The office of California Attorney General Kamala Harris will appeal the January 2015 decision overturning the state’s ban on foie gras, according to a notice of appeal filed in California federal court. Association des Éleveurs de Canards et d’Oies du Québec v. Harris, No. 12 5735 (U.S. Dist. Ct., C.D. Cal., notice of appeal filed February 4, 2015). The prohibition was found to impose “[m]arking, labeling, packaging, or ingredient requirements” that interfered with the free flow of poultry products in violation of the federal Poultry Products Inspection Act. The AG’s 1-page notice of appeal cited no arguments supporting its challenge. Additional details about the district court decision appear in Issue 550 of this Update. Issue 554
Category Archives U.S. Circuit Courts
Let’s Buy British Imports (LBB Imports) has reportedly agreed to stop importing Cadbury chocolate made overseas pursuant to the settlement of a lawsuit in which Hershey Co. alleged that the importer violated the candy company’s trademarks and trade dress of Cadbury, Kit Kat® and other products by selling versions produced internationally. Hershey Co. v. LBB Imports LLC, No. 14-1655 (M.D. Penn., settlement date unknown). The settlement agreement apparently restricts the importation of all Cadbury chocolate as well as Kit Kat® bars, Toffee Crisps, York Peppermint Patties, and Maltesers®. Many consumers have responded negatively to the settlement terms; a campaign to boycott Hershey began on Twitter, and a MoveOn.org petition to protest Hershey’s trademark protection actions has garnered more than 25,000 signatures. The protesters reportedly argue that British Cadbury chocolate tastes better because of its ingredients—the British version of Cadbury’s Dairy Milk bar contains milk as its first ingredient while the American…
Noodles Raw Catering, owner of Chubby Noodle restaurants, has filed a lawsuit alleging that Saison Group’s Fat Noodle restaurant infringes on Noodles Raw’s trademark. Noodles Raw Catering LLC v. Saison Group LLC, No. 15-316 (N.D. Cal., filed January 22, 2015). The complaint asserts that although Chubby Noodle, which sells “high-quality, well-priced Asian-inspired” food, does not yet own a federally registered trademark in its name (because its application is pending), it has received national and international attention since its opening in 2011. Saison has been developing a Fat Noodle restaurant since 2012—as indicated by intent-to-use applications with the U.S. Patent and Trademark Office—but has not yet opened the restaurant, and its website appears to be a placeholder. Noodles Raw alleges that the logo appearing on the website is too similar to its Chubby Noodle logo because both feature “a simple, black, Asian-style bowl with noodles.” Claiming common law trademark infringement, false…
A group of consumers has filed a putative class action against Cytosport Inc., maker of Muscle Milk, alleging that its powdered and ready-to-drink protein supplements do not contain the ingredients and characteristics advertised on its packaging. Clay v. Cytosport Inc., 15-165 (S.D. Cal., filed January 23, 2015). The plaintiffs argue that independent scientific testing shows that Muscle Milk products contain substantially less protein than the amount represented in the Nutrition Facts panel. They also allege that Muscle Milk labels list L-glutamine amino acids separately from the protein content to falsely imply that the products have additional L-glutamine beyond the content inherent in the protein mix. The complaint further argues that Muscle Milk labels cannot feature the word “lean” because the product does not contain less fat than its competitors. Alleging deceptive advertising, misrepresentation and breach of warranties, the putative class seeks certification, damages, an injunction, and attorney’s fees. Issue…
A California federal court has dismissed without leave to amend claims that the makers of 5-Hour Energy—Innovation Ventures LLC, Living Essentials LLC, Manoj Bhargava, and Bio Clinical Development Inc.—falsely advertised their product as boosting its users’ energy levels with B-vitamins and amino acids rather than caffeine. In re: 5-Hour Energy Mktg. & Sales Practices Litig., No. 13-2438 (C.D. Cal., order entered January 22, 2015). The plaintiffs argued that the 5-Hour Energy makers downplayed the caffeine content in favor of attributing the product’s energy source to vitamins and other ingredients, and they included descriptions of five commercials containing the allegedly misleading statements. The court found that they failed to show what statements actually misled them, and it was also unpersuaded by the argument that the plaintiffs were exposed to a common message and thus did not need to specify which statements they relied upon to their detriment, so it dismissed without…
