Noodles Raw Catering, owner of Chubby Noodle restaurants, has filed a lawsuit alleging that Saison Group’s Fat Noodle restaurant infringes on Noodles Raw’s trademark. Noodles Raw Catering LLC v. Saison Group LLC, No. 15-316 (N.D. Cal., filed January 22, 2015). The complaint asserts that although Chubby Noodle, which sells “high-quality, well-priced Asian-inspired” food, does not yet own a federally registered trademark in its name (because its application is pending), it has received national and international attention since its opening in 2011. Saison has been developing a Fat Noodle restaurant since 2012—as indicated by intent-to-use applications with the U.S. Patent and Trademark Office—but has not yet opened the restaurant, and its website appears to be a placeholder. Noodles Raw alleges that the logo appearing on the website is too similar to its Chubby Noodle logo because both feature “a simple, black, Asian-style bowl with noodles.” Claiming common law trademark infringement, false…
Tag Archives California
Several organizations, including the Center for Biological Diversity, Environmental Working Group and Center for Food Safety as well as the city of Berkeley, California, have filed a lawsuit against the California Department of Food and Agriculture to contest the agency’s approval of a pest management plan that allows pesticide spraying on organic farms, schools and residential yards. Envtl. Working Grp. v. Cal. Dep’t of Food and Agric., No. RG15755648 (Super. Ct. Cal., Alameda Cty., filed January 22, 2015). The groups challenge the alleged lack of evidence supporting the conclusion that the program will have no effect on Californians’ health and argue that the plan violates state environmental laws, including the requirement of public notice before spraying pesticides and the requirement to analyze the impacts on human and environmental health. A January 22, 2015, Center for Biological Diversity press release asserts that the agency received 30,000 opposition letters to the program.…
A group of consumers has filed a putative class action against Cytosport Inc., maker of Muscle Milk, alleging that its powdered and ready-to-drink protein supplements do not contain the ingredients and characteristics advertised on its packaging. Clay v. Cytosport Inc., 15-165 (S.D. Cal., filed January 23, 2015). The plaintiffs argue that independent scientific testing shows that Muscle Milk products contain substantially less protein than the amount represented in the Nutrition Facts panel. They also allege that Muscle Milk labels list L-glutamine amino acids separately from the protein content to falsely imply that the products have additional L-glutamine beyond the content inherent in the protein mix. The complaint further argues that Muscle Milk labels cannot feature the word “lean” because the product does not contain less fat than its competitors. Alleging deceptive advertising, misrepresentation and breach of warranties, the putative class seeks certification, damages, an injunction, and attorney’s fees. Issue…
A California federal court has dismissed without leave to amend claims that the makers of 5-Hour Energy—Innovation Ventures LLC, Living Essentials LLC, Manoj Bhargava, and Bio Clinical Development Inc.—falsely advertised their product as boosting its users’ energy levels with B-vitamins and amino acids rather than caffeine. In re: 5-Hour Energy Mktg. & Sales Practices Litig., No. 13-2438 (C.D. Cal., order entered January 22, 2015). The plaintiffs argued that the 5-Hour Energy makers downplayed the caffeine content in favor of attributing the product’s energy source to vitamins and other ingredients, and they included descriptions of five commercials containing the allegedly misleading statements. The court found that they failed to show what statements actually misled them, and it was also unpersuaded by the argument that the plaintiffs were exposed to a common message and thus did not need to specify which statements they relied upon to their detriment, so it dismissed without…
District attorneys in California’s Yolo, Sacramento and San Joaquin counties have reportedly filed a lawsuit in state court alleging that R.F. Palmer Co. advertised its “Too Tall Bunny” product in violation of the unfair business practices, false advertising and unfair competition provisions of the California Business and Professions Code. The chocolatier apparently packaged the chocolate bunny in a box similar in size to its competition but asserted that the bunny was “Too Tall” and displayed the ears in plastic popping out of the top of the box. The bunny sat on a cardboard insert at the bottom of the box, and without that insert, the bunny was the same size as other similar products, the prosecutors argued. The district attorneys reportedly reached an agreement with the Pennsylvania-based chocolatier bore filing the case to ensure compliance; the court issued a final judgment the same day—a civil penalty of $2,500 for each…
