Tag Archives trademark

Snyder's-Lance Inc. has voluntarily dismissed a lawsuit seeking to appeal a decision holding that it could not trademark "Pretzel Crisps" as a name for its product, which Frito-Lay North America Inc. had challenged before the Trademark Trial and Appeal Board. Snyder's-Lance Inc. v. Frito-Lay N. Am. Inc., No. 21-1758 (4th Cir., filed August 31, 2021). The dismissal concludes years-long litigation disputing whether the "Pretzel Crisps" mark was too generic to be registered. An appeal of a lower court's ruling that the term is generic had been pending until Snyder's-Lance's voluntary dismissal.

Tootsie Roll Industries has filed a trademark infringement action alleging Lafayette Bay Products, LLC, doing business as Spunky Pup, illegally copied its trade dress by manufacturing and selling a product called "Tootsie Pups." Tootsie Roll Indus. LLC v. Lafayette Bay Prods. LLC, No. 21-1997 (N.D. Ill., E. Div., filed April 14, 2021). Tootsie Roll Industries alleges that the dog treats sold as Tootsie Pups are shaped and colored like Tootsie Roll Midgees, "being brown and cylindrically shaped with a length approximately two times its diameter." Further, the treats are sold in packages that allegedly echo the Tootsie Roll Midgees packaging, including "prominent wording in the same position and the same white font, the large, dark brown middle panel, and the bright stripes on each side of the panel." Tootsie Roll Industries also notes that it has licensed its marks for sale on pet items, allegedly resulting in a likelihood of…

The U.S. Court of Appeals for the Fifth Circuit has ruled that H.J. Heinz Co. Brands did not violate the Metchup trademark when it introduced a poll letting consumers choose the name of its mayonnaise-ketchup blend, which ultimately chose "Mayochup" as the winner but included "Metchup" as an option. Perry v. H.J. Heinz Co. Brands LLC, No. 20-30418 (5th Cir., entered April 12, 2021). The district court found no likelihood of confusion between Heinz' "convenient, yet perhaps gratuitous, mixture" and the plaintiff's product, which has sold about $170 worth of either mayonnaise-ketchup or mustard-ketchup blends "from the lobby of a nine-room motel adjacent to his used-car dealership in Lacombe, Louisiana." The appeals court found that the Metchup name was one of more than 90 suggestions submitted by consumers in Heinz' poll on what the mayonnaise-ketchup combination should be called, which also included, as the court noted, "Saucy McSauceface, an apparent…

The U.S. Trademark Trial and Appeal Board (TTAB) has determined that "gruyere" is a generic name for the type of cheese and cannot be registered as a certification mark. Int'l Dairy Foods Assn. v. Interprofession du Gruyère & Syndicat Interprofessionel du Gruyère, No. 91232427 (T.T.A.B., entered August 5, 2020). Swiss and French associations attempted to register the mark and limit its use to cheese originating from the Swiss and French region of Gruyère, but several organizations filed notices of opposition, arguing that the term is generic. TTAB agreed, finding that a large number of cheese products sold in the United States as gruyere are produced outside of the Gruyère region, and consumer understanding of the term is not tied to a specific area. Accordingly, TTAB sustained the oppositions on the grounds that "gruyere" is generic.

According to the New York Times, Australia and New Zealand are disputing over the rights to produce manuka honey, a honey product that sells for about $100 per 500 grams. New Zealand producers seek to establish a protected designation of origin for manuka honey, but Australian producers argue that their production process creates the same resulting product. The New Zealand version of the product is created by bees that pollinate the manuka bush, while the bees in Australia create the honey with the nectar of the manuka bush as well as dozens of species in the same genus. One New Zealand producer reportedly said that calling the Australian product manuka honey is like "generalizing all the almonds and apricots and calling them plums"; the Australians argue that the related bushes are "nearly indistinguishable" because the species developed when Australia and New Zealand were part of the same land mass 65…

A California federal court has rejected a trademark infringement claim on the grounds that the company alleging preceding use of the trademark manufactures cannabis-infused edibles, which are illegal under federal law. Kiva Health Brands LLC v. Kiva Brands Inc., No. 19-3459 (N.D. Cal., entered September 6, 2019). The parties to the litigation—Kiva Brands Inc. (KBI) and Kiva Health Brands (KHB)—dispute the rights of the "Kiva" trademark, and KBI argues that its ownership stems from its predecessor company selling cannabis-infused edibles in California since 2010. "While KBI is only asserting California common law rights to the KIVA mark [], it is doing so as a defense to a federal trademark claim," the court found. "That defense relies on KBI's prior use of the mark. [] KBI's prior use was illegal under federal law []. KBI therefore did not make lawful prior use of the mark. [] To hold that KBI's prior…

H.J. Heinz Co. has filed a trademark infringement suit alleging Real Good Food Co. created and sold frozen appetizers described as "Poppers," which Heinz argues it owns the rights to for "frozen appetizers consisting primarily of vegetables, pork and/or cheese, not including shrimp." H.J. Heinz Co. Brands LLC v. Real Good Food Co., No. 19-0915 (W.D. Penn., filed July 26, 2019). Heinz further argues that Real Good Food Co. had actual knowledge of Heinz's rights to the Poppers mark because Real Good Food Co.'s website compares its products to Heinz's TGI Friday's-branded appetizers. Heinz alleges federal trademark counterfeiting, infringement, dilution and unfair competition and seeks injunctive relief, damages and destruction of infringing materials.

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…

Anchor Brewing Co. has filed an opposition against D.G. Yuengling & Son Inc.'s application to register "James River Steam Brewery" as a trademark, arguing that the proposed mark will confuse consumers familiar with its product Anchor Steam. Anchor Brewing Co. v. D.G. Yuengling & Son Inc., No. 91247967 (U.S.P.T.O., opposition filed May 3, 2019). Anchor asserts that it owns the rights to use "Steam Beer," which describes "an indigenous style of beer known as California common beer." The use of "James River Steam Brewery," Anchor argues, "is likely to create the false impression that Applicant's goods are provided by, related to, endorsed by, or associated with Opposer."

Sugarfina and Sweet Pete's have reached an agreement to settle allegations that Sweet Pete's infringed Sugarfina's trademarks, copyrights, patent and trade dress by copying the "museum-quality Lucite" used to package its candies. Sugarfina Inc. v. Sweet Pete's, No. 17-4456 (C.D. Cal., settlement notice filed March 5, 2019). Under the agreement, Sweet Pete's will pay $2 million and change its packaging from the allegedly infringing cubes.

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