A Minnesota federal court has granted in part and denied in part a motion to dismiss in a lawsuit alleging that Hormel Food Corp. stole trade secrets and breached contractual agreements in its joint venture to develop new methods of cooking bacon. Unitherm Food Sys. Inc. v. Hormel Food Corp., No. 14-4034 (D. Minn., order entered January 27, 2015). Unitherm alleged that it created the first viable method for pre-cooking sliced bacon—a process using spiral ovens and super-heated steam—and agreed to develop a commercially viable product with Hormel in June 2007. Unitherm asserted that Hormel disclosed its process, which Unitherm had not yet patented, to a rival company in violation of confidentiality agreements, which constituted an appropriation of trade secrets. The court disagreed, finding that Unitherm’s July 2009 patent application precluded its claim of trade secrets because patented processes cannot, by necessity, be trade secrets due to the disclosure of…
A Missouri federal court has dismissed a lawsuit challenging the “all natural” labels of Cape Cod Chips because the plaintiff failed to provide a suitable definition of “natural.” Kelly v. Cape Cod Potato Chip Co., No. 14-119 (W.D. Mo., order entered January 27, 2015). The plaintiff alleged that 16 varieties of Cape Cod Chips were advertised as “all natural” and made without preservatives despite containing 13 artificial and synthetic ingredients. The court reviewed the definitions of “natural” submitted by the plaintiff and found them each lacking. It first dismissed the dictionary definition, “existing or produced by nature: not artificial,” as “not plausible because the Chips are processed foods, which of course do not exist or occur in nature.” The definition of “natural” found in an informal advisory opinion from the U.S. Food and Drug Administration (FDA) was not binding, the court found, because the agency “specifically declined to adopt any…
The D.C. Circuit Court of Appeals has affirmed a Federal Trade Commission (FTC) order that found POM Wonderful’s advertising to be misleading for claiming that its products treat or reduce the risk of several medical conditions, including prostate cancer and heart disease. POM Wonderful, LLC v. FTC, No. 13-1060 (D.C. Cir., order entered January 30, 2015). In 2013, FTC ordered POM to stop making misleading health claims about its product, and POM challenged the ruling. POM argued that its ads were protected by the First Amendment, but the court dismissed this argument, finding that deceptive and misleading ads have no First Amendment protection. The juice company also asserted that it had clinical studies to support its health claims. The circuit court affirmed FTC’s finding that POM had cherry-picked its results when presenting them to the public, which invalidated them as support for the claims. The court agreed with POM, however, that…
A Pennsylvania federal court has denied H.J. Heinz Co.’s motion for summary judgment in a lawsuit alleging that the company stole the idea for the “Dip & Squeeze” ketchup packet. Wawrzynski v. H.J. Heinz Co., No. 11-1098 (W.D. Penn., order entered January 7, 2015). The plaintiff asserts that he met with the company in 2008 and presented the idea for the dual-opening packet, but they never reached a deal; Heinz later released its Dip & Squeeze packet, which the plaintiff argues was too similar to his concept. The court noted that although Heinz presented evidence showing that it was actively developing a dual-function condiment container before meeting with the plaintiff, the plaintiff had also shown that Heinz had been unsuccessful in creating or marketing a feasible container. “Given the evidence presented by both parties to this lawsuit,” the court concluded, “whether either or both of Plaintiff’s ideas were novel and concrete…
A New York federal court has granted conditional class certification to plaintiffs employed by T.G.I. Friday’s who allege underpayment for side work and lack of payment for overtime work in violation of the Fair Labor Standards Act (FLSA). Flood v. Carlson Restaurants Inc., No. 14-2740 (S.D.N.Y., filed April 17, 2014). The restaurant employs as many as 42,000 tipped workers throughout the United States who are eligible to join the nationwide class. T.G.I. Friday’s argued that the named plaintiffs were not similar enough to merit class certification, but the court disagreed, finding that the plaintiffs’ “declarations and depositions—which cover eight T.G.I. Friday’s locations in four states—contain common allegations of FLSA violations, including Defendants’ denial of full minimum wage and overtime compensation for tipped workers.” The court dismissed the restaurant’s arguments on the merits of the case, noting that those issues could not be addressed at the class certification stage, and directed…
