Texas chain Torchy’s Tacos, which uses the tagline “Damn Good Tacos” in its restaurants and merchandising, has filed suit against Colorado restaurant Dam Good Tacos for trademark infringement, claiming consumer confusion. Success Foods Mgmt. Group, LLC v. Dam Good Systems, LLC, No. 170842 (D. Colo., filed April 5, 2017). Asserting that it registered the “Damn Good Tacos” trademark in 2008, Torchy’s alleges federal trademark infringement, unfair competition, and violation of the Colorado Consumer Protection Act, and it seeks injunctive relief, damages and destruction of Dam Good Tacos’ infringing URLs, email addresses and all packaging, promotional and advertising materials. Issue 631
Category Archives U.S. Circuit Courts
The Irish distributor of Kerrygold butter won an emergency restraining order against a Wisconsin creamery after alleging the creamery backed out of an agreement to process Kerrygold locally and later created its own nearly identical product, “Irishgold,” infringing Kerrygold’s trademark. Ornua Foods N. Am., Inc. v. Eurogold USA LLC, No. 170510 (E.D. Wis., filed April 10, 2017). A Wisconsin federal court granted the order after finding Ornua Foods, Kellygold’s maker, likely to win the trademark case it filed on the merits. After Kerrygold became the top-selling imported butter in the United States, Wisconsin removed Kerrygold butter from stores under a statute requiring all butter sold in the state to bear either a Wisconsin or federal grade mark. After the ban, Ornua Foods began working with Wisconsin state officials and defendant Old World Creamery to process the Irish-made butter a second time, making it eligible for a state grade mark. The…
A consumer has filed a projected class action alleging Asahi Beer U.S.A., Inc. misleads customers into believing that Asahi Super Dry beer is made in Japan despite being produced in Canada. Panvini v. Asahi Beer U.S.A., Inc., No. 17-1896 (N.D. Cal., filed April 5, 2017). The plaintiff claims that although most of the Asahi Dry beer sold worldwide is brewed in and exported from Japan, the product sold in the United States is made in Toronto, Canada. The complaint alleges that Asahi misleads consumers by using Japanese lettering on labels and packaging and by describing it as the “most popular high-quality beer in Japan.” Claiming violations of California’s consumer-protection statutes, the plaintiff seeks injunctive and equitable relief, restitution, damages and attorney’s fees. Issue 631
The Trademark Trial and Appeal Board (TTAB) has affirmed a refusal by the U.S. Patent and Trademark Office (USPTO) to register a trademark for La Finca wines on the grounds that the winemaker failed to show evidence that the brand has acquired distinctiveness. In re Finca La Celia, S.A., No. 86130560 (opinion issued March 31, 2017). Argentina-based winemaker Finca La Celia, which sells its La Finca wines in Trader Joe’s stores, applied for registration of the mark in 2013 and appealed after a second reconsideration was denied. TTAB reversed USPTO’s refusal to register the mark on the ground that it was generic, holding that even though the term “la finca,” which means “the estate” in Spanish, is “merely descriptive,” the term is “not perceived by the relevant public as a generic name for a type of wine.” TTAB affirmed the USPTO ruling that the maker had failed to show La…
A federal court in California has given preliminary approval to a proposed $8.25-million settlement of a class action claiming that kombucha tea products manufactured by Millennium Products, Inc. and sold at Whole Foods were mislabeled. Retta v. Millennium Products, No. 15-1801 (C.D. Cal., order entered January 31, 2017). The plaintiffs claimed that the kombucha labels (i) used the term “antioxidant” when the product contained none; (ii) used the term “non-alcoholic” when the fermented tea product allegedly contained alcohol in excess of the amount permitted for nonalcoholic beverages; and (iii) understated the amount of sugar in the product. In its order, the court granted class certification and approved monetary and injunctive relief, including Millennium’s agreements to (i) add warning labels that the product contains alcohol and must be refrigerated because it is under pressure; (ii) conduct regular sample testing to ensure the accuracy of the products’ sugar content; and (iii) adopt…
