Texas chain Torchy’s Tacos, which uses the tagline “Damn Good Tacos” in its restaurants and merchandising, has filed suit against Colorado restaurant Dam Good Tacos for trademark infringement, claiming consumer confusion. Success Foods Mgmt. Group, LLC v. Dam Good Systems, LLC, No. 170842 (D. Colo., filed April 5, 2017). Asserting that it registered the “Damn Good Tacos” trademark in 2008, Torchy’s alleges federal trademark infringement, unfair competition, and violation of the Colorado Consumer Protection Act, and it seeks injunctive relief, damages and destruction of Dam Good Tacos’ infringing URLs, email addresses and all packaging, promotional and advertising materials. Issue 631
Tag Archives Texas
The U.S. Environmental Protection Agency (EPA) has announced a settlement with Whole Foods Inc. after a year-long investigation into the company’s hazardous-waste disposal at facilities in five states. According to EPA, the investigation uncovered that Whole Foods did not properly make hazardous waste determinations—as required by the Resource Conservation and Recovery Act—and mishandled spent lamps. Under the settlement terms, Whole Foods will correct the violations, pay $3.5 million and “promote hazardous waste compliance in the retail industry as part of a supplemental environmental project.” That project will aim to educate Texas retailers—”particularly smaller businesses”—about hazardous waste laws and the importance of maintaining compliance. “All companies must follow the law and be responsible stewards of their hazardous waste, from generating it to safely disposing of it,” an EPA administrator was quoted as saying in a September 20, 2016, press release. “Whole Foods is correcting these violations and will ensure their stores…
A Texas judge has reportedly voided a 2013 law prohibiting Texas craft-beer brewers from selling territorial rights to distribute their beers, finding the state had no compelling state interest in restricting the breweries. The statute was part of a package of other laws benefitting small breweries, but the distribution limitation was apparently inserted at the behest of large Texas wholesalers. The rule prevented brewers from receiving monetary compensation for distribution rights. The brewer who challenged the law, a former plaintiffs’ attorney, told Texas Lawyer, “It restores millions of dollars of value to brewers who had their rights taken from them for no justifiable reason.” See Houston Chronicle, August 26, 2016; Texas Lawyer, August 29, 2016. Issue 617
A Texas federal court has dismissed multidistrict litigation (MDL) alleging that Whole Foods Market Inc. lists incorrect amounts of sugar on its yogurt labels, concluding the Consumer Reports data relied on by the plaintiffs did not meet federal standards. In re Whole Foods Mkt. Inc. Greek Yogurt Mktg. & Sales Practices Litig., MDL No. 2588 (W.D. Tex., Austin Div., order entered February 16, 2016). The consumers claimed Whole Foods’ store-brand yogurt contains 11.4 grams of sugar per serving, while the listed sugar content is 2 grams. Details about some of the 11 consolidated lawsuits appear in Issues 533 and 534 of this Update. Whole Foods argued that the consumers’ claims were preempted by the federal Food, Drug, and Cosmetic Act (FDCA) because the scientific testing techniques used by Consumer Reports failed to comply with the testing methodology determined by the U.S. Food and Drug Administration. The court agreed, noting that…
Viacom International Inc. has filed a lawsuit against IJR Capital Investments alleging that a restaurant owned by the company infringes on Viacom’s intellectual property in the “SpongeBob SquarePants” franchise. Viacom Int’l Inc. v. IJR Capital Invs., No. 16-0257 (S.D. Tex., Houston Div., filed January 29, 2016). As the complaint explains, “The ‘Krusty Krab’ is owned by Eugene H. Krabs, a prominent and recurring character in the SpongeBob universe. SpongeBob SquarePants works at the ‘Krusty Krab’ as a fry cook, but he also performs a myriad of other duties, and once stated that his official title is ‘Vice Assistant General Manager in charge of certain things.’” IJR operates The Krusty Krab in Texas and has filed for trademark registration. Viacom argues that IJR is “attempting to trade off of the goodwill and reputation of the ‘SpongeBob SquarePants’ media franchise’ and that consumers are likely to be confused by IJR’s use of “Krusty…
Deep Ellum Brewing Co. has filed a lawsuit against the Texas Alcoholic Beverage Commission challenging the constitutionality of Texas Alcohol Beverage Code provisions forbidding brewers from selling their alcohol products on-site for off-premises consumption. Deep Ellum Brewing Co. v. Tex. Alcoholic Beverage Comm’n, No. 15-0821 (W.D. Tex., filed September 14, 2015). Dubbing the campaign “Operation Six Pack To Go,” the brewery argues that distilleries, wineries and brewpubs can sell their products in to-go packaging but breweries cannot, resulting in an unconstitutional distinction in the law. Texas alcohol codes distinguish between manufacturers, distributors and retailers, prohibiting overlapping ownership but creating exceptions for particular conditions, the complaint asserts. One such condition allows manufacturers to act as retailers in certain situations, such as at wineries and brewpubs. Deep Ellum Brewing alleges that because of this provision, it “has lost and continues to lose business (and resulting profits) because it cannot sell its product on-site…
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
Big Red, Inc., a beverage company owned by Dr Pepper Snapple Group Inc., has filed a trademark infringement lawsuit against Catawissa Bottling Co., alleging that the company packages its Big Ben cream soda too similarly to Big Red’s red cream soda product. Big Red, Inc. v. Catawissa Bottling Co., Inc., No. 15-1423 (N.D. Tex., filed March 6, 2015). Big Red cites as distinctive its “consistent product packaging, which is unified by a central configuration: Two single syllable words, ‘BIG RED,” are featured prominently on the center of a label and positioned between stylized text or small accents. The label is then imposed on a clear, wide shouldered bottle with a tapered neck that angles smoothly towards the collar.” Big Ben “is artificially colored to an identical shade of red,” Big Red argues, and “is marketed in product packaging that is nearly identical.” Big Red alleges federal and state trademark and…
Texas has settled a trademark dispute with Alamo Beer Co. and Old 300 Brewing after the state intervened in Alamo Beer’s lawsuit alleging Old 300 infringed its trademarked Alamo silhouette. Alamo Beer Co. v. Old 300 Brewing, LLC, No. 14-285 (W.D. Tex., consent order entered April 28, 2015). According to court documents, the settlement establishes that Texas owns the premises of the Alamo in downtown San Antonio and “[a]s the owner, the State also owns the image of the Alamo and the right to commercialize that image to whatever extent the State, as owner, decides to do so. Such commercialization includes the right to use or license the use of the image on product labels.” The consent order further lists the state’s federally registered trademarks related to the Alamo, which it uses to sell products at the landmark’s gift shop. Under the final judgment, Alamo Beer and Old 300 are permanently…
Whole Foods Market Inc. is the target of two new putative nationwide class actions, one filed in a Texas federal court regarding the amount of sugar in the company’s plain Greek yogurt and the other filed in a California state court over alleged false advertising and sales of Blue Diamond almond milk products with a “Non-GMO Project Verified” label. Kubick v. Whole Foods Mkt., Inc., No. 14-1013 (W.D. Tex., filed November 10, 2014); Richard v. Whole Foods Mkt. Cal., Inc., No. BC563304 (Cal. Super. Ct., Los Angeles Cty., filed November 7, 2014). The Texas complaint alleges that Whole Foods 365 Everyday Plain Greek Yogurt represents that it contains 2 grams of sugar per serving, when testing shows that it actually contains more than 11 grams of sugar per serving, or “more than five and a half times the labeled amount.” According to the plaintiff, a California resident, this is particularly significant because…