The U.S. Supreme Court has granted certiorari to a coalition of California raisin growers that challenged a federal rule requiring them to give a portion of their annual harvests to a crop-specific committee that in turn sells the reserves for export or donates them to school lunch programs or foreign governments. Horne v. USDA, No. 14-275 (U.S., certiorari granted January 16, 2015). The coalition contends that the portion of the harvest that its growers set aside constitutes a taking under the Fifth Amendment, which guarantees just compensation for such acts. They assert that for the 2002-2003 season, they were required to set aside 47 percent of their raisin crops, and the named plaintiffs were paid less than the cost of production; in the 2003-2004 season, they allegedly set aside 30 percent and were not paid at all. The coalition argues that, in a split from other circuits, the Ninth Circuit…
Two days after filing a lawsuit alleging that Sierra Nevada Brewing Co. infringed its stylized label trademark featuring the letters “IPA,” Lagunitas Brewing Co. filed a notice of voluntary dismissal without prejudice in the case and its owner, Tony Magee, publicly commented that he had been “seriously schooled” by the “Court of Public Opinion” following a wave of social media backlash. The Lagunitas Brewing Co. v. Sierra Nevada Brewing Co., No 15-153 (N.D. Cal., notice of voluntary dismissal filed January 14, 2015). The complaint alleged that Sierra Nevada’s label for its new Hop Hunter IPA, in a “radical departure” from its typical label designs, infringed the Lagunitas trademark on “large, all-capital, bold, black and centralized ‘IPA’ lettering.” The complaint further argued that “[w]hen Lagunitas began selling its now iconic IPA beer in 1995, there existed only a handful of other brewers who produced an India Pale Ale, and, on information and…
A California federal court has denied a motion to dismiss a putative class action alleging that Deoleo USA Inc., importer of Bertolli and Carapelli olive oils, misrepresented the quality of the oils as “extra virgin” despite being mixed with refined oil and using bottles insufficient to prevent sunlight and heat degradation. Koller v. Med Foods, Inc., No. 14-2400 (N.D. Cal., order entered January 6, 2015). Deoleo attacked the complaint for failing to supply the studies supporting the argument that “’imported ‘extra virgin’ olive oil often fails international and USDA standards’ and that packaging olive oil in clear bottles can lead to rapid degradation of its quality,” but the court dismissed the argument for being premature to the pleading phase. Deoleo also asserted that while studies may support the proposition that the oil it imports may not meet extra virgin standards, the plaintiff could not show that the oil in the bottle…
A California state court has lifted an injunction that barred bisphenol A (BPA) from placement on the list of reproductive toxicants mandated under Proposition 65, the 1986 law requiring warnings to the public about exposure to chemicals “known to the state to cause cancer or reproductive toxicity.” Am. Chemistry Council v. Office of Envtl. Health Hazard Assessment, No. 34-2013- 00140720 (Super. Ct. Cal., Cty. of Sacramento, order entered December 18, 2014). BPA joined the Prop. 65 list in April 2013, but a court granted the injunction barring its inclusion one week later. The court assessed whether the Office of Environmental Health Hazard Assessment (OEHHA) abused its discretion in finding substantial evidence that the regulatory criteria to list BPA were met. It found the American Chemical Council’s (ACC’s) argument that an entry to the list must be supported by “clear evidence that the chemical is known, not merely suspected, to cause cancer…
Finding flaws in a lower court’s likelihood of confusion analysis, the Ninth Circuit Court of Appeals has vacated the denial of an injunction sought by Pom Wonderful that would block the sale of Pur Beverages’ “pur pom” energy drink. Pom Wonderful v. Hubbard, No. 14-55253 (9th Cir., order entered December 30, 2014). Pom Wonderful sued Pur to prevent Pur from using the name “pur pom” based on a claim of trademark infringement, but a California federal court denied Pom Wonderful’s motion for preliminary injunction, finding that Pom likely would not prevail because of distinct visual features on the products. The Ninth Circuit disagreed; it found significant similarities between the “POM” mark owned by Pom and the “pom” used by Pur, including a stylized “o” in each. “POM” and “pom” also sound the same and both refer to pomegranate flavoring or ingredients, the court noted. “Balancing the marks’ many visual similarities,…
