A plaintiff’s “cursory, formulaic recitation” of her purchase of Jelly Belly Candy Co.'s Sport Beans did not include enough factual allegations to establish a claim for relief, a California federal court has ruled. Gomez v. Jelly Belly Candy Co., No. 17-0575 (C.D. Cal., order entered June 8, 2017). The plaintiff had alleged the candy maker’s use of the term “evaporated cane juice” (ECJ) on the packaging misled her about the product's sugar content. Additional details on the complaint appear in Issue 629 of this Update. “Absent from the Complaint are any factual allegations concerning the circumstances of Gomez’s purchase of the product, how she intended to use the product, whether she in fact expected a sugar-free product, whether she thought ‘evaporated cane juice’ was juice as opposed to sugar, and whether she consumed the product,” the court said, granting Jelly Belly's motion to dismiss. However, the court ruled that Gomez…
Category Archives Litigation
Diageo has filed a trademark-infringement and dilution lawsuit against a competitor that allegedly mimicked Diageo’s Bulleit® bottle shape and labeling. Diageo N. Am. V. W.J. Deutsch & Sons, No. 17-4259 (S.D.N.Y., filed June 6, 2017). Diageo asserts that Bulleit® is sold in a “distinctive canteen-shaped bottle featuring embossed lettering” on the label, meant to “evoke the rugged look and feel of the American Frontier.” The complaint alleges that after W.J. Deutsch bought the Redemption whiskey product line, it redesigned the products to have a “clear canteen-shaped glass bottle,” an embossed brand name and a cork bottle cap with a black top. Claiming trademark and trade dress infringement and dilution, Diageo seeks injunctive relief, damages and attorney’s fees. Issue 638
A consumer has filed a putative class action alleging Chipotle Mexican Grill, Inc. failed to take measures to prevent an April 2017 data breach in which hackers used malware to steal customer data from the magnetic stripes on payment cards. Baker v. Chipotle Mexican Grill, Inc., No. 17-1134 (C.D. Cal., filed June 9, 2017). The complaint alleges that Chipotle failed to take “adequate and reasonable measures” to protect its data systems, which reportedly contain personally identifiable information in addition to payment card data. The plaintiff seeks class certification, equitable relief, damages and attorney’s fees. Issue 638
A California federal court has decertified a class and granted partial summary judgment in an action alleging Kraft Foods Group falsely advertised its fat-free cheddar cheese as “natural.” Morales v. Kraft Foods Grp., No. 14-4387 (C.D. Cal, order entered June 9, 2017). Details on previous decisions in the case appear in Issues 570 and 625 of this Update. The court first granted summary judgment for Kraft as to restitution because the plaintiffs failed to provide sufficient evidence about their potential willingness to pay a premium based on the “natural cheese” label and therefore could not establish a basis for calculating restitution for the class. Turning to the issue of whether the consumers' belief that the cheese was "natural" was material to their purchasing decisions, the court determined that the plaintiffs' expert testimony created a triable issue of fact that could not be dismissed during the summary-judgment phase. Denying that portion…
The European Court of Justice (ECJ) has ruled that plant-based products cannot use milk- or dairy-related terms for product names or in marketing because the terms are “exclusively” reserved for animal-milk products under EU law. Verband Sozialer Wettbewerb eV v. Tofu Town.com GmbH, Case C 422/16 (order entered June 14, 2017). Verband Sozialer Wettbewerb eV, a German trade group, asked a regional German court for an injunction against Tofu Town, a producer of vegetarian and vegan products marketed with names such as “veggie cheese,” “Soyatoo tofu butter” and “rice spray cream.” The regional court referred the dispute to the Court of Justice for a preliminary ruling. The court found that EU Regulation 1308/2013 reserves the term “milk” for animal-derived products such as cheese, cream, butter, yogurt and kefir, and further, non-bovine products must specify the animal species from which the milk originates because the regulation defines milk as the product…