Wise Foods, Inc. is facing a projected class action claiming the company’s potato chip bags have more than double the amount of slack fill as its major competitors’ bags. Alce v. Wise Foods, Inc., No. 17-2402 (S.D.N.Y., filed April 3, 2017). The plaintiffs claim that bags of 21 varieties of Wise’s Potato Chips, Kettle Cooked Potato Chips and Ridgies can contain as much as 67 percent slack fill, while the company’s own Dipsy Doodles Corn Chips contain only about one-third slack fill. For alleged violations of New York’s Deceptive and Unfair Trade Practices Act, false advertising laws, the District of Columbia’s Consumer Protection Procedures Act and unjust enrichment, the plaintiffs seek class certification, an injunction, damages and attorney’s fees. Issue 630
The owner of one of the largest commercial fishing businesses in the United States has pleaded guilty to conspiracy, falsifying federal records, cash smuggling and tax evasion in a case accusing him of deliberately misreporting the types of fish he caught to the National Oceanic and Atmospheric Administration (NOAA). U.S. v. Rafael, No. 16-10124 (D. Mass, plea entered March 30, 2017). Carlos Rafael, owner of Carlos Seafood, Inc. and known as the “Codfather,” will face possible forfeiture of his business assets and up to five years in prison at his June 2017 sentencing. An Internal Revenue Service (IRS) investigation apparently found that Rafael caught 800,000 pounds of fish over several years and reported it as haddock, pollock or other species with high NOAA quotas despite containing thousands of pounds of fish with lower quotas, including cod, flounder, grey sole, yellowtail and American plaice. Rafael also told IRS agents posing as…
A Las Vegas restaurant called the Heart Attack Grill has filed suit against a Tennessee restaurant calling itself the Heart Attack Shack, claiming trademark infringement. HAG IP, LLC v. Tipps Enterprises Inc., No. 17-0652, (M.D. Ky., filed March 29, 2017). The Las Vegas restaurant, which claims trademarks on its Single, Double, Triple and Quadruple Bypass burgers and Flatliner Fries, alleges that the Tennessee restaurant, which features burgers, wings and “Flatliner XL” fries, has infringed its trademarks. In a February 2017 article in the Chattanooga Times Free Press, the defendant owner claimed he named his restaurant after a “heart attack” burger on the menu of a restaurant that previously occupied his location. For trademark infringement of registered marks, the plaintiff seeks injunctive relief, accounting, damages, attorney’s fees and destruction of all promotional materials bearing the trademarks. In 2012, after the plaintiff sent a cease and desist letter to New York’s Second…
A jury has unanimously found Elements Spirits Inc. and its founder liable for trade dress infringement of Globefill Inc.'s Crystal Head, a vodka created by actor Dan Aykroyd and sold in a skull-shaped container. Globefill Inc. v. Elements Spirits Inc., No. 10-2034 (C.D. Cal., verdict entered March 29, 2017). Just before the case went to jury deliberation, Globefill called a final rebuttal witness, a sculptor who testified that the founder of Elements Spirits asked him in 2009 to create a mold of the Crystal Head skull bottle that served as the base for Elements Spirits' Kah tequila bottles. After four hours of deliberation, the jury concluded the three-week trial with a verdict for Globefill. See Law360, March 29, 2017. Issue 629
Chipotle Mexican Grill Inc. won decertification of a class action comprising more than 500 management trainees in 37 states when a federal court ruled that there were too many differences in the trainees’ ability to perform managerial duties, causing the action to fail the predominance test. Scott v. Chipotle Mexican Grill Inc., No. 12-8333, (S.D.N.Y., order entered March 29, 2017). Seven named plaintiffs won conditional class certification in June 2013, after which 516 additional plaintiffs opted in. The plaintiffs, who worked as “apprentices,” were temporary workers training for positions as restaurant general managers. The complaint alleged apprentices were classified as exempt and illegally denied overtime even if they spent most of their time on nonmanagerial tasks such as preparing food or serving customers, violating the Fair Labor Standards Act (FLSA) and state labor laws. However, the court found that the plaintiffs’ testimony contained too much conflicting information about the apprentices’…
