Big Red, Inc., a beverage company owned by Dr Pepper Snapple Group Inc., has filed a trademark infringement lawsuit against Catawissa Bottling Co., alleging that the company packages its Big Ben cream soda too similarly to Big Red’s red cream soda product. Big Red, Inc. v. Catawissa Bottling Co., Inc., No. 15-1423 (N.D. Tex., filed March 6, 2015). Big Red cites as distinctive its “consistent product packaging, which is unified by a central configuration: Two single syllable words, ‘BIG RED,” are featured prominently on the center of a label and positioned between stylized text or small accents. The label is then imposed on a clear, wide shouldered bottle with a tapered neck that angles smoothly towards the collar.” Big Ben “is artificially colored to an identical shade of red,” Big Red argues, and “is marketed in product packaging that is nearly identical.” Big Red alleges federal and state trademark and…
Category Archives U.S. Circuit Courts
An Illinois federal court has sentenced the former president of a Wisconsin cheese company to five days in jail, one year of probation and a $750,000 fine for lying to U.S. Food and Drug Administration inspectors about Queso Cincho de Guerrero cheese imported from Mexico and tainted with E. coli and Salmonella. U.S. v. Zurita, No. 12-0290 (N.D. Ill., sentence entered May 8, 2015). In 2007, Mexican Cheese Producers, Inc. reportedly received tainted cheese returned by retailers. Company workers apparently scraped and washed the cheese, and it was later resold. No illnesses related to the cheese were reported, and the government could not show that company owner Miguel Leal had ordered the workers’ actions, but he pled guilty in 2014 to charges of distributing tainted food and lying about it to federal inspectors. Government prosecutors asked for prison time of 10-16 months. “I don’t think I would have put him…
A California federal court has dismissed the claims in a putative class action alleging that Flowers Bakeries misrepresents its Nature’s Own® bread as natural, healthy and wholesome despite containing synthetic ingredients, including azodicarbonamide, the “yoga mat chemical.” Romero v. Flowers Bakeries, No. 14-5189 (N.D. Cal., San Jose Div., order entered May 6, 2015). The plaintiffs argued that the brand name “Nature’s Own,” pictures of “stalks of wheat and pots of honey” and statements such as “no artificial preservatives, colors and flavors” on the packaging of the products misleads consumers into believing that the products are “a natural food product, therefore connoting that [the products] are somehow more healthy and wholesome.” The court found deficiencies in the plaintiff’s complaint, noting that she failed to clarify which misrepresentation allegations applied to which products. “It is not the task of the Court or of Defendant to diagram the intersection between the challenged products…
A New York federal court has granted in part and denied in part a motion to dismiss a lawsuit alleging that Hain Celestial’s Earth’s Best® food and body-care products are deceivingly labeled as “organic,” finding that the Organic Foods Production Act (OFPA) does not preempt the plaintiffs’ claims. Segedie v. Hain Celestial Grp., No. 14-5029 (S.D.N.Y., order entered May 7, 2015). The plaintiffs challenged 69 food products and 20 body-care products labeled “organic,” “natural” or “all natural,” arguing that they contain ingredients inconsistent with the company’s claims. In assessing precedent on preemption, the court found that a federal agency’s approval of a label does not bar any challenge to that label. The court also determined that the plaintiffs’ claims were legally sufficient as to both the “organic” and “natural” challenges. Hain argued that the ingredients in question were subject to an exemption under OFPA because they were nutrient vitamins or…
The food industry groups challenging Vermont’s statute requiring the labeling of food containing genetically modified organisms (GMOs) have filed a notice of appeal one week after a Vermont federal court denied their motion for an injunction to stop the law from taking effect on July 1, 2016. Grocery Mfrs. Ass’n v. Sorrell, No. 14-0117 (D. Vt., notice of appeal filed May 6, 2015). While the motion for a preliminary injunction failed, the court allowed the case to proceed. Additional information about the injunction denial appears in Issue 563 of this Update. Issue 564
