The Texas Animal Health Commission (TAHC) has announced the implementation of new adult cattle traceability rules effective January 1, 2013. TAHC apparently amended its regulations after “unofficially” suspending its brucellosis test requirement for adult cattle at change of ownership. Because cattle no longer receive ear-tags at the time of testing, the updated rule stipulates that “all sexually intact cattle, parturient or post parturient, or 18 months of age and older changing ownership must still be officially identified with Commission approved permanent identification.” “The new traceability rule will help preserve the TAHC’s ability to identify and trace animal movements quickly and effectively, no matter which disease is involved,” stated the agency, which has anticipated that the change will primarily affect beef cattle, “as dairy cattle in Texas have had an even more stringent identification requirement in place since 2008.” The Commission has also supplied a complete list of acceptable identification devices…
Tag Archives Texas
A Texas appeals court has dismissed product liability and negligence claims filed by a woman injured when she was struck twice in the face with a longneck beer bottle during a birthday celebration at a bar known for its violence. Gann v. Anheuser-Busch, Inc., No. 08-00017 (Tex. App., 8th Dist., July 25, 2012). Affirming the trial court’s grant of the defendants’ motion for summary judgment, the appeals court determined that the plaintiff “failed to produce more than a scintilla of evidence that the longneck bottle was defectively designed so as to render it unreasonably dangerous and failed to establish that Appellees owned her a legal duty to protect her from the criminal acts of a third person.” Specifically, the court found insufficient evidence that the risk of injury from the bottle’s design outweighs its utility despite the plaintiff’s assertions that “beer bottles are used commonly in assaults in the local…
According to a news source, Whole Foods Market Inc. is seeking to stop its deposition in consumer fraud litigation filed against Skinny Girl Cocktails LLC, arguing that it does not own or operate Whole Foods retail stores nor does it “decide which suppliers, food brokers or distributors are to be used by Whole Foods Market retail locations.” Greene v. Skinny Girl Cocktails LLC, 12-550 (W.D. Tex., motion to quash filed June 22, 2012). A number of putative class actions alleging that the defendants falsely market margaritas as “all natural” were filed in district courts around the country after Whole Foods stores pulled the product from their shelves upon learning that it contains sodium benzoate as a preservative. An effort to have the actions consolidated before a multidistrict litigation court failed; additional details about that ruling appear in Issue 422 of this Update. See Law360, June 25, 2012.
A California resident has filed a putative class action against Starbucks Corp. alleging that the company deceived consumers by failing to disclose that some of its products were made with cochineal extract, a common food-coloring ingredient made from crushed insects. Anderson v. Starbucks Corp., No. BC485438 (Cal. Super. Ct., Los Angeles Cty., filed May 25, 2012). Seeking to represent a nationwide class and statewide subclass of consumers, the plaintiff claims that she and the class members, had they known about the company’s use of the ingredient, would not have purchased the products for a number of reasons, including objections to consuming animal products, allergic responses to the ingredient or “sheer disgust.” Alleging violations of the California Unfair Business Practices Act and False Advertising Act, unjust enrichment, fraud by omission/concealment, and violation of California’s Consumers Legal Remedies Act, the plaintiff seeks disgorgement, restitution, compensatory and punitive damages, payment to a cy pres fund,…
A Texas-based tomato producer has sued a Canadian company in federal court alleging that its packaging and label for grape tomatoes infringes the Nature Sweet Cherubs™ patents, issued in 2010 and 2011, and trademarks, in use since 2007. NatureSweet, Ltd. v. Mastonardi Produce Ltd., No. 12-1424 (N.D. Tex., filed May 8, 2012). According to the complaint, the defendant’s “Angel Sweet” label copies the Sweet Cherubs™ label by using similar colors and a “winged tomato design mark.” Claiming that its mark, in which the company has made a considerable investment, is famous and distinctive, the plaintiff alleges a likelihood of confusion among consumers by defendant’s use of similar marks and packaging. The plaintiff also claims that the defendant’s grape tomatoes, in contrast to its own, “do not have the same consistent great taste throughout the year.” Alleging federal trademark infringement, dilution and unfair competition; unjust enrichment; and design patent infringement, the…
