A California winery has filed a complaint against Anheuser-Busch, LLC seeking a declaration that the winery has not infringed any of the brewer’s protectable trademark rights and that the winery’s use of the BOW TIE word mark and Bow Tie slogan to sell its wine “does not constitute unfair competition.” San Antonio Winery, Inc. v. Anheuser-Busch, LLC, No. 12-7067 (C.D. Cal., filed August 16, 2012). The winery claims that it started using the BOW TIE word mark in the United States in 2012 and had filed a trademark application for the mark in November 2011. After the application was published for opposition, Anheuser-Busch allegedly demanded that the winery abandon the application and refrain from using the BOW TIE word mark on the ground that the brewer held design marks depicting bow ties and that “there is a likelihood of consumer confusion, mistake, or deception between San Antonio’s BOW TIE Word Mark…
Tag Archives California
A California resident has filed a putative nationwide class action against a company that makes low-calorie frozen desserts, alleging that they do not, as advertised, contain just “150 calories per pint.” Michelle v. Arctic Zero, Inc., No. ___ (S.D. Cal., filed August 21, 2012). According to the complaint, Arctic Zero’s Vanilla Maple dessert “has 46% more calories than the 150 calories advertised on the product packaging and reflected on the nutritional label” and the company’s “Chocolate Peanut Butter has 68% more calories than the 150 calories advertised.” Claiming that she would not have purchased the products had she not been misled, the plaintiff alleges violations of California’s Unfair Competition Law (unlawful, unfair and fraudulent conduct), False Advertising Law and Consumers Legal Remedies Act, as well as unjust enrichment. She seeks preliminary and permanent injunctive relief; corrective disclosures; compensatory, consequential, statutory, exemplary, treble, and punitive damages; restitution; attorney’s fees; costs; and…
Industry interests that lost their challenge to the listing of 4-MEI as a chemical known to California to cause cancer have abandoned the appeal they filed before the Third District Court of Appeals in February 2012. Cal. League of Food Processors v. OEHHA, No. C070406 (Cal. Ct. App., case complete August 15, 2012). Additional information about the challenge and trial court decision appears in Issues 420 and 429 of this Update. California EPA’s Office of Environmental Health Hazard Assessment (OEHHA) added the chemical, commonly found in foods such as soy sauce, roasted coffee and the caramel coloring added to colas and beer, to the Proposition 65 (Prop. 65) list in January 2011.
A federal court in California has denied Chipotle Mexican Grill’s motion to dismiss putative class claims alleging that the company fraudulently represents that it uses only naturally raised meat in its menu items. Hernandez v. Chipotle Mexican Grill, Inc., No. 12-5543 (C.D. Cal., order entered August 23, 2012). According to the court, “Plaintiff need not show that he consumed non-naturally raised meat on one of his visits to Chipotle [because] the harm alleged [is that] Plaintiff purchased food at Chipotle, at a premium, based on Defendant’s representations that non-naturally raised meat was not used there.” The court also determined that the plaintiff adequately alleged a claim for fraudulent concealment and denied as premature that part of the defendant’s motion addressing the class allegations. The court did, however, order briefing on whether plaintiff’s counsel “would be adequate counsel to represent the class if a class were certified.” In this regard, the…
Claiming that lead levels in candies imported from China, Taiwan and Hong Kong exceed Proposition 65 (Prop. 65) limits, the Center for Environmental Health has reportedly initiated legal proceedings against eight retailers and distributors in San Francisco’s Bay Area. The organization has apparently urged the companies to remove the products from store shelves after testing showed that typical serving sizes would expose consumers to 10 times or more lead than state and federal standards. One candy allegedly contained nearly 100 times more lead than the Prop. 65 limit. According to Center Executive Director Michael Green, “It is especially worrisome when we find lead in candy, since consumers are ingesting the lead with every bite. This candy may be very dangerous, particularly for children or pregnant women.” See Center for Environmental Health News Release, August 7, 2012.
