A consumer has filed a putative class action alleging PVK Inc. mislabels Scarpetta pasta sauces as containing “No Preservatives” despite including citric acid on the ingredient list. Jocelyn v. PVK Inc., No. 18-427 (E.D.N.Y., filed January 22, 2018). The plaintiff alleges that she relied on the representation on the container and would not have purchased the sauce had she known it contained preservatives. Claiming deceptive and unfair trade practices, false advertising and common-law fraud, the plaintiff seeks class certification, injunctive relief, restitution, disgorgement, damages, corrective advertising and attorney’s fees.
Category Archives Litigation
An Illinois federal court has dismissed a franchisee’s lawsuit alleging KFC wrongfully prevented him from advertising halal chicken, finding the franchise contract gave KFC control over advertising and promotional material. Lokhandwala v. KFC Corp., No. 17-5394 (N.D. Ill., entered January 23, 2018). Although the plaintiff alleged that KFC's prohibition on advertising dietary claims contradicted the earlier representations KFC had made to him, the court found that the franchise agreement gave KFC express power to change its advertising policies. In particular, the contract stated that “[n]o failure, forbearance, neglect or delay of any kind or extent on the part of KFC in connection” with enforcing and exercising its rights “shall affect or diminish KFC’s right to strictly enforce . . . this Agreement at any time.” The court ruled that given the contract’s “unambiguous language on advertising” as well as its integration clause, it would not consider extrinsic evidence of KFC’s…
A New York federal court has held that a vegetarian who alleged Buffalo Wild Wings charged a premium price for non-meat food items fried in beef tallow failed to plead any injury in her complaint because loss of the purchase price does not constitute “actual injury” under state consumer-protection law. Borenkoff v. Buffalo Wild Wings, No. 16-8532 (S.D.N.Y., entered January 19, 2018). Although it was a “close call,” the court held that the plaintiff had standing to sue, finding “some ‘concrete and particularized’ injury in paying for one item and receiving another, even if you ultimately receive the ‘benefit of your bargain’ from a purely objective economic standpoint.” However, the alleged economic injury was insufficient to state a claim, the court held, because the plaintiff failed to explain “exactly how” the cost of the food was affected by the use of beef tallow or why she believed she paid a premium.…
A New Jersey federal court has denied class certification to a group of consumers alleging that Tropicana Pure Premium orange juice was mislabeled and misbranded because the maker adds natural flavoring to the product in violation of the U.S. Food and Drug Administration's standard of identity for pasteurized orange juice. In re Tropicana Orange Juice Mktg. & Sales Practices Litig., No. 11-7382 (D.N.J., entered January 22, 2018). The court ruled that the plaintiffs’ unjust enrichment, express warranty and New Jersey Consumer Fraud Act claims required individualized proof; thus, individual issues predominated over those of the class. In addition, the plaintiffs were unable to demonstrate that the proposed class was ascertainable—in particular, the court found, it was unclear whether any of the “dozens, if not hundreds of retailers” could confirm with certainty whether they possessed consumer data for the class period. If a consumer purchased the juice from a retailer that…
A California federal jury has awarded $710,001 to Grumpy Cat Ltd., which had alleged that a beverage company infringed its copyright and trademarks. Grumpy Cat Ltd. v. Grenade Beverage LLC, No. 15-2063 (C.D. Cal., verdict entered January 23, 2018). The dispute arose after Grumpy Cat licensed its trademark to Grenade Beverage LLC for a line of iced-coffee products; Grumpy Cat filed suit when it learned that Grenade was also using Grumpy Cat’s likeness on coffee products and apparel—which fell outside the scope of the companies' agreement—and had registered the domain name grumpycat.com. The jury awarded Grumpy Cat $1 for breach of contract and $710,000 for copyright and trademark violations. The parties agreed before trial that the court would rule on the cybersquatting and accounting claims as well as Grenade’s counterclaims for declaratory relief for ownership and non-infringement of trademark, copyright and domain name.