The Mexican owner of U.S. and Mexican trademarks for an “automatic pistol-shaped bottle design . . . used in connection with alcoholic beverages, with the exception of beers” and its exclusive U.S. distributor have filed trademark infringement claims against the company that sells, markets and imports into the United States Eagle Shot Tequila® in a pistol-shaped bottle. Mexcor Distribs. Inc., v. Purveyors LLC, No. 12-1240 (S.D. Tex., filed April 19, 2012). The plaintiffs allegedly demanded that the defendant cease and desist from doing so, and the defendant failed to respond. Seeking preliminary and permanent injunctive relief, the plaintiffs also seek an accounting and payment of profits earned from the date of first use of the mark, treble damages, attorney’s fees, and costs. They allege trademark infringement and unfair competition under the federal Lanham Act, as well as Texas common law on trademarks and unfair competition. According to the complaint, the defendant’s…
A federal court in Texas has determined that a trademark and patent infringement lawsuit involving Frito-Lay North America’s corn chip products can be maintained in the Eastern District of Texas because it has jurisdiction over the defendants and the defendants failed to show that it was “clearly more convenient” to litigate the matter in Arkansas. Frito-Lay N. Am., Inc. v. Medallion Foods, Inc., No. 12-74 (E.D. Tex., order entered March 30, 2012). Details about the case are included in Issue 427 of this Update. According to the court, after Frito-Lay notified the defendants that their BOWLZ product infringed its patent and trade dress rights, the defendants filed a complaint for declaratory relief in the Eastern District of Arkansas. Frito-Lay filed its suit the same day in the Eastern District of Texas. The Arkansas court stayed that action pending the Texas court’s ruling on jurisdiction and venue, noting that “[i]f the…
Frito-Lay North America, Inc. has filed a trademark and patent infringement lawsuit in a Texas federal court against a company that purportedly makes a similar tortilla chip product and sells it in similar packaging. Frito-Lay N. Am., Inc. v. Medallion Foods, Inc., No. 12 00074 (E.D. Tex., filed February 10, 2012). At issue are Frito-Lay’s TOSTITOS SCOOPS! ® tortilla corn chips, which have a distinctive shape for use with salsa, guacamole and other dips. According to the complaint, Frito-Lay has registered the shape, brand design, and product and brand names as marks with the U.S. Patent and Trademark Office and holds several patents for the processes and systems used to manufacture the chips. The defendant makes and sells a product called BOWLZ, which Frito-Lay alleges infringes its marks, trade dress and patents. With counts for federal trademark infringement, trade dress infringement and unfair competition, federal trademark dilution, patent infringement, common law…
The Equal Opportunity Employment Commission (EEOC) has filed a claim under the amendments to the Americans with Disabilities Act against a company that allegedly discharged a morbidly obese man. EEOC v. BAE Sys., Inc., No. 11-03497 (S.D. Tex., filed September 27, 2011). According to the EEOC, “at the time of his discharge, [Ronald] Kratz was qualified to perform the essential function of his job as a material handler II. BAE refused to engage in any discussion with him to determine whether reasonable accommodations were possible that would have allowed him to continue to perform the essential function of his job … The suit asserts that BAE replaced Kratz with someone who was not morbidly obese.” News sources have reported that Kratz, who weighed 450 pounds when the military vehicle manufacturer hired him, gained 200 pounds over the 16 years he was employed. He claims that his weight never interfered with his job…
A Texas resident has filed a putative class action against the Kashi Co. and its parent, the Kellogg Co., in a California federal court, alleging that the company falsely labels and markets its products as “all natural” when they actually contain processed and synthetic ingredients, some of which are not generally recognized as safe by the Food and Drug Administration (FDA). Bates v. Kashi Co., No. 11-1967 (S.D. Cal., filed August 24, 2011). Seeking to certify a nationwide class of consumers, the plaintiff names in the complaint dozens of ingredients used in Kashi snack, cereal, pizza, fruit bar, waffle, shake, trail mix, cookie, and cracker products, explains how they are produced and indicates whether they or the processes that create them are hazardous or toxic. For example, the plaintiff claims that sodium selenite is a hazardous substance. “The FDA has not declared it generally recognized as safe as a food…
