A Texas-based tomato producer has sued a Canadian company in federal court alleging that its packaging and label for grape tomatoes infringes the Nature Sweet Cherubs™ patents, issued in 2010 and 2011, and trademarks, in use since 2007. NatureSweet, Ltd. v. Mastonardi Produce Ltd., No. 12-1424 (N.D. Tex., filed May 8, 2012). According to the complaint, the defendant’s “Angel Sweet” label copies the Sweet Cherubs™ label by using similar colors and a “winged tomato design mark.” Claiming that its mark, in which the company has made a considerable investment, is famous and distinctive, the plaintiff alleges a likelihood of confusion among consumers by defendant’s use of similar marks and packaging. The plaintiff also claims that the defendant’s grape tomatoes, in contrast to its own, “do not have the same consistent great taste throughout the year.” Alleging federal trademark infringement, dilution and unfair competition; unjust enrichment; and design patent infringement, the…
The Sixth Circuit Court of Appeals has determined that the red dripping wax seal that Maker’s Mark Distillery has registered as a trade dress element used on its Kentucky bourbon bottles is protected under trademark law due to its strength and distinctiveness in the marketplace, thus upholding a lower court ruling that Jose Cuervo infringed the mark by using a similar element on its tequila bottles. Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc., Nos. 10-5508/5586/5819 (6th Cir., decided May 9, 2012). With the apparent care of a connoisseur, the opinion’s author opens with a detailed history, part legend, of the birth of bourbon and explains how Maker’s Mark came to use the red dripping wax seal on its bottles. According to the court, the evidence fully supported the district court’s evaluation of the strength of the mark and its balancing of the factors regarding consumer confusion over Jose Cuervo’s…
New York and New Jersey residents have filed a putative class action in an Illinois federal court against the company that makes a line of kefir dairy products, alleging that they are falsely promoted as providing “clinically proven therapeutic benefits for various health conditions.” Keatley v. Lifeway Foods, Inc., No. 12-3521 (N.D. Ill., filed May 8, 2012). According to the complaint, Lifeway claims, without adequate proof, that its kefir products containing ProBoost, “an exclusive blend of live and active probiotic cultures,” can support immunity, enhance digestion, boost well-being, alleviate diarrhea, and otherwise address autoimmune disorders, bad breath, celiac disease, Crohn’s and colitis, high cholesterol, immune deficiency, infantile colic, irritable bowel syndrome, lactose intolerance, seasonal allergies, and yeast infections. The plaintiffs contend that they would not have purchased the products if they had known that ProBoost products “did not have the quality, health benefits or value as promised.” Seeking to certify a…
A coalition of animal rights organizations has reportedly filed a lawsuit against the U.S. Department of Agriculture (USDA) in federal court, alleging that the agency has violated the Poultry Products Inspection Act by allowing foie gras to be sold to consumers. Animal Legal Defense Fund v. USDA, No. __ (C.D. Cal., filed May 9, 2012). According to the plaintiffs, “the USDA is responsible for condemning all poultry products that come from diseased birds. Foie gras consists of the pathologically diseased livers of ducks who are force-fed massive amounts of grain, inducing the disease of hepatic lipidosis, which causes their livers to swell to ten times their normal size.” The organizations have petitioned the agency in the past to require warning labels that would state “NOTICE: Foie gras products are derived from diseased birds.” And they now cite a recent study that purportedly linked the consumption of foie gras to secondary…
A federal court in Maryland has dismissed, under the first-to-file rule, a lawsuit brought by a plaintiff characterized as a “frequent flyer in the United State judicial system,” finding that five similar putative class action lawsuits against the defendants, three of which were filed before the plaintiff filed his complaint, are currently pending in a federal court in California. Hinton v. Naked Juice Co., No. 11-3740 (D. Md., decided April 30, 2012). The plaintiff, who has apparently filed at least 43 other federal civil lawsuits, all dismissed as frivolous, sought $100,000 in damages from the defendants, claiming that they label their beverages as “Non-GMO” and “natural” while using genetically modified and synthetic ingredients. He filed the complaint in state court, and it was removed to federal court. After the defendants sought to dismiss the case or transfer it to California on convenience grounds, the plaintiff filed a motion for remand.…
