The Federal Circuit has reversed and remanded a Trademark Trial and Appeal Board (TTAB) decision invalidating Snyder’s-Lance Inc.’s “Pretzel Crisp” trademark after Frito-Lay Inc. challenged the mark as generic. Princeton Vanguard, LLC v. Frito-Lay N. Am., Inc., No. 14-1517 (Fed. Cir., order entered May 15, 2015). TTAB’s decision found that “Pretzel Crisp” is a compound term and not a phrase, so it analyzed “pretzel” and “crisp” separately and found both words to be generic descriptors of Snyder-Lance’s pretzel-cracker product. The Federal Circuit disagreed with this method, holding that TTAB had conducted a “short-cut analysis” by not considering “Pretzel Crisp” as a whole phrase, because “the test for genericness is the same, regardless of whether the mark is a compound term or a phrase.” At the end of its decision, TTAB noted that “were we to analyze [‘Pretzel Crisp’] as a phrase, on this record, our conclusion would be the same, as…
Category Archives Litigation
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…
The Center for Science in the Public Interest (CSPI) has threatened to bring lawsuits against Plum Organics and Gerber Products Co. for allegedly deceptive trade practices in the marketing and labeling of their food products for babies and toddlers. In its May 11, 2015, letter addressed to Gerber and its parent company Nestlé S.A., CSPI notes that the company labels several of its products in the 2nd Foods, 3rd Foods and Graduates lines “as being composed of certain healthful ingredients, when, in fact, the Products contain substantial amounts of other less healthful, less valuable ingredients, such as apple juice, that are not identified at all on the [principal display panel].” Similar allegations appear in the letter addressed to the heads of Plum Organics concerning the company’s baby food and 4 Essential lines. The letters assert that both companies market the products as containing high amounts of “healthful, high-value ingredients, such…
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…
The General Court of the European Union has upheld a ruling that pomazánkové máslo, a product primarily marketed in the Czech Republic, cannot be labeled as “butter” under the single common market organization (CMO) regulation. Czech Republic v. European Commission, No. T-51/14 (Gen. Ct., order entered May 12, 2015). The product, a spread used in similar ways to butter, has a minimum fat content of 31 percent by weight, a minimum dry nonfat milk-material content of 42 percent, and a water content of up to 58 percent. The court ruled that the product does not meet the regulation’s standards, which require between 80 and 90 percent of milk-fat content, a maximum water content of 16 percent and a maximum dry material content of 2 percent. Further, the court ruled, the Czech Republic cannot circumvent the provisions of the single CMO regulation by claiming to be exempt if the product is…
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
Consumer Advocacy Group, Inc. has filed a lawsuit against T.J. Maxx, its parent company and its food supplier alleging that they failed to provide a warning of lead content in a raspberry balsamic vinegar product in accordance with the Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65), the California law that requires warnings on the labels of products that contain substances known to cause cancer or reproductive harm. Consumer Advocacy Grp. Inc. v. Olivier Napa Valley Inc., No. BC580857 (Cal. Super. Ct., Los Angeles Cty., filed May 4, 2015). The complaint asserts that because all “[v]inegar contains lead,” the defendants should have known that the product was subject to Prop. 65 labeling requirements. Consumer Advocacy Group argues that it investigated the product and gave notice of the alleged violation to each defendant, the state attorney general, county district attorneys and city attorneys but none of the authorities…
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.”…
