The U.S. Trademark Trial and Appeal Board (TTAB) has affirmed the denial of Yarnell Ice Cream LLC's application to register a trademark on a mascot named "Scoop." In re Yarnell Ice Cream, LLC, No. 86824279 (TTAB, entered July 9, 2019). The examining attorney rejected the application, finding "scoop" to be merely descriptive, and the appeals board agreed, pointing to examples from competitors identifying their serving sizes in scoops. The board also dismissed the argument that Yarnell's "scoop" has two meanings—the ice cream serving and the breaking-news description—because the latter intended meaning only became clear within the context of Yarnell's trade dress. "The dictionary definitions, third-party uses and registrations, and webpages and articles discussed and displayed above make it clear that 'scoop' is a common portion size and measuring unit for frozen confections and ice cream," the court held. "We find that 'scoop' has little, if any, source-identifying capacity as a…
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A U.K. television show has aired a report on the ingredients in locally available vanilla ice creams, finding that many products do not contain cream, fresh milk or vanilla. “One in five of the ice-creams examined by Which? contained none of the three ingredients shoppers might reasonably expect to find in vanilla ice-cream,” The Guardian reports. The program reportedly found that ice cream products replaced cream and milk with “partially reconstituted dried skim milk, and in some cases, whey protein” while vanilla “was often replaced with a general ‘flavouring.’” The Guardian notes that the United Kingdom has “no requirements for manufacturers to meet before a product can be called ice-cream.” VICE compared U.K. regulations to those promulgated by the U.S. Food and Drug Administration, finding that the United States has stricter standards that dictate a product’s minimum levels of dairy fat to earn “ice cream” on its label.
International Dairy Queen Inc. faces a potential class action alleging it violated consumer-protection laws with a “bait-and-switch” scheme by advertising a free Blizzard without verifying that all store locations would honor the coupon. Spencer v. Int’l Dairy Queen, Inc., No. 18-1252 (D. Ore., filed July 13, 2018). The complaint alleges that the plaintiffs viewed an advertisement promising a "special treat for fans with our new mobile app," which displayed a coupon for a free small Blizzard, directed users to choose a store location and displayed a promotional code valid for 15 minutes. The complaint contends that hundreds of people posted online comments complaining that several locations refused to honor the coupons. Claiming violations of Oregon’s Unlawful Trade Practices Act and unjust enrichment, the plaintiff seeks damages, restitution, attorney’s fees and a judgment against Dairy Queen “for the monetary value of at least five Blizzards per class member.”
Two consumers have filed a putative class action alleging that Eden Creamery "underfills its 'pints' of ice cream"—“[d]ramatically so at times, and as a course of business." Kamal v. Eden Creamery LLC, No. 18-1298 (S.D. Cal., filed June 15, 2018). The complaint alleges, "Purchasers of the premium-priced ice cream simply have no idea how much ice cream they will get each and every time they buy a Halo Top 'pint.' And Halo Top has been doing this for years." The "amount of underfilling appears to be random to consumers" and "appears to be unrelated to flavor of ice cream or the location of purchase," the plaintiffs assert. The complaint also points to a form allegedly created by Halo Top that allows consumers to report underfilled containers to argue that Halo Top knows of its alleged underfilling practices. The plaintiffs allege violations of California's consumer-protection statutes and seek class certification, damages, an…
A New York plaintiff alleges Halo Top ice cream is falsely and deceptively labeled because it does not prominently display the term "light" on its labels, purportedly misleading consumers into believing it is regular full-fat ice cream. Berger v. Eden Creamery, LLC, No. 18-2745 (E.D.N.Y., filed May 9, 2018). Among other allegations, the plaintiff asserts that consumers associate the word "halo" with yellow, the color of butter and cream; that Eden Creamery fails to comply with federal laws requiring the identity statement "light ice cream" to be displayed prominently on the front label; and that the location where the phrase is displayed is "in an area of the container prone to ice or condensed water obstructing it." In addition, the complaint alleges that Eden Creamery's statements that Halo Top is "All Natural" and contains "No Artificial Sweeteners" are false and misleading because the products contain a synthetic form of the sugar…
American Dairy Queen Corp. has filed a lawsuit challenging W.B. Mason Co.'s application for a “Blizzard” trademark for its bottled water. Am. Dairy Queen Corp. v. W.B. Mason Co., Inc., No. 18-0693 (D. Minn., filed March 12, 2018). Dairy Queen alleges that it trademarked “Blizzard” for milkshakes in 1946 and has extended the mark to ice milk, ice cream, soft serve, machinery and restaurant services. The complaint asserts that the Blizzard marks are “widely recognized by the general consuming public of the United States as a designation of source of Dairy Queen’s goods and services.” Alleging trademark infringement, unfair competition by false designation, trademark dilution, unfair competition and violation of Minnesota’s deceptive trade practices law, Dairy Queen seeks an injunction barring W.B. Mason from using the Blizzard mark, destruction of packaging and advertising materials, award of profits generated from use of the infringing mark and attorney’s fees.
