Yum! Brands Inc.’s KFC has announced on its Chinese-language website that it has filed lawsuits against three Chinese media companies for allegedly spreading rumors that the company has bred its chickens to have eight legs and six wings. The complaint, filed in Shanghai Xuhui District People’s Court, reportedly alleges that the media companies disseminated false information on social media about KFC’s food quality, including digitally altered photos of deformed chickens and rumors of maggots in a delivery order. KFC has more than 4,600 restaurants in China, accounting for about one-half of its revenue. The company reportedly alleges that 4,000 defamatory messages were viewed more than 100,000 times and seeks 1.5 million yuan, or about US$242,000, from each media company as well as an apology. See The Wall Street Journal and Reuters, June 1, 2015. Issue 567
Category Archives Litigation
Absolut Co. has filed a complaint and a motion for an injunction against Happy Hearts Wine LLC, a New York City importer of Israeli wine, after Absolut noticed a Certificate of Label Approval filed with the Alcohol and Tobacco Tax and Trade Bureau for “Kahfua,” which it alleges is too close to Kahlua®. Absolut Co. Aktiebolag v. Happy Hearts Wine, LLC., No.15-3224 (E.D.N.Y., motion filed June 3, 2015). Happy Hearts’ Kahfua, a “coffee expresso [sic] liqueur,” is packaged in a similar brown bottle with a similar yellow and red label written in a similar script to Kahlua®, Absolut argues in its motion. It further alleges that Happy Hearts has acted with bad faith by infringing Absolut’s trademarks. “Simply stated, there can be no ‘innocent explanation’ for such a blatant knockoff,” the motion asserts. In addition to trademark infringement, Absolut alleges that Happy Hearts is engaging in trademark counterfeiting, which requires…
Two plaintiffs have filed a lawsuit against Gerber Products Co. alleging that the company misrepresented its Gerber® Good Start® infant formula by advertising it as the “first and only formula whose consumption reduces the risk of infants developing allergies.” Hasemann v. Gerber Prods. Co., No. 15-2995 (E.D.N.Y., filed May 21, 2015). The complaint echoes a similar lawsuit against Gerber pending in New Jersey federal court. The plaintiffs assert that Gerber advertises its product as providing health benefits through partially hydrolyzed whey protein despite an alleged U.S. Food and Drug Administration denial in 2005 that Gerber’s formula aids against allergy development. The plaintiffs seek class certification and damages of more than $5 million. Additional details about Gerber’s successful motion to receive medical records in the analogous case appear in Issue 562 of this Update. See Legal Newsline, June 2, 2015. Issue 567
A ban on growing genetically modified organisms (GMOs) in Jackson County, Oregon, took effect on June 5, 2015, after a federal court refused to block the voter-approved statute at the request of alfalfa farmers who have grown GMO crops. Schultz Family Farms LLC v. Jackson Cty., No. 14-1975 (D. Ore., Medford Div., order entered May 29, 2015). The court noted that the issue of GMO farming encompasses several broad questions about the American food supply that it would not attempt to answer; its decision “is simply about the statutory construction of the Right to Farm Act, Jackson County Ordinance 635, and Oregon Senate Bill 863.” The court first describes Oregon’s Right to Farm Act, finding that “in the conflicts that arise between active, functioning farms and new, neighboring suburbanites, who inevitably find the farming practices loud, smelly, invasive, or simply irritating, the Oregon legislature has decided, as have many states,…
A Georgia federal court has upheld the convictions of Stewart Parnell, Michael Parnell and Mary Wilkerson, former Peanut Corp. of America (PCA) executives, after an investigation into the defendants’ claims of jury misconduct. United States v. Parnell, 13-12 (U.S. Dist. Ct., M.D. Ga., order entered May 28, 2015). The three were convicted on charges related to a 2008-2009 Salmonella outbreak that sickened hundreds of people nationwide and was linked to nine deaths. After a jury convicted them, the defendants argued that some jury members had conducted outside research, based on allegations made to them by Juror 34. The court rejected their argument, noting, “Throughout the sealed proceedings held on alleged juror misconduct, the court only uncovered one juror who could be termed biased: Juror 34.” Further, “the evidence against the Defendants was overwhelming,” the court said. The defendants’ attorney told media that it planned to appeal the ruling. Additional details about…
