A firearms company that holds the Tommy Gun™ trademark has brought an infringement action against a company selling its vodka products in 19-inch bottles shaped like Tommy guns. Saeilo Enters., Inc. v. Alphonse Capone Enters., Inc., No. 13-2306 (N.D. Ill., filed March 27, 2013). The plaintiff seeks damages, treble damages, profits, attorney’s fees, and costs under state and federal law, as well as a permanent injunction, cancellation of the vodka maker’s trademark registrations and the destruction of remaining stock. According to a news source, the plaintiff has been aggressive in protecting its brand and, in 2008, sued a company making Tommy gun replicas. It has also apparently trademarked the term “Chicago Typewriter,” a slang expression for the submachine gun. See ABA Journal, April 5, 2013.
Category Archives Litigation
Two California residents who recently sued Trader Joe’s for allegedly misbranding certain foods by using “organic evaporated cane juice” on its product labels have filed a putative nationwide class action against a yogurt company with similar allegations. Gitson v. Clover Stornetta Farms, Inc., No. 13-1517 (N.D. Cal., filed April 4, 2013). Details about the Trader Joe’s lawsuit appear in Issue 477 of this Update. The named plaintiffs contend that the defendant markets some 14 different flavors of its yogurt products, all of which list “organic evaporated cane juice” as an ingredient on their labels “in violation of a number of labeling regulations.” They cite Food and Drug Administration (FDA) guidance, warning letters and an open letter to demonstrate that use of this term for a yogurt sweetener is “illegal.” The plaintiffs also target the company’s websites for their alleged used of “illegal claims.” According to the complaint, they relied on…
A federal court in California has dismissed consumer-fraud putative-class claims filed in a first amended complaint against the Ghirardelli Chocolate Co., alleging violations pertaining to white chocolate products that the named plaintiff did not purchase. Miller v. Ghirardelli Chocolate Co., No. 12-4936 (N.D. Cal., order entered April 5, 2013). Details about a similar order entered as to the original complaint appear in Issue 465 of this Update. While the court disagreed with the defendant that the products were dissimilar because its label description—“Ghirardelli® Chocolate”—is like a Dunkin’ Donuts logo used on products, such as coffee, that are clearly not donuts, the court found that “an ‘unlawful’ claim based on ‘chocolate’ necessarily reaches back to the FDA definition. Identity labeling of food requires—under the plain language of the regulation that the statement of identity of the commodity on the principal display panel of a food in package form be ‘the name…
SHB’s Public Policy Group recently contributed to a favorable outcome for animal medicine manufacturers in the Supreme Court of Texas, which ruled in Strickland v. Medlen that emotion-based damages, including loss of companionship and sentimental damages, are not permitted in pet injury claims in Texas. Presenting on behalf of amici during oral argument, SHB Partner Victor Schwartz highlighted the public policy issues at stake after a lower appellate court in Texas broke with the majority of courts nationally by allowing broad, new emotion-based damages for pet deaths in a November 2011 ruling. SHB Partner Phil Goldberg authored the amici brief on behalf of the Animal Health Institute and several animal health organizations, developed other amici and helped prepare defense counsel on key issues, while Partner Manuel Lopez served as local counsel on the SHB amici brief and provided expertise on the appellate process. In its ruling, the court ultimately recognized that finding…
A Connecticut-based law firm has filed Proposition 65 (Prop. 65) lawsuits against three companies that make food extracts and flavorings, alleging that they fail to disclose the presence of 4-Methylimidazole (4-MEI), a substance known to California to cause cancer. Leeman v. Adams Extract & Spice Co., LLC, No. 13-529493; Leeman v. McCormick & Co., Inc., No. 13-529494; Leeman v. Farmer Bros. Co., No. 13 529495 (Cal. Super. Ct., San Francisco Cty., filed March 13, 2013). Named plaintiff Whitney Leeman claims to hold a doctorate in environmental engineering and seeks “to promote awareness of exposures to toxic chemicals in products sold in California.” She provided 60-day notices of violation to the companies in December 2012 concerning their alleged failure to warn consumers about 4-MEI exposure. The products specifically named in the complaints are Adams’ “Extract Maple Imitation Maple Flavor,” McCormick’s “Culinary Imitation Maple Flavor” and “Culinary Caramel Color,” and Farmer’s “Sierra Brand…
