The parents of a 29-year-old who died after he fell into a vat of chocolate have filed a wrongful death action in a Pennsylvania state court against the company that owned the plant where he worked and a number of other defendants involved in manufacturing the allegedly faulty equipment that purportedly led to the accident. Smith v. Lyons & Sons, Inc., No. __ (Pa. Ct. Com. Pleas, Philadelphia Cty., filed July 1, 2011). The decedent allegedly slipped on a cardboard-covered platform made slippery with chocolate and other materials and fell into the vat through unguarded holes. The vat was “processing, mixing and melting chocolate at extremely high temperatures at the time.” Co-workers were allegedly unable to stop the vat from operating because the switch was not located on the platform. Alleging negligence, strict liability and breach of express and implied warranties, the plaintiffs seek damages in excess of $50,000. The…
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A New York bakery and its shareholder have filed a trademark infringement action against the Food Network, claiming that its proposed “Tough Cookies” show would confuse consumers. One Tough Cookie, Inc. v. Scripps Networks Interactive, Inc., No. 11-03675 (S.D.N.Y., filed May 31, 2011). According to the complaint, the Food Network has adopted “Tough Cookies” as the name of a “reality” TV series that will air in July 2011. It is apparently based on a “specialty bakery in New Jersey” called Crazy Susan’s Cookie Co. The plaintiffs allege that they are nationally known for “concentrating in ‘edible art’ in the form of cakes, cookies, and other pastries and baked goods” and registered their One Tough Cookie® mark in 2006. The plaintiffs also allege, “Each time the ‘Tough Cookies’ television show airs, plaintiffs’ website and web server will be compromised due to television fans attempting to find the ‘Tough Cookies’ television show…
Celestial Seasonings has filed a complaint against Mexican and Texas companies that are allegedly infringing its Sleepytime trademark with a tea product sold under a “Sleeping Time” mark. The Hain Celestial Group, Inc. v. Royal Tea S.A. de C.V., No. 11-2504 (E.D.N.Y., filed May 24, 2011). According to the complaint, Celestial began registering its marks for tea and dietary supplements in 1975. Contending that the defendants’ Sleeping Time mark is “confusingly similar,” Celestial alleges that the defendants were fully aware of Celestial’s rights to the Sleepytime mark because they tried to cancel Celestial’s Mexican trademark registration. The complaint alleges trademark infringement, trademark dilution and unfair competition under federal law, and related counts under state law. The plaintiff seeks a permanent injunction, destruction of infringing inventory and advertising, treble damages, costs, and attorney’s fees.
A coalition of non-profit advocacy organizations has filed a complaint for declaratory and injunctive relief against the Food and Drug Administration (FDA), alleging that the agency has unreasonably delayed action on several of its petitions relating to the use of antibiotics in animal feed. Natural Res. Def. Council v. FDA, No. 11-3562 (S.D.N.Y., filed May 25, 2011). The plaintiffs seek orders compelling the agency to “withdraw approval for subtherapeutic uses of penicillin and tetracyclines, unless FDA’s findings are reversed in new administrative proceedings.” According to the complaint, while FDA determined in 1977 that these drugs” have not been shown to be safe,” it never withdrew its approvals for the drugs’ subtherapeutic uses. Contending that “misuse and overuse of antibiotics has given rise to a growing and dangerous trend of antibiotic resistance,” the coalition alleges that some of its organizations filed citizen petitions in 1999 and 2005 requesting that FDA “withdraw approvals…
Rare Breed Distilling has filed a trademark infringement action in a Kentucky federal court alleging that Jim Beam Brands’ use of “Give ‘Em the Bird” in connection with its Old Crow bourbon whiskey “is likely to confuse and deceive consumers and purchasers of bourbon whiskey products.” Rare Breed Distilling LLC v. Jim Beam Brands Co., No. 11-292 (W.D. Ky., filed May 13, 2011). Rare Breed has apparently used “Give Them the Bird,” which evolved into “Give ‘Em the Bird,” since 2006, in connection with its Wild Turkey® bourbon whiskey products. The plaintiff alleges that Jim Beam adopted identical marks for use and filed a still pending application to register the mark in March 2010. According to the complaint, Jim Beam has refused to acknowledge Rare Breed’s prior rights to the mark and continues to use it. Alleging federal trademark infringement and unfair competition, and common law unfair competition, the plaintiff seeks…