Franciscan Vineyards has filed an opposition against Home Box Office, Inc.’s (HBO’s) 2014 trademark application for “Three-Eyed Raven,” a beer collaboration between HBO and Ommegang Brewery based on the network’s “Game of Thrones” series. U.S. Trademark Application Serial No. 86309080 (notice of opposition filed May 11, 2015). Franciscan owns trademarks used by Ravenswood Winery, including “Ravens,” “Ravenswood” and a drawing of three black ravens forming a circle. The winery asserts that consumers are likely to be confused and challenged HBO’s intention to use the “Three-Eyed Raven,” alleging that the company had no intention to use the mark and, further, had committed fraud when it told the U.S. Patent and Trademark Office that it did. Ommegang began selling Three-Eyed Raven, its fifth collaboration with HBO, in April 2015. Issue 566
H.J. Heinz Co. has filed a lawsuit against Boulder Brands USA seeking to vacate and reverse a Trademark Trial and Appeal Board (TTAB) decision finding that the marks representing Heinz’s Weight Watchers Smart Ones® and Boulder’s Smart Balance® are sufficiently distinct, allowing both to exist. H.J. Heinz Co. v. Boulder Brands USA, Inc., No. 15-0681 (W.D. Penn., filed May 26, 2015). In its opposition to the Smart Balance® mark, Heinz asserted that the Smart Ones® mark was famous and would be diluted by Smart Balance®, but based on insufficient evidence TTAB disagreed in its March 2015 decision. In addition to the reversal, Heinz seeks a declaration of likelihood of confusion and a declaration of dilution under the Lanham Act and asks the court to direct the U.S. Patent and Trademark Office to invalidate the Smart Balance® mark. Issue 566
A group of consumers has filed a putative class action against Abbott Laboratories, Inc. alleging the company misrepresents its Similac Advance® Organic Infant Formulas because several of the ingredients are banned by federal law from use in food labeled “organic.” Marentette v. Abbott Labs., Inc., No. 15-2837 (E.D.N.Y., filed May 15, 2015). The plaintiffs challenge the products’ inclusion of beta carotene, biotin, taurine and lutein, among several other ingredients, and additionally assert that “at least one ingredient in these infant formulas is produced using genetically engineered materials—a practice forbidden in organic foods.” The complaint contends that Abbott knew that consumers would pay more for organic products and willfully misled them. The plaintiffs seek class certification, damages and an injunction for alleged violations of New York and California consumer-protection statutes, unjust enrichment and breach of warranty. Since the complaint was filed, Abbott has begun offering a version of Similac Advance® manufactured…
Amid ongoing recalls of Blue Bell Creameries’ ice cream products, a plaintiff has filed a lawsuit alleging that the company is liable for his severe listeriosis infection he says stems from the consumption of several varieties of contaminated products. Shockley v. Blue Bell Creameries Inc., No. 15-425 (W.D. Tex., filed May 19, 2015). The plaintiff alleges that Listeria monocytogenes infected his blood, then brain, resulting in permanent brain damage and leaving him near death. The complaint documents the recent Listeria outbreak subsequently linked to Blue Bell’s products by the Centers for Disease Control and Prevention. “Blue Bell utterly failed to design and implement sanitation and safety programs that would have prevented the sort of infestation and contamination that occurred at its facilities over a period of years,” the plaintiff asserts. He seeks compensatory, economic and punitive damages for strict product liability, negligence, misrepresentation and breach of warranties. Issue 566
StarKist Co. and a class of consumers have filed a proposed settlement agreement for $12 million in a case alleging that the company underfilled its cans of tuna. Hendricks v. StarKist Co., No. 13-0729 (N.D. Cal., motion filed May 14, 2015). Under the agreement, StarKist will pay $8 million in $25 cash increments and provide $4 million in $50 vouchers for StarKist-branded products. The agreement indicates that “tens of millions of purchasers” are members of the class but predicts that “a claim rate of more than 5% will be difficult to achieve.” Thus, the amounts of the settlement allow for 80,000 voucher claims and 120,000 cash claims. “This is an excellent result for class members compared to their likely recovery should they prevail at trial,” the agreement stipulates. Issue 566