A California court has reportedly dismissed claims filed by the Physicians Committee for Responsible Medicine (PCRM) against fast-food chains, finding that the group failed to investigate its allegations before suing under Proposition 65 (Prop. 65). PCRM v. McDonald’s Corp., No. BC383722; PCRM v. KFC Corp., No. BC457193 (Cal. Super. Ct., Los Angeles Cty., decided August 15, 2012). Filed in 2008 and 2011, the suits alleged that the restaurants failed to warn consumers that their grilled chicken menu items contain PhIP, a chemical known to the state to cause cancer. Yet, PCRM did not apparently visit the restaurants until February 2012 to take pictures of the posted warnings. The restaurants reportedly post notices that some of their products contain cancer-causing chemicals and refer customers to nutritional brochures for additional details. They contend that their warnings comply with Prop. 65. Information about similar litigation filed in San Francisco County appears in Issue…
Dole Food Co. has filed a motion to dismiss or strike claims in a putative class action alleging that its food product labels mislead consumers. Brazil v. Dole Food Co., Inc., No. 12-1831 (N.D. Cal., motion filed August 13, 2012). Identifying the plaintiff as a “repeat class representative” who recently received an incentive award in another lawsuit, Dole argues that his claims are preempted under federal law, he lacks standing because he has not been injured, the claims are not plausible, and he has failed to state a claim under California law. The company also notes that the case is “one of 24 (and counting) nearly identical ‘misbranding’ class action cases filed during a 15-week blitz by nine law firms from six different states,” thus making it an “assembly-line” complaint that follows “a common recipe.” In summary, Dole contends, “By this lawsuit, Plaintiff seeks colossal damages, punitive damages, and a nationwide injunction…
A Los Angeles County resident has filed a putative class action against the Austrian and British makers of “Oxygizer” water, claiming that the companies “falsely represent that through a patented process they are able to hyperoxygenate water and that consumption of Oxygizer leads to a number of purported beneficial health effects.” Ghazarian v. Oxy Beverages Handelsgesellschaft mbH, No. BC489773 (Cal. Super. Ct., filed August 7, 2012). Noting that people cannot absorb oxygen through their digestive systems, the plaintiff alleges that the defendants mislead consumers by falsely claiming their beverage can aid athletic performance, transport oxygen to every body cell, strengthen the immune system, and help office workers in large cities make up oxygen deprivation. The companies purportedly claim that scientific tests support their product representations and that their water is patented; the plaintiff alleges that these claims are also false and misleading. According to the plaintiff, the Federal Trade Commission has…
The day after district attorneys for three California counties filed a lawsuit against tuna producers alleging that they make quantity misrepresentations “by failing to meet the standard of identity for canned tuna products seasoned or flavored with broth, as defined in the Code of Federal Regulations,” it was announced that a $3.3 million settlement had been reached. California v. Bumble Bee Foods, LLC, No. 12-11729 (Cal. Super. Ct., filed August 2, 2012). According to the San Diego County district attorney, a California Department of Food and Agriculture (CDFA) investigation discovered that the companies “failed to meet the required amount of tuna in cans packed with vegetable broth and added flavors.” Under the terms of the agreement and without admitting liability, each company will provide $300,000 in canned tuna to California food banks, and costs and penalties will be divided among the counties with each receiving $969,500. CDFA will be paid investigative…
A California Superior Court has reportedly dismissed a lawsuit filed by nearly 3,000 Philippine banana plantation workers who claimed that exposure to the pesticide 1,2-Dibromo-3-chloropropane (DBCP) more than 30 years ago caused physical and mental injury including sterility, testicular atrophy, miscarriages, and cancer. Macasa v. Dole Food Co., No. BC467134 (Cal Super. Ct., decided August 8, 2012). More details about the litigation appear in Issue 405 of this Update. According to a company spokesperson, the claims were fraudulent and should not have been brought because no reliable scientific evidence links DBCP agricultural exposures to the injuries alleged. The company reported that an identical lawsuit filed 13 years ago in the Philippines was also dismissed. The U.S. Environmental Protection Agency has apparently prohibited the pesticide’s use in the United States, classifying it as a probable human carcinogen. See Ventura County Star, August 9, 2012.