A California man has filed purported class actions against Nestlé USA Inc. and General Mills Inc. claiming that both companies use trans fat in their products—specifically, General Mills’ baking mixes and Nestlé’s coffee creamers—despite the availability of acceptable alternative ingredients without trans fat. Backus v. Gen. Mills Inc., No. 15-1964 (N.D. Cal., filed April 30, 2015); Backus v. Nestle USA Inc., No. 15-1963 (N.D. Cal., filed April 30, 2015). Each complaint details the history and structure of partially hydrogenated oil (PHO), the products’ source of artificial trans fat. Plaintiff Troy Backus argues that the scientific consensus on PHO advises that “consumers should keep their consumption of trans fat ‘as low as possible’” because it allegedly causes cardiovascular disease, type 2 diabetes, cancer and other medical conditions. He also cites regulations limiting trans fats in California, New York City, Denmark and other jurisdictions as evidence that the substance is “inherently dangerous.”…
Skinnygirl Cocktails, LLC and a consumer have filed a joint stipulation of dismissal in a lawsuit alleging that the company and its reality-TV star founder, Bethenny Frankel, mislabeled its Margarita cocktail as “natural” despite containing the preservative sodium benzoate. Langendorf v. Skinnygirl Cocktails, LLC, No. 11-7060 (N.D. Ill., joint stipulation of voluntary dismissal with prejudice filed May 5, 2015). The joint stipulation comes after the court refused to certify the class in October 2014, finding that the plaintiff failed to show that the class was ascertainable and that the plaintiff was not a suitable representative for the class due to a personal relationship with her counsel. The stipulation does not indicate whether the parties reached a settlement. Additional information about the denial of class certification appears in Issue 544 of this Update. Issue 564
A New York federal court has reportedly approved an agreement between Red Bull GmbH and a class of consumers, settling allegations that Red Bull falsely advertised its product as providing more benefit than coffee provides. Careathers v. Red Bull N. Am. Inc., No. 13-0369 (S.D.N.Y., order entered May 1, 2015); Wolf v. Red Bull GmbH, No. 13-8008 (S.D.N.Y., order entered May 1, 2015). The agreement allots $13 million to the 2 million claimants, of whom 60 percent will each receive $4.23 and 40 percent will each receive a four-pack of Red Bull energy drinks. The court cut the fees for plaintiffs’ counsel down to about $3.4 million, or about $1.4 million less than they requested; the attorney’s fees and class award were not linked, and the court apparently indicated that it would have preferred to lower the attorney’s fees amount to increase the total consumer amount to accommodate the large…
A Florida federal court has dismissed a lawsuit alleging that Beam Suntory Inc. and Maker’s Mark Distillery falsely label their Maker’s Mark® bourbon as “handmade” because they manufacture the product using a mechanized process. Salters v. Beam Suntory, Inc., No. 14-659 (N.D. Fla., order entered May 1, 2015). The plaintiffs “have been unable to articulate a consistent, plausible explanation of what they understood ‘handmade’ to mean in this context. This is understandable; nobody could believe a bourbon marketed this widely at this volume is made entirely or predominantly by hand,” the court said. The court first found that the process of making Maker’s Mark® bourbon is handmade in the original sense of the word because it is “distinguished from the work of nature,” according to the Oxford English Dictionary definition. “In that sense all bourbon is handmade; bourbon, unlike coffee or orange juice, cannot be grown in the wild.” The court…
In a May 5, 2015, Law360 analysis, Shook, Hardy & Bacon Partner Andy Carpenter chronicles a “meta” class action against Riceland Foods, Inc., a party to multidistrict litigation (MDL) stemming from the use of genetically modified organism (GMO) rice, which several thousand rice farmers alleged had tainted the U.S. rice supply. After Riceland obtained a verdict in a cross-claim against Bayer and settled its portion of the MDL, class-action counsel and plaintiffs filed a lawsuit against the company to obtain compensation for their work, from which they argued Riceland benefited when it received a judgment from Bayer. Carpenter details the reasoning of the district court and the later affirmation from the Eighth Circuit, discussing issues of jurisdiction and choice of law. Issue 564
