Mondelez Canada Inc. has filed a lawsuit in California federal court alleging Stoney Patch cannabis-infused gummies infringe the trademark and trade dress of Sour Patch gummy candies. Mondelez Canada Inc. v. Stoney Patch, No. 19-6245 (C.D. Cal., W. Div., filed July 19, 2019). Stoney Patch candies, which contain tetrahydrocannabinol (THC), and Sour Patch Kids are both sold in yellow bags with green accents featuring the first word of the brand in green, all-caps sans serif type and "Patch" in the same type in orange. Where the Sour Patch Kids bag features silhouettes of the candies—colorful gummies in humanoid shapes—the Stoney Patch bag features images of a marijuana leaf. Mondelez argues that "it is inconceivable" that Stoney Patch adopted its mark without notice of the Sour Patch design and Mondelez' trademark rights to it. The company alleges federal trademark infringement, trade dress infringement, trademark dilution and unfair competition, and it seeks…
Category Archives Litigation
Turtle Island Foods, which does business as The Tofurky Co., has filed a civil-rights action alleging an Arkansas law that "prohibits purveyors of plant- or cell-based meats from using the words 'meat' and related terms like 'beef,' 'pork,' 'roast,' and 'sausage'" is "a restriction on commercial speech that prevents companies from sharing truthful and non-misleading information about their products." Turtle Island Foods SPC v. Soman, No. 19-0514 (E.D. Ark., W. Div., filed July 22, 2019). Turtle Island argues that the law creates consumer confusion rather than helping resolve it, asserting that its own marketing and its competitors' marketing "emphasizes—through the use of commonly understood terms like 'veggie burger'—that their products are plant-based alternatives to meat from live animals." The complaint further argues that other laws already prohibit misleading or deceptive labeling, including the federal Food, Drug, and Cosmetic Act and the Federal Trade Commission Act. Turtle Island alleges violations of…
A consumer has filed a putative class action alleging that Welch Foods Inc.'s grape juices contain excessive levels of lead and arsenic, citing a January 2019 article appearing in Consumer Reports. Labajo v. Welch Foods Inc., No. 19-1306 (C.D. Cal., filed July 16, 2019). The complaint also cites California's Safe Drinking Water and Toxic Enforcement Act (Prop. 65), noting, "This Complaint does not allege a violation of Proposition 65. Proposition 65 is relevant, however, to the extent it provides information concerning the material omissions in violation of California's Consumer Protection laws, and guidance as to a reasonable consumer's purchasing decisions." The plaintiff seeks class certification, injunctions preventing fraudulent business practices and requiring disclosure of lead and arsenic content, restitution, damages and attorney's fees for alleged violations of California consumer-protection statutes.
The General Court of the European Union has confirmed that bisphenol A (BPA) is a substance of very high concern under the EU's REACH Regulation. PlasticsEurope, which represents four companies that sell BPA-related materials, challenged the categorization. The organization argued that the listing should exclude intermediate uses of BPA, including as an on-site isolated intermediate or a transported isolated intermediate. The General Court ruled that the uses were not exempt from the REACH Regulation, noting that "one of the objectives of the candidate list of substances is the establishment of information sharing obligations in respect of substances of very high concern within the supply chain and with consumers. The identification of a substance as a substance of very high concern serves to improve information for the public and professionals as to the risks and dangers incurred. The General Court therefore considers that the contested decision is consistent with the objective…
Friendly's Manufacturing and Retail markets its ice-cream products as "flavored exclusively from vanilla beans" but uses artificial flavors in at least 57 products, including cakes, cartons, cones, bars and sandwiches, according to a consumer's putative class action. Charles v. Friendly's Mfg. & Retail LLC, No. 19-6571 (S.D.N.Y., filed July 15, 2019). The complaint asserts that Friendly's sells its products as "vanilla" flavored but does not use vanilla-derived flavor. "The Products are misleading because they are marketed as vanilla ice cream adjacent to other vanilla ice cream products which contain vanilla flavoring exclusively from vanilla beans," the plaintiff argues, providing a competitor's label showing "vanilla extract" as an ingredient. "Where two similarly labeled products are situated in the same category or section of a store and their representations as to quality and/or fill are identical, yet the former is lacking the quantity of the characterizing ingredient (vanilla) or qualities, the reasonable…