Food & Water Watch, a consumer advocacy group, has filed suit against the U.S. Department of Agriculture (USDA) and the Food Safety and Inspection Service over the agencies’ denial of the group’s Freedom of Information Act (FOIA) requests asking for the names of companies that opted to participate in the New Poultry Inspection System (NPIS). Food & Water Watch, Inc. v. U.S. Dep’t of Agric., No. 17-1133 (D.D.C., filed June 9, 2017). USDA implemented the optional NPIS in an effort to reduce rates of foodborne illness attributable to chicken and turkey contaminated with Salmonella and Campylobacter. Food & Water Watch requested the identities of the companies that chose to participate in NPIS, but their FOIA requests were denied on the grounds that “the responsive records consist solely of confidential future business plans.” Alleging violations of FOIA, the plaintiff is seeking an order for disclosure of the requested records and attorney’s…
A Pennsylvania appeals court has upheld Philadelphia’s tax on the distribution of sugar-sweetened beverages (SSBs), rejecting arguments that it is a duplicate sales tax or is preempted by state tax laws. Williams v. City of Philadelphia, Nos. 2077, 2078 (Pa. Commonwealth Ct., order entered June 14, 2017). The court held that the subject matter of the tax—the non-retail distribution of SSBs—is “distinct” from the sales tax collected when the beverages are sold to a retail purchaser, and thus the distribution tax is not duplicative of an existing tax. In addition, the court said, the tax is not preempted under state law because Pennsylvania cities have the right to tax transactions that are not already subject to state tax or license fees. Nor is it preempted by the federal Food Stamp Act or related tax laws because the tax is levied on the distributors of SSBs and “no recipient of program…
According to a news source, a California appeals court indicated during oral argument that it would likely reverse the dismissal order of a lower court in a wrongful death action alleging that Dole Food Co. paid Colombian paramilitaries to kill 170 people near South American banana plantations. Gomez v. Dole Food Co., Inc., No. B242400 (Cal. Ct. App., 2d App. Div.). During the June 12, 2013, hearing, the court reportedly said “legal problems” with the trial court’s dismissal were sufficient to warrant reversal. In 2012, the lower court dismissed the suit after the plaintiffs’ lawyers failed to file a new complaint within 30 days after an appeals court ruling allowing them to do so became final. Plaintiffs’ counsel apparently claimed that they were unaware of the deadline imposed under California procedural rules and that the court erred by dismissing the case on the basis of Dole’s purported ex parte application.…
A pastry chef and food blogger has filed a copyright-infringement lawsuit against the owner of Food Network, alleging the channel copied her video tutorial for “Snow Globe Cupcakes.” LaBau v. Television Food Network G.P., No. 14-4077 (C.D. Cal., filed June 1, 2017). Elizabeth LaBau, owner of a website that provides recipes and tutorials for desserts, asserts that she created a tutorial for making edible snow globes using gelatin sheets and balloons in 2015, and the post caught enough attention for the cupcakes to become her "signature recipe." In November 2016, she created a tutorial video explaining how to create the Snow Globe Cupcakes, then learned in December 2016 that Food Network had published a similar video illustrating how to prepare the cupcakes. "The Food Network video copied numerous copyrightable elements of Plaintiff's work precisely, including but not limited to choices of shots, camera angles, colors, and lighting, textual descriptors, and…
A New York federal court has denied a motion to dismiss a patent infringement and trade dress suit filed by candy maker The Topps Co. alleging that a competitor copied its Juicy Drop lollipop. The Topps Co. v. Koko’s Confectionery & Novelty, Inc., No. 16-5954 (S.D.N.Y., order entered June 7, 2017). Topps alleged that Koko’s Squeezy Squirt Pop copied a design that allows the user to spray a lollipop with flavored liquid using a two-chamber mechanism; further, Koko’s used a similar logo, font and color on the packaging and similar names for the candies’ flavors, the complaint asserted. The court’s decision followed oral arguments over whether the positioning of the chambers of the mechanism relative to the user was infringing. Topps’ attorney reportedly told the court, “It can’t be the law that just because you hold it at 90 degrees, it’s not an infringement.” See Law360, June 6, 2017. …
