The Sixth Circuit Court of Appeals has determined that the Roskam Baking Co. did not infringe a trademark by using the term “Texas Toast” in selling its packaged croutons. T. Marzetti Co. v. Roskam Baking Co., No. 10-3784 (6th Cir., decided May 25, 2012). Marzetti apparently began using the Texas Toast mark for its frozen garlic bread in 1995 and then adopted the term for use with a crouton product sold in 2007. The company attempted to register the mark in 2009, but the applications were initially denied “because of the potential likelihood of confusion with the mark Texas toast for bakery goods.” Thereafter, they were approved for publication as, “at a minimum, suggestive.” The defendant filed an opposition to the trademarks in 2010, and Marzetti, learning about the company’s Texas Toast croutons, filed this trademark infringement action. The Sixth Circuit agreed with the district court that the mark is not…
Category Archives State Courts
A California resident has filed a putative class action against Starbucks Corp. alleging that the company deceived consumers by failing to disclose that some of its products were made with cochineal extract, a common food-coloring ingredient made from crushed insects. Anderson v. Starbucks Corp., No. BC485438 (Cal. Super. Ct., Los Angeles Cty., filed May 25, 2012). Seeking to represent a nationwide class and statewide subclass of consumers, the plaintiff claims that she and the class members, had they known about the company’s use of the ingredient, would not have purchased the products for a number of reasons, including objections to consuming animal products, allergic responses to the ingredient or “sheer disgust.” Alleging violations of the California Unfair Business Practices Act and False Advertising Act, unjust enrichment, fraud by omission/concealment, and violation of California’s Consumers Legal Remedies Act, the plaintiff seeks disgorgement, restitution, compensatory and punitive damages, payment to a cy pres fund,…
The California Agricultural Labor Relations Board has filed a petition for injunctive relief against a Ventura County strawberry farming operation alleging unfair labor practices and seeking to stop the respondent from interfering with employees’ free exercise of rights under the labor code. State v. Montalvo Farms, LLC, No. 56-2012-00416985 (Cal. Super. Ct., Ventura Cty., filed May 9, 2012). According to the petition, the farm hires Mixteco farmworkers, most of whom speak neither English nor Spanish. Due to language constraints, these workers allegedly endure “worse working conditions than other agricultural workers, including pervasive undercounting of their strawberry boxes picked, supervisors who charge for rides to work, injuries on the job that are ignored, and outright discrimination due to their inability to speak Spanish fluently.” One Mixteco worker, who is fluent in Mixteco and Spanish, apparently worked at the farm for several years and became a spokesperson for the Mixteco workers. He…
A New Jersey resident from Scotland, who began working in 2000 for seafood company North Landing Ltd. at the invitation of its former owner, has filed a wrongful discharge suit against the company, its new owners and a supervisor claiming that her concerns over the company’s purportedly illegal practices, when brought to the attention of her supervisor, resulted in him verbally berating and slapping her, thus creating a hostile work environment that she could no longer tolerate. Chadwick v. North Landing Ltd., No. L1776-12 (N.J. Super. Ct., Passaic Cty., filed April 26, 2012). Among other matters, the plaintiff alleges that the company processed and sold farm-raised salmon treated for sea lice with Salmosan, a chemical that she claims the Food and Drug Administration (FDA) has not approved. She contends that when she brought this to her supervisor’s attention, he told her to “delete computer records showing the fish having been…
A California superior court has dismissed with prejudice putative class claims filed against McDonald’s Corp. seeking to enjoin the company from advertising Happy Meals® to children featuring toys. Parham v. McDonald’s Corp., No. 10-506178 (Cal. Super. Ct., San Francisco Cty., decided April 4, 2012). Additional information about the case appears in Issues 375, 391 and 420 of this Update. While the court did not explain why it sustained the company’s demurrers to the plaintiff’s first, second and third causes of action, it did so without giving the plaintiff leave to amend her complaint. According to the Center for Science in the Public Interest (CSPI), which was representing the plaintiff, consideration is being given to filing an appeal. In its memorandum of law in support of its demurrers, the company argued that the plaintiff failed to state a claim for relief under the state’s Unfair Competition Law, Consumers Legal Remedies Act…