A New York City deli has filed a lawsuit in federal court seeking a declaration that it has not infringed the trademark of an Arizona-based restaurant by selling an “Instant Heart Attack Sandwich” and planning to sell a “Triple Bypass Sandwich.” Lebewohl v. Heart Attack Grill LLC, No. 11-3153 (S.D.N.Y., filed May 10, 2011). According to the plaintiff, who owns the 2nd Avenue Deli, the Arizona eatery threatened to sue the deli in a March 29, 2011, letter, claiming that the deli’s use of these terms for its menu items violated the defendant’s Lanham Act rights. The Heart Attack Grill has purportedly registered the trademarks “Heart Attack Grill,” “Triple Bypass Burger” and other “Bypass” marks. The New York deli claims that it has been selling its “Instant Heart Attack Sandwich,” which consists of two large potato pancakes with a choice of deli meats, and accompanied by matzo ball soup, since…
A New York state court has determined that a company which made the butter flavoring chemical at issue in workplace exposure lawsuits succeeded to a predecessor’s insurance coverage rights. Int’l Flavors & Fragrances, Inc. v. St. Paul Prot. Ins. Co., No. 601723/08 (N.Y. Sup. Ct., decided April 11, 2011). Finding that a de facto merger had taken place, the court also determined that the company inherited its predecessor’s liabilities in the underlying diacetyl-exposure actions. A $30.4 million jury award involving one of the plaintiffs in an underlying action is discussed in Issue 361 of this Update.
U.S. attorneys in New York have reportedly secured court approval of a consent decree with three companies that allegedly exported meat containing vertebral column to Japan in violation of U.S. trade requirements. The settlement resolves an action filed in March 2011 alleging that the companies exported veal containing ineligible bone and tissue fragments, which action resulted in Japan closing its borders to all U.S. beef products for six months, purportedly costing the industry $500 million in losses. Details about the case appear in Issue 385 of this Update. Under the agreement, the companies neither admit nor deny the allegations,but they agree to “permanently provide additional access,record-keeping,and reporting in order to ensure ongoing compliance.” The decree alsoentitles the United States “to substantial andescalating monetary relief in theevent of future violations for the next three years--$10,000 for the first violation,$25,000 for the second,and $50,000 for each violation thereafter.” Thedecree allows the U.S.…
New York City Council Member Leroy Comrie (D) has introduced a bill (Int. No. 530) that would ban toy giveaways in restaurant meals deemed high in calories, sodium and fat. Amending the city’s administrative code “in relation to setting nutrition standards for distributing incentive items aimed at children,” the bill mirrors a similar San Francisco measure set to go into effect in December 2011. Comrie’s proposal would require establishments that offer toys with meals to make sure the food contains less than 500 calories, 600 milligrams of sodium and 35 percent of calories from fat. A half cup of fruit or vegetables and one serving of a whole-grain product must be included in the meal. Violators would be subject to fines ranging from $200 to $2,500. “While I recognize that ensuring children have access to, and eat more, nutritious meals is ultimately the responsibility of their caretakers, the City Council…
A coalition of more than 50 trade organizations, seed businesses, farms, and farmers has filed a lawsuit in a federal court in New York, to stop Monsanto Co. from enforcing its genetically engineered (GE) seed patents against farmers whose fields become contaminated with the GE seeds. Organic Seed Growers & Trade Ass’n v. Monsanto Co., No. 11-2163 (S.D.N.Y., filed March 29, 2011). Among other matters, the plaintiffs claim that the seed patents are invalid, because “only technology with a beneficial societal use may be patented,” they violate “the prohibition against double patenting, each is anticipated or rendered obvious by prior art, and each fails to satisfy the requirements of written description, enablement and best mode.” The plaintiffs also allege that the patents are not infringed by farmers whose fields become contaminated with GE seeds, because the farmers do not intend to use them, “and Monsanto’s patent rights in transgenic seed exhaust…
