A Kentucky federal court has granted a motion to dismiss an action against the owner of Duck Dynasty trademarks alleging infringement based on jurisdictional issues. Chinook USA v. Duck Commander, Inc., No. 14-1015 (W.D. Ky., Louisville Div., order entered January 8, 2015). In 2014, Duck Commander licensed the rights to several trademarks related to Duck Dynasty, including “Duck Commander Family Foods,” “Uncle Si” and “Si Robertson,” to Chinook for use on several types of beverages. Chinook later learned that Duck Commander also licensed the same rights to other companies, including Go-Time and Checkered Flag Business. Chinook sued, arguing that it held exclusive rights to the use of the trademarks on beverages. In “colorful” filings recounting “Bill Russell’s collegiate basketball career, the Scottish jurist and poet Sir Walter Scott’s Marmion, and Jackie Gleason’s role in an short-lived television series from the late 1940s,” Chinook argued that Duck Commander and the beverage…
Category Archives U.S. Circuit Courts
The U.S. Court of Appeals for the Second Circuit has affirmed a lower court’s dismissal of a lawsuit against Kellogg Co. alleging the company owed a man compensation after it implemented an idea for a portable breakfast the man had submitted through the company’s online portal for innovative ideas. Wilson v. Kellogg Co., No. 15-2237 (2nd Cir., order entered January 13, 2016). The man submitted an idea for a beverage flavored like cereal milk, but Kellogg apparently told him it was not interested in pursuing the idea. The company later obtained a trademark for “Kellogg’s Breakfast to Go” and began selling a similar product under the name in 2013. The man sought compensation for the idea, but Kellogg argued that the terms and conditions the man had agreed to upon submission limited his ability to recover any money for a successful submission. The Second Circuit agreed, finding that the terms…
A New York federal court has denied Fifth Generation, Inc.’s motion to dismiss a lawsuit arguing that its Tito’s Handmade Vodka® is falsely advertised as handmade because machines are used in the process of manufacturing the product. Singleton v. Fifth Generation, Inc., No. 15-0474 (N.D.N.Y., order entered January 12, 2016). The court rejected the company’s claim that its adherence to U.S. Alcohol and Tobacco Tax and Trade Bureau standards does not relieve it from liability for false advertising claims. Further, the court found that “Tito’s labels could plausibly mislead a reasonable consumer to believe that its vodka is made in a hands-on, small-batch process, when it is allegedly mass-produced in a highly-automated one.” Accordingly, the court allowed several claims to continue, but dismissed allegations of breach of express warranties and negligent misrepresentation. The decision echoes a November 2015 ruling from a California federal court, which also refused to find that the safe harbor provision excused Fifth Generation from liability. Hofmann v. Fifth…
A California federal court has allowed plaintiffs in a false advertising putative class action to dismiss their claims of fraud based on the “extra virgin” quality of Filippo Berio olive oil in favor of pursuing their allegations that the products are falsely labeled as “made in Italy.” Kumar v. Salov N. Am. Corp., No. 14-2411 (N.D. Cal., Oakland Div., order entered January 8, 2016). The plaintiff sought to dismiss the “extra virgin” portion of the claims after the discovery process revealed the olive oil was sold in both clear-glass bottles—which the plaintiff asserted could damage the quality of the oil because of the light allowed through the glass—and tinted-glass bottles. Additional details about the claims’ survival of a motion to dismiss appear in Issue 554 of this Update. In February 2015, Shook Partner Ann Havelka authored an article for Law360 examining the case, arguing that it is “an example of…
A plaintiff has filed two similar lawsuits against H.J. Heinz Co. and Rockstar, Inc. alleging the companies’ products wrongfully bear “Made in the USA” label claims because they contain “foreign ingredients.” Alaei v. Rockstar, Inc., No. 15-2959 (S.D. Cal., filed December 31, 2015); Alaei v. H.J. Heinz Co., No. 15-2961 (S.D. Cal., filed December 31, 2015). Heinz 57® sauce, one complaint argues, is misrepresented as manufactured in the United States because some of its ingredients, including “turmeric, tamarind extract, and jalapenos, among other ingredients,” are “not from the United States.” Similarly, Rockstar’s Sugar Free beverage, described as “Made in the USA” on the label, contains “various amounts of taurine, guarana seed extract, and milk thistle extract, which, among other ingredients in Defendants’ products, are not from the United States.” These foreign ingredients, the complaint argues, are problematic because they are not subject to the same strict regulatory requirements and “are…
