraud.