According to a news source, trial begins April 8, 2013, in the Environmental Law Foundation’s Proposition 65 (Prop. 65) lawsuit against 28 food manufacturers and retailers in a California state court, alleging failure to warn the public that their baby and toddler foods and fruit juices contain lead, a chemical known to the state to cause reproductive toxicity or cancer. Envtl. Law Found. v. Beech-Nut Nutrition Corp., No. 11-597384 (Cal. Super. Ct., Alameda Cty., filed Sept. 28, 2011). Details about the case appear in Issue 412 of this Update. The trial will involve the manufacturing defendants and will resolve their affirmative defenses only. Trials over damages issues and claims against the retailers have not apparently been scheduled. Among the defenses that the court will consider are whether (i) Prop. 65, as applied, is preempted under the Food, Drug, and Cosmetic Act and federal nutrition programs; (ii) exposure to the products’ lead levels…
A federal court in California has dismissed in part the first amended complaint in a putative class action against Frito-Lay and PepsiCo, alleging that the companies falsely advertised and labeled their products as “All Natural,” “0 Grams Trans Fat,” “No MSG,” “low sodium,” “healthy,” and with other unspecified health claims. Wilson v. Frito-Lay N. Am., Inc., No. 12-1586 (N.D. Cal., order entered April 1, 2013). Dismissed with prejudice were claims that the companies breached warranties under the Magnuson-Moss Warranty Act and the Song Beverly Consumer Warranty Act. Among the claims that the plaintiffs will be allowed to amend are the allegations against PepsiCo, dismissed due to insufficient pleading; allegations involving products not specifically named or described in the complaint; and a claim for restitution based on unjust enrichment, which should have been pleaded in the alternative. To the extent that the plaintiffs based their unfair, false and deceptive advertising claims…
The D.C. Circuit Court of Appeals has ruled that the Freedom of Information Act (FOIA) requires federal agencies to issue a determination about what will be produced to or withheld from a FOIA requester within statutory deadlines; a failure to do so is deemed the exhaustion of administrative remedies and allows the requester to bring an action in federal court to compel the production of responsive documents. Citizens for Responsibility & Ethics in Wash. v. Fed. Election Comm’n, No. 12-5004 (D.C. Cir., decided April 2, 2013). The Federal Election Commission (FEC) contended that it could simply inform a FOIA requester within the 20-day deadline (or 30 days in “unusual circumstances”) that it would produce non-exempt responsive documents and claim exemptions in the future. According to the court, FEC’s interpretation of the statute would allow an agency to “keep FOIA requests bottled up in limbo for months or years on end.” FEC claimed…
New York City Mayor Michael Bloomberg has announced that the city’s request for an expedited hearing on its appeal of a court ruling striking down a limitation on the size of sugar-sweetened beverages sold in certain retail venues has been granted and that friend-of-the court briefs have been filed in support of the city’s appeal. The lead signatories to the amicus briefs are the National Alliance for Hispanic Health and National Association of Local Boards of Health. They were joined by 30 other organizations and health advocates, including the Harlem Health Promotion Center, Rudd Center, Public Health Law Center, and Northeastern University School of Law Professor Wendy Parmet. According to Bloomberg, “The organizations and individuals who have joined these amicus briefs understand the toll that obesity is taking on communities here in New York City and across the nation. Sugary drinks are a leading contributor to the obesity epidemic that…
Three California residents have filed a putative class action against food retailer Trader Joe’s in federal court, alleging three different types of misleading labeling claims: using the terms “evaporated cane juice” or “organic evaporated cane juice,” identifying as “natural” or “no added coloring or preservatives” foods that contain added preservatives and artificial colors, and representing non-dairy calcium products as “milk.” Gitson v. Trader Joe’s Co., No. 13-1333 (N.D. Cal., filed March 25, 2013). The plaintiffs claim that the company’s “labeling, advertising and marketing as alleged herein are false and misleading and were designed to increase sales of the products at issue. Defendant’s misrepresentations are part of an extensive labeling, advertising and marketing campaign, and a reasonable person would attach importance to Defendant’s misrepresentations in determining whether to purchase the products at issue.” The complaint outlines the applicable Food and Drug Administration (FDA) regulations that the defendant allegedly violated, noting that…
