New Claims Filed: Medical Monitoring Sought for Animals from Pet Food Co., Foie Gras Ban Challenged, Trade Secret Dispute over Beer Bottle Design, Challenge to “Guiltless” Alcohol Beverage Trademark

A New York resident has filed a putative class action against Diamond Pet Foods and Amazon.com, seeking medical monitoring for pets that consumed recalled Salmonella-tainted pet food. Cohen v. Schell & Kampeter, Inc., d/b/a Diamond Pet Foods, No. 12-3299 (E.D.N.Y., filed July 2, 2012). Plaintiff Steven Cohen alleges that he fed his dogs Taste of the Wild® brand pet food, purchased from Amazon.com, and that they became ill, vomiting frequently, “which caused damage to Plaintiff’s property.” Seeking to certify a nationwide class and statewide subclass of consumers, the plaintiff alleges breach of implied and express warranty, strict products liability, violations of state consumer fraud laws, negligence, and unjust enrichment. In addition to medical monitoring, the plaintiff seeks actual damages or restitution, attorney’s fees, costs, and interest.

A Canadian non-profit representing the interests of foie gras producers, a New York-based foie gras producer and a company that operates restaurants in California have filed a lawsuit challenging the constitutionality of the state’s ban on the sale of any product that is the result of force-feeding a bird for the purpose of enlarging its liver beyond normal size. Association des Éleveurs de Canards et d’Oies du Québec v. Harris, No. 12-5735 (C.D. Cal., filed July 2, 2012). The plaintiffs contend that the law violates the Due Process Clause because it is void for vagueness, that is, the law “does not provide a person of ordinary intelligence fair notice of what amount of food he may cause a duck to consume,” and imposes significant penalties if the ducks sold in California “are deemed to be products of ducks fed more than section 25982 allows.” They further allege that the imposition of a penalty without requiring mens rea for conduct not involving public health or safety constitutes a due process violation and that the prohibition on the sale of products legal in other states and countries violates the Commerce Clause.

Two Dutch companies have filed suit against Anheuser-Busch InBev, alleging that the company stole their trade secret for the design of a “bag in a bottle” beer bottle that can be used to re-create the draft beer experience at home. AFA Dispensing Group B.V. v. Anheuser-Busch InBev S.A., No. 1222-cv-09165 (St. Louis Cir. Ct., Mo., filed July 5, 2012). According to the complaint, the plaintiffs discussed the design in meetings to explore a business partnership with Anheuser-Busch representatives who later indicated they were not interested in further pursuing a bag-in-bottle beer dispensing system. The plaintiffs allege that they later learned that Anheuser-Busch was pursuing such technology and filed patent applications for its Draftmark® system relying on plaintiffs’ trade secret. Alleging violation of the Missouri Uniform Trade Secrets Act and breach of contract, the plaintiffs seek $25,000 in compensatory damages, $150 million in punitive damages, a permanent injunction, attorney’s fees, and costs.

U.S. and Canadian companies that sell and distribute lower calorie and carbohydrate Lulu B.® cocktails in bottles referring to the products as a “guiltless indulgence” and “guilt-free” have filed a lawsuit against a Wisconsin company that claims to have registered the “Guiltless” trademark for non-alcoholic cocktail mixers and applied to register the trademark for wine coolers. The Wine Group, LLC v. Martita’s Mixers, LLC, No. 12-1753 (E.D. Cal., filed July 2, 2012). The plaintiffs seek a declaration that the trademark application is void because the defendant did not have a bona fide intention to use the mark on wine coolers and that their use of the term “guiltless” does not constitute unfair competition because the packaging and goods are dissimilar and the term “is not a unique identifier.”