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…
Tag Archives trade dress
Saeilo Enterprises Inc., and Alphonse Capone Enterprises Inc., have reportedly reached a settlement in a lawsuit alleging trademark and trade dress infringement for a bottle of vodka branded as “Tommy Guns Vodka” and shaped like Saeilo’s Thompson submachine gun. Saeilo Enterprises, Inc. v. Alphonse Capone Enterprises, Inc., No. 13-2306 (N.D. Ill., notification of docket entry filed April 21, 2015). The gun manufacturer alleged in its complaint that the vodka company misappropriated the trade dress and trademark of the Thompson gun with the shape of the bottle and the name, and Saeilo sought an injunction, damages and attorney’s fees. A notice filed with the court indicates that the parties have reached a settlement and will file a stipulation to dismiss, but terms of the settlement were unavailable. Issue 562
Ina Garten, the chef who hosts Food Network’s “Barefoot Contessa,” and her company have filed a lawsuit against a seafood producer for allegedly infringing the Barefoot Contessa mark with its line of “Contessa Chef Inspired” frozen dinners. Barefoot Contessa Pantry LLC v. Aqua Star (USA) Co., No. 15-1092 (S.D.N.Y., filed February 17, 2015). Barefoot Contessa, the company that owns the trademarked name, agreed in 2012 to license the mark to unrelated entity Contessa Premium, a frozen- dinner manufacturer, on the condition that Garten and the company had strict control over the quality of the dinners produced and marketed under the Barefoot Contessa name. In April 2014, Contessa Premium sold its assets to OFI Imports, Inc. and its parent company, Aqua Star, according to the complaint. The day after the sale, Barefoot Contessa apparently terminated the license and refused to grant OFI a new license, “given OFI’s lack of experience in…
Let’s Buy British Imports (LBB Imports) has reportedly agreed to stop importing Cadbury chocolate made overseas pursuant to the settlement of a lawsuit in which Hershey Co. alleged that the importer violated the candy company’s trademarks and trade dress of Cadbury, Kit Kat® and other products by selling versions produced internationally. Hershey Co. v. LBB Imports LLC, No. 14-1655 (M.D. Penn., settlement date unknown). The settlement agreement apparently restricts the importation of all Cadbury chocolate as well as Kit Kat® bars, Toffee Crisps, York Peppermint Patties, and Maltesers®. Many consumers have responded negatively to the settlement terms; a campaign to boycott Hershey began on Twitter, and a MoveOn.org petition to protest Hershey’s trademark protection actions has garnered more than 25,000 signatures. The protesters reportedly argue that British Cadbury chocolate tastes better because of its ingredients—the British version of Cadbury’s Dairy Milk bar contains milk as its first ingredient while the American…
A Texas federal court has rejected the argument that the founders of Gina’s Italian Kitchen infringed New York Pizzeria, Inc.’s (NYPI’s) trademark flavor in its Italian dishes. New York Pizzeria, Inc. v. Syal, No. 13-335 (U.S. Dist. Ct., S.D. Tex., order entered October 20, 2014). NYPI alleged that its former vice president and his business partner stole trade secrets, including recipes, and used them to infringe NYPI’s distinctive flavors and plating methods at their new restaurant, Gina’s Italian Kitchen. They allegedly obtained a franchisee’s username and password and used it to log onto NYPI’s franchisee website, which held, among other things, recipes for NYPI’s menu items. The court refused to dismiss the claims for violations of the Computer Fraud and Abuse Act and the Stored Communications Act stemming from alleged access to the franchisee website. The court then addressed NYPI’s Lanham Act claims. Asserting that “no special legal rule” prevents the…
Hershey Co. has filed a complaint in Pennsylvania federal court alleging that LLB Imports infringes its trademarks and trade dress for several of its products, including Reese’s, York, Cadbury, Malteser, Kit Kat, and Rolo. Hershey Co. v. LLB Imports LLC, No. 14-1655 (M.D. Penn., filed August 25, 2014). According to the complaint, LLB Imports has been selling Toffee Crisp, Yorkie, Maltesers, Cadbury, Kit Kat, and Rolo products manufactured outside of the United States bearing nutritional information panels required by other countries, and the sale of the products allegedly infringes trademarks and trade dress owned by or exclusively licensed to Hershey. In addition to several trademark infringement claims, the candy company alleges that Toffee Crisp infringes the trade dress for Reese’s, citing its shade of orange and outlined yellow script, as well as the trade dress of Cadbury, Kit Kat and Rolo. Hershey asks for an injunction, a declaration that LLB violated the…
The Sixth Circuit Court of Appeals has determined that the red dripping wax seal that Maker’s Mark Distillery has registered as a trade dress element used on its Kentucky bourbon bottles is protected under trademark law due to its strength and distinctiveness in the marketplace, thus upholding a lower court ruling that Jose Cuervo infringed the mark by using a similar element on its tequila bottles. Maker’s Mark Distillery, Inc. v. Diageo N. Am., Inc., Nos. 10-5508/5586/5819 (6th Cir., decided May 9, 2012). With the apparent care of a connoisseur, the opinion’s author opens with a detailed history, part legend, of the birth of bourbon and explains how Maker’s Mark came to use the red dripping wax seal on its bottles. According to the court, the evidence fully supported the district court’s evaluation of the strength of the mark and its balancing of the factors regarding consumer confusion over Jose Cuervo’s…
Hormel Foods, LLC has filed a complaint in a Minnesota federal court against a company that also makes a canned meat product, alleging that the company is infringing Hormel’s SPAM® trademark, which consists of yellow lettering on a blue background. Hormel Foods, LLC v. Zwanenberg Food Group (USA), Inc., No. __ (D. Minn., filed March 30, 2011). The defendant allegedly began selling its product in October 2010 in a can with yellow labeling on a blue background. When Hormel sent a cease and desist letter, the company allegedly switched to a new design, white on a red background. Thereafter, the defendant resumed using the yellow on blue background label for products shipped to the Philippines and Japan. According to the complaint, Hormel has produced 7 billion cans of SPAM® products, making the brand “a famous American icon. Its timelessness has earned it roles in films, a fan club and a…
Mini’s Cupcakes, Inc. has sued LuAnn’s Cupcakes, Inc. in a federal court in Utah, claiming the infringement of trade dress rights by LuAnn’s sale of cupcakes substantially the same in appearance as Mini’s gourmet “Breakfast at Tiffany’s” cupcake. Mini’s Cupcakes, Inc. v. LuAnn’s Cupcakes, Inc., No. 10-457 (D. Utah, filed May 14, 2010). The distinctive design allegedly features “vanilla cake, blue cream cheese frosting and silver and white gems. According to Mini’s, LuAnn’s “Tiffany Jewel” cupcakes are so similar that the “ordinary observer” will be confused about the origin of LuAnn’s product. The plaintiff alleges trade dress infringement, unfair competition, false designation of origin, passing off, and false advertising under federal law; common law unfair competition, misappropriation, and trade dress infringement under state law; and vicarious trade dress infringement against a supermarket that distributes the alleged infringing cupcakes. Mini’s seeks injunctive relief, an accounting of profits, compensatory damages, attorney’s fees, and…