The Second Circuit Court of Appeals has determined that a New York law enacted in 2004, following the invalidation of a prior version, does not violate the Establishment or Free Exercise Clauses of the U.S. Constitution and is not unconstitutionally vague. Commack Self-Service Kosher Meats, Inc. v. Hooker, No. 11-3517 (2d Cir., decided May 10, 2012). The previous law, which defined “kosher” in terms of orthodox Hebrew religious requirements and required adherence to them, was found to (i) advance religion, i.e., the dietary restrictions of Orthodox Judaism, and (ii) inhibit religion “by preventing labeling of food products as kosher that did not meet the Orthodox Jewish religious requirements.” The newer version simply required those marketing their food products as “kosher” to label them as kosher and to “identify the individuals certifying their kosher nature.” The new law did not “define kosher or authorize state inspectors to determine the kosher nature…
The Second Circuit Court of Appeals has determined that Starbucks Corp. did not violate federal labor law by adopting a dress code which limits the number of pro-union buttons its employees can wear on their uniforms. NLRB v. Starbucks Corp., Nos. 10-3511, 10-3783 (2d Cir., decided May 10, 2012). The National Labor Relations Board (NLRB) had ruled that multiple pro-union buttons, at one-inch in diameter, “did not seriously harm Starbucks’s legitimate interest in employee image because ‘the Company not only countenanced but encouraged employees to wear multiple buttons as part of that image.’ These other buttons, the Board found, were not immediately recognizable by customers as company-sponsored, and the pro-union pins at issue were ‘no more conspicuous than the panoply of other buttons employees displayed.’” Reversing this part of NLRB’s determination, the appeals court said that it had gone too far. “Starbucks is clearly entitled to oblige its employees to wear…
The European Food Safety Authority (EFSA) has announced the resignation of Management Board Chair Diána Bánáti, describing her decision to accept a position at the International Life Sciences Institute (ILSI) as “incompatible” with her agency duties. Bánáti apparently agreed to step down after critics raised concerns about EFSA’s supposed lack of transparency “in its links with lobbyists for biotech and food companies,” noted a May 9, 2012, Parliament article. Additional details about a Corporate European Observatory report that focused on EFSA members with ILSI ties appear in Issue 399 of this Update. Although EFSA stressed that board members must consider public perception in undertaking “any activities which could raise doubts about their independence,” Bánáti in her resignation speech reportedly defended the agency as “one of the most transparent organizations I know.” She also reiterated that ILSI Europe, where she will serve as executive and scientific director, is not an industry lobbying…
The U.S. Department of Agriculture’s Food Safety and Inspection Service (FSIS) has proposed new traceback measures to better control and prevent pathogens from triggering foodborne illnesses and outbreaks. Particularly concerned with meat contaminated with Escherichia coli (E. coli), FSIS plans to “move quickly to identify the supplier of the product and any processors who received contaminated product from the supplier, once confirmation is received.” FSIS, which has provided industry guidelines on the matter, requests comments by July 6, 2012. See FSIS Press Release, May 2, 2012; Federal Register, May 7, 2012. FSIS has also issued a proposed rule that would remove the food preservatives sodium benzoate, sodium propionate and benzoic acid from a list of substances prohibited for use in meat or poultry products. Under the proposal, the Food and Drug Administration would continue to approve new safety uses of these substances in meat or poultry products while FSIS would approve them for…
The Food and Drug Administration (FDA) has determined that it will neither conduct a hearing nor make any changes to its final rule on the use of irradiation in processing and handling food. According to the agency, “the objections do not justify a hearing or otherwise provide a basis for revoking the regulation,” issued in October 2000 in response to a petition filed by Caudill Seed Co. which sought a regulatory amendment allowing “the safe use of ionizing radiation to control microbial pathogens in seeds for sprouting.” So ruling, FDA rejected Public Citizen’s concerns that the agency failed to apply a 100-fold safety factor, the petitioner submitted no conventional animal toxicity studies on sprouts from irradiated seeds, the review memorandum contained unsubstantiated statements, and the nutritional adequacy of irradiated seeds is questionable, among other matters. See Federal Register, May 11, 2012.
