Tapatio Foods has filed a trademark infringement lawsuit alleging that Tiowaxy Hot Sauce is sold with a similarly designed label, confusing consumers and causing brand tarnishment to Tapatio's hot sauce. Tapatio Foods v. Alfarh, No. 19-0335 (E.D. Cal., filed March 11, 2019). Tapatio alleges that Tiowaxy's label infringes because it also features a man in a sombrero with the brand name above the image. Further, Tiowaxy contains THC—which is derived from cannabis—and Tapatio alleges that "the association of the Infringing Marks with marijuana," "a Schedule 1 controlled substance," has tarnished Tapatio's reputation. Tapatio seeks an injunction, corrective advertising, disgorgement and damages for alleged Lanham Act and California consumer-protection statute violations.
Category Archives Litigation
The U.S. Court of Appeals for the Second Circuit has affirmed a lower court's dismissal of a lawsuit alleging that the name "Diet Pepsi" misleads consumers into believing that the product will assist with weight loss. Manuel v. Pepsi-Cola Co., No. 18-1748 (2nd Cir., entered March 15, 2019). "The studies cited by the complaint establish, at most, that people who drink beverages containing non‐nutritive sweeteners continue to gain weight," the appeals court found. "None of the studies purports to establish a causal relationship between non‐nutritive sweeteners and weight gain to a degree that is sufficiently strong. Therefore, Plaintiffs cannot raise a plausible inference that the use of the word 'diet' is false, inaccurate, or misleading. Accordingly, the district court properly dismissed the complaint."
Whole Foods Market Inc. and Health-Ade LLC have agreed to pay $4 million to settle allegations that Health-Ade labels its kombucha as non-alcoholic despite containing "more alcohol than permitted for non-alcoholic beverages." Bayol v. Health-Ade LLC, No. 18-1462 (N.D. Cal., filed March 15, 2019). Under the agreement, class members can receive $4 for each bottle of kombucha purchased, with a limit of 20 claims with proof of purchase and 10 without. Health-Ade also agreed to change its formula to better control the variability of alcohol and sugar content and update its labels to notify purchasers that "[d]ue to natural fermentation, there may be trace amounts of alcohol and small pieces of culture."
Three restaurant owners, along with the California Restaurant Association (CRA) and Dart Cardboard Corp. of California, have reportedly filed a lawsuit challenging San Diego's ban on polystyrene food containers, alleging that the city failed to conduct an environmental review before instituting the ban. "The CRA has filed a legal challenge to hold city government accountable for following a legally-required process. The lack of an environmental study in San Diego prior to the city considering a ban on polystyrene food packaging is alarming," CRA stated in a tweet. "The City ignored a critical step in evaluating the environmental impact that replacement products will have at local landfills, along beaches and to air and water quality. We have all the confidence in the legal process and that the court will validate our complaint." Meanwhile, Maryland may reportedly become the first state to ban polystyrene food containers. The Maryland legislature has sent a…
A California federal court has dismissed part of a putative class action alleging Bai Brands misleads consumers as to its ingredients because it does not label "malic acid" as "d-l malic acid." Branca v. Bai Brands, No. 18-0757 (S.D. Cal., entered March 7, 2019). The court first refused to dismiss the plaintiff's allegation that Bai beverages contain the artificial form of malic acid, finding that while his "assumption as to the type of malic acid contained in Defendants' Products ultimately may be incorrect, at the pleading stage, this Court 'does not operate as a fact-finder,' but, instead, must 'presume all facts plead as true.'" The court also declined to "make a factual determination at this time as to whether malic acid is an artificial flavor" and denied Bai's motion to dismiss those claims. The court then turned to the allegation that the use of "malic acid" on the ingredients list…
An Ohio federal court has granted Spangler Candy Co. a preliminary injunction in its lawsuit alleging that Tootsie Roll Industries copied the packaging of its Dum Dums candy. Spangler Candy Co. v. Tootsie Roll Indus., No. 18-1146 (N.D. Ohio, entered March 13, 2019). The court found the Dum Dums red bag not inherently distinctive, instead relying on evidence that Tootsie had intent to copy because it "specifically recognized the similarity between the violators’ color scheme, had multiple other options, and chose to proceed with the similar design anyway." The court also found that "the amount-of-sales and established-place-in-the-market weigh strongly in Spangler's favor."
A consumer has filed a putative class action alleging that The Hain Celestial Group's Coconut Dream, "a coconut 'milk' style drink that is primarily coconut oil (or coconut oil and added sugar) in water," is marketed to appeal to health-conscious consumers despite being "basically saturated fat (or saturated fat and added sugar)." Andrade-Heymsfield v. Hain Celestial Grp. Inc., No. 19-0433 (S.D. Cal., filed March 5, 2019). The complaint alleges that Hain Celestial misleads consumers by representing Coconut Dream as healthful despite studies purportedly linking coconut-oil consumption and increased risks of cardiovascular heart disease. The plaintiff also alleges a link between sugar consumption and obesity, metabolic syndrome and diabetes. She seeks class certification, damages, corrective advertising, destruction of misleading materials and attorney's fees for alleged violations of California consumer-protection statutes.
Sugarfina and Sweet Pete's have reached an agreement to settle allegations that Sweet Pete's infringed Sugarfina's trademarks, copyrights, patent and trade dress by copying the "museum-quality Lucite" used to package its candies. Sugarfina Inc. v. Sweet Pete's, No. 17-4456 (C.D. Cal., settlement notice filed March 5, 2019). Under the agreement, Sweet Pete's will pay $2 million and change its packaging from the allegedly infringing cubes.
A consumer has filed a putative class action alleging that L & K Coffee Co. misleads consumers by selling a blend of coffee it labels as "Kona," which allegedly refers to a distinctive geographic region in Hawaii. Faison v. L & K Coffee Co., No. 19-1248 (E.D.N.Y., filed March 3, 2019). The complaint asserts that authentic Kona coffee has identifiable "concentration ratios of strontium-to-zinc and barium-to-nickel," and testing purportedly found different ratios in L & K's Kona coffee. "A reasonable consumer would not expect a product labeled a Kona blend to contain 100% Kona, but would expect an amount significant enough to characterize the overall blend, and that amount is absent from the Products," the plaintiff argues. For allegations of fraud, negligent misrepresentation, unjust enrichment and violations of New York consumer-protection statutes, he seeks injunctive relief, damages and attorney's fees.
A California federal court has preliminarily approved a settlement agreement between a consumer and Ferrara Candy Co. alleging the company misleadingly advertised its SweeTarts as free of artificial flavors despite containing malic acid. Littlejohn v. Ferrara Candy Co., No. 18-0658 (S.D. Cal., entered February 28, 2019). Under the agreement, Ferrara will remove the phrase "no artificial flavors" from its packaging and marketing materials and pay $272,000 in attorney's fees.