Iceland has filed a notice of opposition to a trademark application filed by an Ecuadorean company for use of the mark “I ' CELAND” for vodka, arguing that consumers will be confused as to the origin of the product, which features a label with images of snow-capped mountains and the term “Iceland Vodka.” Republic of Iceland, Ministry for Foreign Affairs v. Cosmica Cia. Ltda., No. 91239021 (T.T.A.B., notice filed January 17, 2018). Iceland’s Ministry for Foreign Affairs coordinates the exports of Icelandic businesses and alleges it is responsible for protecting the “Iceland” mark, which has been used for various Icelandic alcohol products, including vodka. Iceland registered its mark with the U.S. Patent and Trade Office in 2009.
The maker of Luigi’s Real Italian Ice is facing a proposed class action alleging that each Luigi's cup contains 5.5 ounces of the product despite packaging listing the contents as six ounces. Orbach v. J&J Snack Foods Corp., No. 18-0321 (S.D.N.Y., filed January 12, 2018). The plaintiffs allege that both the outer packaging and the cup lids indicate that each cup contains six fluid ounces. Claiming breach of warranties, unjust enrichment, violations of New York and Massachusetts laws governing deceptive acts and practices, false advertising and fraud, the plaintiffs seek class certification, damages, restitution, injunctive relief and attorney’s fees.
Delicious Inc. has filed a lawsuit alleging Texas restaurant Delicious Tamales and its owners have infringed on Delicious Inc.'s trademark. Delicious Inc. v. Lopez, No. 18-0041 (W.D. Tex., filed January 12, 2018). Delicious Inc. argues that it has owned the federal rights to the "Delicious Tamales" mark since 2012 in the categories of "Tamales, bunuelos, hot sauce and tortillas" as well as "Chile con carne, and Mexican barbecue, namely, prepared meat." In 2017, the defendants opened a restaurant under the Delicious Tamales name, "brazenly located" a "mere one mile from Plaintiff's long-established location" in San Antonio. Delicious Inc. alleges it received "numerous complaints from customers regarding the quality of the food sold at Defendant's location" because they believed "that both locations were owned by the same individuals or company." Alleging violations of the Lanham Act as well as state trademark infringement, the plaintiffs seek a permanent injunction, damages, costs and attorney's…
A consumer has filed a lawsuit alleging Schwan's Co. falsely advertises Mrs. Smith's Original Flaky Crust Pies as made with “real butter” despite allegedly containing a vegetable and butter shortening blend. Leguette v. Schwan’s Co., No. 17-7599 (E.D.N.Y., filed December 31, 2017). The plaintiff alleges that she bought a Mrs. Smith's apple pie because the package prominently displayed the statements “Made With Real Butter,” “No Artificial Sweeteners, Dyes or Flavors” and "No High Fructose Corn Syrup.” The Nutrition Facts panel disclosed that the product contains a “Shortening Butter Blend (Palm Oil, Butter [Cream, Salt])” and corn syrup. Claiming violations of New York’s General Business Law, breach of warranties and unjust enrichment, the plaintiff seeks class certification, injunctive relief, damages and attorney’s fees.
A federal court has dismissed a lawsuit alleging Earth’s Best falsely labels its infant and toddler foods as organic, asserting that the foods contain at least 29 ingredients not permitted to be labeled as such under the Organic Food Production Act of 1990 (OFPA). Organic Consumers Ass’n v. Hain Celestial Grp., Inc., No. 16-0925 (D.D.C., entered January 3, 2018). Although the court found the plaintiff advocacy group had standing to sue because it expended resources to challenge Hain Celestial’s labeling practices, it determined that the plaintiff’s claims were preempted by the OFPA. The court found that “in enacting the OFPA, Congress could not have been clearer about its purposes” to establish national standards for organically produced products, ensure organic products met a consistent standard and facilitate interstate commerce of organic foods. The plaintiff’s lawsuit, the court held, was premised on an allegation that Hain Celestial violated District of Columbia law by mislabeling…
