Gosling Brothers Ltd. has filed a complaint against Pernod Ricard USA, maker of Malibu Island Spiced Rum®, alleging that a recipe on the Malibu website violates Gosling’s “Dark ‘N Stormy” trademarks. Gosling Bros. Ltd. v. Pernod Ricard USA, No. 15-13360 (D. Mass., filed September 15, 2015). Gosling holds five trademarks for “Dark ‘N Stormy” in the categories of wine and spirits, bar services and clothing to protect a cocktail recipe and a premixed cocktail drink composed of Gosling’s Black Seal Rum and ginger beer. The Malibu website, the complaint alleges, offers a recipe for a “Dark N’ Stormy” drink composed of Malibu Island Spiced Rum®, ginger beer, bitters and a lime wedge along with a video instructing how to make the cocktail. The complaint further alleges that a similar recipe for a “Black Stormy” cocktail uses similar ingredients but replaces the Malibu Island Spiced Rum® with Malibu Black Rum®. Gosling…
Category Archives U.S. Circuit Courts
A California state court has approved the settlement agreement in a lawsuit brought by the Center for Environmental Health (CEH) alleging that PepsiCo Inc. products contain levels of 4-methylimidazole (4-MEI) that exceed the limits imposed by the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). Ctr. for Envtl. Health v. Pepsi Beverages Co., No. 14711020 (Cal. Super. Ct., order entered September 17, 2015). Under the settlement agreement, PepsiCo will pay $385,000 and must ensure by January 1, 2016, that its soft drinks sold in California contain levels of 4-MEI within the safe harbor limits set by Prop. 65. CEH initially filed a notice of violation with the California Office of the Attorney General in January 2012; details appear in Issue 427 of this Update. Meanwhile, the parties to a proposed class action alleging similar facts have agreed to stay the case until December 14, 2015, pending…
Stewart Parnell, former chief executive of Peanut Corp. of America (PCA), has been sentenced to 28 years in prison following a conviction on federal conspiracy and fraud charges for his part in a Salmonella outbreak that killed nine people and sickened more than 700. U.S. v. Parnell, No. 13-cr-0012 (M.D. Ga., Albany Div., order entered September 21, 2015). “Americans should be able to trust that the food we buy for ourselves and our families is safe,” said Acting Associate Attorney General Stuart Delery in a September 21, 2015, press release. “The sentences handed down today to officials associated with the Peanut Corporation of America demonstrate the consequences for those whose criminal actions threaten that trust by introducing contaminated food into the marketplace. Our prosecution is just one more example of the forceful actions that the Department of Justice, with its agency partners, takes against any individual or company who compromises…
A California woman has filed a putative class action against Chipotle Mexican Grill Inc. alleging that, despite advertised claims to the contrary, the company’s restaurants do not serve food free of genetically modified organisms (GMOs). Gallagher v. Chipotle Mexican Grill Inc., No. 15-3952 (N.D. Cal., filed August 26, 2015). The complaint asserts that although the company advertised in April 2015 that it would remove GMOs from its food, “Chipotle serves meat products that come from animals which feed on GMOs, including corn and soy. Chipotle’s tacos and burritos are also usually served with sour cream and cheese from dairy farms that feed animals with GMOs.” In addition, Chipotle sells soft drinks made with GMO corn syrup, the complaint notes. Colleen Gallagher seeks to represent a California class to obtain damages and an injunction for alleged violations of the state’s consumer protection statutes. Chipotle became the first fast-casual chain to disclose…
The Center for Food Safety (CFS) has filed a lawsuit against the U.S. Department of Agriculture’s (USDA’s) Animal and Plant Health Inspection Service (APHIS) alleging that the agency has routinely failed to respond to Freedom of Information Act (FOIA) requests for records related to genetically engineered (GE) crops. Ctr. for Food Safety v. Animal & Plant Health Inspection Serv., No. 15-1377 (D.D.C., filed August 25, 2015). CFS asserts that APHIS has unlawfully delayed its responses to at least 29 FOIA requests or appeals related to its decision to withdraw proposed regulations that would update existing management of GE crops. “APHIS has a track record of irresponsible and inadequate regulation of GE crops,” CFS Staff Attorney Cristina Stella said in an August 25, 2015, press release. “In the absence of thorough government oversight, public access to information about these crops becomes all the more critical. This lawsuit is necessary to stop…