Two California men who allegedly worked as cooks at a Riverside County Olive Garden have filed a putative class action as private attorneys general under the California Labor Code, claiming that they performed off-the-clock work, were not provided meal or rest breaks as required by law or paid overtime, and had the cost of shoes deducted from their paychecks. Romo v. GMRI, Inc., No. RIC1203891 (Cal. Super. Ct., Riverside Cty., filed March 19, 2012). They also claim that their employer failed to pay them promptly as required by law when they left their jobs. They seek to represent all non-exempt or hourly paid Olive Garden employees in the state. According to the complaint, the off-the-clock and overtime work the plaintiffs performed was necessitated due to the volume of work and frequent understaffing. Claiming unpaid overtime, unpaid minimum wages, non-compliant wage statements, unlawful deductions, and wages not timely paid upon termination,…
A Mississippi appeals court has determined that neither McDonald’s Corp. nor one of its franchisees could be held liable for injuries allegedly resulting from a spatula-wielding cashier’s response to a dispute with a customer. Parmenter v. J&B Enters., Inc. No. 2010-CA-01251 (Miss. Ct. App., decided February 21, 2012). Affirming the trial court’s grant of summary judgment and directed verdict in favor of the defendants, the court determined that McDonald’s did not exercise the requisite level of control over the employee to be liable under the doctrine of respondeat superior and that the employee was not acting within the scope of her employment when she engaged in the altercation, thus rendering the franchisee not liable under the same doctrine. The plaintiff also brought claims of negligent hiring and training, and the appeals court found insufficient evidence to support either claim. The court further ruled that the trial court properly disqualified the plaintiff’s…
According to a news source, the industry interests that lost their challenge to the listing of 4-MEI as a chemical known to California to cause cancer have filed an appeal in the Third District Court of Appeals. Cal. League of Food Processors v. OEHHA, No. C070406 (Cal. Ct. App., 3rd Dist., appeal filed February 10, 2012). The chemical is commonly found in foods such as soy sauce, roasted coffee and the caramel coloring added to colas and beer. California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) added the chemical to the Proposition 65 (Prop. 65) list in January 2011, and a California Superior Court rejected the challenge filed by the California League of Food Processors, American Beverage Association, Grocery Manufacturers Association, and National Coffee Association in November. Additional information about the court’s ruling appears in Issue 420 of this Update. The plaintiffs reportedly argue that appellate intervention is needed “before…
Spike, LLC, a company that makes and distributes energy drinks, has filed a lawsuit against the company it hired to destroy 18 pallets of products that Spike determined should be removed from the marketplace as unfit for sale, claiming that the recycling company failed to destroy the products and, in fact, sold them “thereby undercutting Spike’s sales.” Spike, LLC v. Nationwide Recycling, LLC, No. 12CV00111 (Wis. Cir. Ct., Waukesha Cty., filed January 10, 2012). Seeking compensatory and treble damages, attorney’s fees, and interest, the plaintiff alleges conspiracy; breach of contract; property loss through fraudulent misrepresentation; misrepresentation: intentional deceit; misrepresentation: strict responsibility; misrepresentation: negligence; and conversion. According to the complaint, Spike paid the company $10,000 to destroy 13,617 cases of energy drink products, which had a value of about $900,000.
A California court has determined that California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) complied with the law in determining that 4-methylimidazole (4-MEI), a chemical present in many common foods and beverages, is a carcinogen known to the state to cause cancer. Cal. League of Food Processors v. OEHHA, No. 34-2011-80000784 (Cal. Super. Ct., decided November 21, 2011). As noted by the court, “The chemical is used in the manufacture of various products like pharmaceuticals, and it is a by-product of fermentation found in food products like soy sauce, roasted coffee, and caramel coloring added to colas and beer.” A number of trade associations representing an array of food and beverage interests challenged the listing, which will require product warnings under the state’s Safe Drinking Water and Toxic Enforcement Act of 1986 (Prop. 65). They claimed that OEHHA’s reliance on a National Technology Program technical report on 4-MEI did…