A consumer has filed a putative class action alleging that Post Consumer Brands' Honey Bunches of Oats is misleadingly named because the cereals are sweetened primarily by "sugar, corn syrup, and other refined substances, and contain only miniscule amounts of honey." Tucker v. Post Consumer Brands LLC, No. 19-3993 (N.D. Cal., filed July 11, 2019). The complaint details the alleged "negative health effects of consuming excess amounts of sugar" and asserts that "the branding and packaging of the Products convey the clear message that honey is the primary sweetener or—at a minimum—that honey is a significant sweetener compared to sugar and other refined substances that are perceived by consumers to be unhealthy or less healthy. Unfortunately for consumers, this message is simply untrue." The plaintiff includes the ingredient lists for several Honey Bunches of Oats varieties, which show "sugar" as the second or third ingredient along with "brown sugar," "corn…
A plaintiff has alleged that Ferrara Candy Co. misleads consumers by labeling its candies as containing no artificial flavors while including malic acid as an ingredient. Gruber v. Ferrara Candy Co., No. 19-4700 (N.D. Ill., E. Div., filed July 12, 2019). The complaint echoes other putative class actions alleging that the "malic acid" listed as an ingredient is more specifically "dl-malic acid," a synthetic food additive that can add tartness. The plaintiff alleges that he paid money for products—including Nerds, Sprees, Laffy Taffy and Everlasting Gobstoppers—that he would not have purchased if he had known that they contained artificial ingredients; further, "[w]orse than the lost money, the Plaintiff, the Class, and Sub-Class were deprived of their protected interest to choose the foods and ingredients they ingest." For an alleged violation of Illinois consumer-protection law as well as fraud, unjust enrichment and breach of express warranty, the plaintiff seeks class certification,…
The U.S. Trademark Trial and Appeal Board (TTAB) has affirmed the denial of Yarnell Ice Cream LLC's application to register a trademark on a mascot named "Scoop." In re Yarnell Ice Cream, LLC, No. 86824279 (TTAB, entered July 9, 2019). The examining attorney rejected the application, finding "scoop" to be merely descriptive, and the appeals board agreed, pointing to examples from competitors identifying their serving sizes in scoops. The board also dismissed the argument that Yarnell's "scoop" has two meanings—the ice cream serving and the breaking-news description—because the latter intended meaning only became clear within the context of Yarnell's trade dress. "The dictionary definitions, third-party uses and registrations, and webpages and articles discussed and displayed above make it clear that 'scoop' is a common portion size and measuring unit for frozen confections and ice cream," the court held. "We find that 'scoop' has little, if any, source-identifying capacity as a…
Upton's Naturals Co. has filed a lawsuit challenging Mississippi's law prohibiting the use of "meat" to describe products that are not derived from animals. Upton's Naturals Co. v. Bryant, No. 19-0462 (S.D. Miss., filed July 1, 2019). Upton's, which makes "vegan burgers," "vegan bacon" and "vegan chorizo," argues that the law is a "content-based regulation of speech" that "has no positive impact on society"—rather, it "harms society"—and "does not address any real problem in a meaningful way, but instead creates an artificial one" because it lowers consumer understanding of vegan products. Upton's seeks declaratory judgment that the law violates the First and Fourteenth Amendments, preliminary and permanent injunctions, attorney's fees and $1 in damages.
The Organic Consumers Association (OCA) has alleged that Twinings North America Inc. misleads consumers by representing its tea products as "pure" and "natural" despite containing traces of pesticides. Organic Consumers Ass'n v. Twinings N. Am. Inc., No. 2019 CA 4412 (D.C. Super. Ct., filed July 5, 2019). The advocacy group alleges that "[t]ests conducted by an independent laboratory using liquid chromatography mass spectrometry revealed the presence of thiacloprid in the Green Tea at levels of up to 0.156 milligrams per kilogram" and argues that Twinings knowingly misrepresents its products as "pure" to appeal to consumers looking for pesticide-free products. For an alleged violation of the D.C. Consumer Protection Procedures Act, OCA seeks an injunction, costs and attorney's fees.