A California federal court has determined that Safeway is liable for $30 million in damages for claims alleging that the company charged different prices for products sold online despite a contractual agreement that in-store and online prices would be the same. Rodman v. Safeway Inc., No. 11-3003 (N.D. Cal., order entered August 31, 2015). The court granted partial summary judgment to the plaintiffs in December 2014, finding that Safeway breached the contract. Details about the decision appear in Issue 549 of this Update. The court arrived at the damages amount by calculating the sum that Safeway earned from the concealed markup between April 2010 and December 2012. The court also rejected the plaintiffs’ attempt to expand the class to include purchases before 2006, when Safeway switched from paying a third party to manage online sales to running the website in-house. Issue 578
Video publisher The Criterion Collection has filed a trademark dilution suit against Whole Foods and an alcohol supplier alleging that a line of wines introduced in June 2015 infringed on its name. The Criterion Collection v. Whole Foods Mkt., No. 15-7132 (S.D.N.Y., filed September 10, 2015). The Criterion Collection has licensed and published classic films with additional “value added” content since 1984, beginning with Citizen Kane. “To the consuming public, ‘The Criterion Collection’ has become, over time, broadly associated with technical excellence, artistic value and cultural importance,” the complaint asserts. In 2015, Whole Foods and Winery Exchange, Inc. began selling “Criterion Collection” wine purported to be hand-selected by the grocery chain’s master sommelier, Devon Broglie. The Criterion Collection alleges that this use infringes its trademark under the Lanham Act and New York law and seeks a permanent injunction and damages. Issue 578
Deep Ellum Brewing Co. has filed a lawsuit against the Texas Alcoholic Beverage Commission challenging the constitutionality of Texas Alcohol Beverage Code provisions forbidding brewers from selling their alcohol products on-site for off-premises consumption. Deep Ellum Brewing Co. v. Tex. Alcoholic Beverage Comm’n, No. 15-0821 (W.D. Tex., filed September 14, 2015). Dubbing the campaign “Operation Six Pack To Go,” the brewery argues that distilleries, wineries and brewpubs can sell their products in to-go packaging but breweries cannot, resulting in an unconstitutional distinction in the law. Texas alcohol codes distinguish between manufacturers, distributors and retailers, prohibiting overlapping ownership but creating exceptions for particular conditions, the complaint asserts. One such condition allows manufacturers to act as retailers in certain situations, such as at wineries and brewpubs. Deep Ellum Brewing alleges that because of this provision, it “has lost and continues to lose business (and resulting profits) because it cannot sell its product on-site…
A Florida federal court has granted preliminary approval of the settlement reached in a class action alleging that Kashi falsely advertised its products as “All Natural” despite containing genetically modified organisms (GMOs). Eggnatz v. The Kellogg Co., No. 12-21678 (S.D. Fla., order entered September 4, 2015). The court certified the class for settlement purposes and approved the $3.99 million settlement fund and terms of the agreement, which includes the removal of “All Natural” from Kashi products that contain the contested ingredients. The final approval hearing is set for January 2016. Additional details on the settlement appear in Issue 568 of this Update. Issue 578
A federal court in Puerto Rico has certified a question to the territory’s supreme court to determine whether a company can be held liable for injuries stemming from the consumption of a species of shrimp that can contain a naturally occurring toxin. Cabán v. JR Seafood Inc., No. 14-1507 (D.P.R., order entered September 11, 2015). The plaintiff became quadriplegic after eating shrimp tainted with saxitoxin at a restaurant supplied by JR Seafood. He sued JR Seafood for strict liability, arguing that the product was defective. The district court abstained from ruling, holding, “After careful review of the parties’ allegations and applicable law, the court finds that this case relies solely on an unsettled issue of Puerto Rico law, as to which this court cannot reasonably predict how the Puerto Rico Supreme Court would rule.” It then certified two questions: “Under the principles of product liability, is a supplier/seller strictly liable…