A consumer has filed a proposed class action against Trader Joe’s Co. alleging the company sells 5-ounce cans of store-brand tuna filled with only 3 ounces of product. Magier v. Trader Joe’s Co., No. 16-0043 (S.D.N.Y., filed January 5, 2016). According to the complaint, “Independent testing by the U.S. National Oceanic and Atmospheric Administration (NOAA) determined that, over a sample of 24 cans, 5-ounce cans of Trader Joe’s Albacore Tuna in Water Salt Added contain an average of only 2.61 ounces of pressed cake tuna when measured precisely according to the methods specified by [the federal statute].” The complaint further alleges similar NOAA test results for six other Trader Joe’s tuna products, amounting to breach of warranties, unjust enrichment, negligent misrepresentation, fraud and violations of New York’s consumer-protection statute. The plaintiff seeks class certification, declaratory judgment, compensatory and punitive damages, an injunction, attorney’s fees and a jury trial. Issue…
The nonprofit advocacy group Physicians Committee for Responsible Medicine (PCRM) has brought suit in the U.S. District Court for the Northern District of California seeking to prevent the U.S. Departments of Agriculture (USDA) and Health and Human Services (HHS) from adopting a recommendation of the 2015 Dietary Guidelines Advisory Committee (DGAC). The DGAC is a joint committee formed by USDA and HHS that recommended the agencies drop from the newly issued 2015-2020 Dietary Guidelines for Americans the advice that healthy individuals limit their daily dietary cholesterol consumption to 300 milligrams per day. PCRM seeks to permanently enjoin the agencies from incorporating the recommendation into the guidelines and to instead maintain current recommended daily limits. The complaint alleges the data underlying the DGAC’s recommendation is not “fairly balanced” within the meaning of the Federal Advisory Committee Act because it omits evidence unfavorable to the egg industry. Rather, PCRM contends that the DGAC…
The U.S. Court of Appeals for the Second Circuit has ruled that a Russian state-owned company can sue U.S. distributors of Stolichnaya vodka in a dispute over which entity inherited the brand after the Soviet Union collapsed—the Russian Federation or private companies successive to the company that sold the product before the dissolution. Fed. Treasury Enter. Sojuzplodoimport v. Spirits Intl. BV, No. 14-4721 (2nd Cir., order entered January 5, 2016). A lower court previously held that the Russian Federation’s Federal Treasury Enterprise Sojuzplodoimport (FTE) did not have standing to sue, but the appeals court disagreed. “The declaration of a United States court that the executive branch of the Russian government violated its own law by transferring its own rights to its own quasi-governmental entity (FTE) would be an affront to the government of a foreign sovereign,” the appeals court held. “Even an inquiry into whether Russian law permitted the Assignment…
A California federal court has refused to certify the proposed class in a case alleging Yakult U.S.A., Inc. mislabels its probiotic yogurt drinks as providing nonexistent health benefits. Torrent v. Yakult U.S.A., Inc., No. 15-0124 (C.D. Cal., order entered January 5, 2016). The plaintiff argued that “Yakult fails to actually confer any health benefit and that there is no credible scientific evidence that the probiotics in the beverage do what Yakult claims,” and he sought to enjoin Yakult from continuing to sell the product with its allegedly false labeling. The court found that the plaintiff lacked standing to seek injunctive relief because he did not intend to buy Yakult’s product again. “Owing to his lack of standing to pursue injunctive relief,” the court said, “he has failed to provide a sound rationale for class certification under either [certification standard].” Further, “even if it were possible for [the plaintiff] to obtain…
The U.S. Court of Appeals for the Second Circuit had upheld the conviction of a man who sold $20 million worth of counterfeit wine by mixing lower-priced wines and pouring them into the bottles of more expensive wines. USA v. Kurniawan, No. 14-2928 (2nd Cir., order entered December 22, 2015). The man challenged the search of his home on Fourth Amendment grounds, arguing that the evidence police found should have been inadmissible. The appeals court disagreed, finding that although the warrantless protective sweep had been illegal, the police affidavit provided enough additional evidence beyond what was found during the protective sweep to support issuing the warrant. Accordingly, the court affirmed a lower court’s judgment that the man must serve 10 years in prison and pay $28 million in restitution along with $20 million in forfeiture. Issue 589