The Texas Department of State Health Services has announced that Blue Bell Creameries must pay $850,000 in connection with a 2015 outbreak of Listeria monocytogenes linked to the company’s ice cream manufacturing facilities. Blue Bell must pay $175,000 within 30 days, but the remaining balance of $675,000 will not be due if the company follows the terms of its agreement with the state for 18 months. The agreement requires Blue Bell to notify the agency of a presumptive positive test result for Listeria and to maintain “test and hold” procedures, through which the company must ensure that its ice cream is free of pathogens before shipping the products to retailers. See Texas Press Release, July 29, 2016. Issue 613
A New York state appellate court has affirmed a lower court’s ruling dismissing a lawsuit against a local Fox TV station that investigated and reported on the allegedly false health claims of D’Lites ice cream in two stores. Prince v. Fox Television Stations Inc., No. 107129/2011 (N.Y. App. Div., 1st Dept., order entered March 8, 2016). The eight-minute “Shame Shame Shame” report informed viewers that the nutritional information advertised for a small serving did not correlate to the nutritional information of the ice cream served by two New Jersey stores; the owner of a D’Lites store—not one involved in the report—sued the station for libel. A lower court then dismissed the lawsuit; details appear in Issue 524 of this Update. “To the extent that there were purported discrepancies in the measurements of sugar and carbohydrates in the test results of the samples sold in stores, plaintiff does not dispute that…
Amid ongoing recalls of Blue Bell Creameries’ ice cream products, a plaintiff has filed a lawsuit alleging that the company is liable for his severe listeriosis infection he says stems from the consumption of several varieties of contaminated products. Shockley v. Blue Bell Creameries Inc., No. 15-425 (W.D. Tex., filed May 19, 2015). The plaintiff alleges that Listeria monocytogenes infected his blood, then brain, resulting in permanent brain damage and leaving him near death. The complaint documents the recent Listeria outbreak subsequently linked to Blue Bell’s products by the Centers for Disease Control and Prevention. “Blue Bell utterly failed to design and implement sanitation and safety programs that would have prevented the sort of infestation and contamination that occurred at its facilities over a period of years,” the plaintiff asserts. He seeks compensatory, economic and punitive damages for strict product liability, negligence, misrepresentation and breach of warranties. Issue 566
A putative class action alleging that Conopco Inc., a subsidiary of Unilever United States, mislabeled Breyers ice cream as “all natural” has been voluntarily dismissed with prejudice. Jefferson v. Conopco, No. L-7025-14 (Super. Ct. N.J., Bergen Cty., stipulation of voluntary dismissal filed December 1, 2014). The plaintiff alleged that Breyers’ use of cocoa processed with alkali (Dutch process cocoa) contains the artificial ingredient potassium carbonate, which he argued should preclude the company from labeling its products as natural. The brief stipulation indicates that each party will pay its own attorney’s fees and costs. Additional information about the lawsuit appears in Issue 531 of this Update. Issue 547
