The manufacturer that sells the Bosch®, Thermador® and Gaggenau® brands of home appliances has sued the Julia Child Foundation for Gastronomy and the Culinary Arts seeking a declaration that it has not infringed the defendant’s trademarks and copyrights or the publicity rights related to the late Julia Child. BSH Home Appliances Corp. v. The Julia Child Found. for Gastronomy & the Culinary Arts, No. 12-11590 (D. Mass, filed August 24, 2012). According to the complaint, Julia Child used the plaintiff’s Thermador® oven for many years both on the set of The French Chef TV program and in her personal kitchen, which, after she died, was donated to and appears in the Smithsonian Institution. The oven maker claims that it has used images of Julia Child “and references to the well-known historical fact of her use of Thermador products in various media, including on its website and on its social media web…
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A California winery has filed a complaint against Anheuser-Busch, LLC seeking a declaration that the winery has not infringed any of the brewer’s protectable trademark rights and that the winery’s use of the BOW TIE word mark and Bow Tie slogan to sell its wine “does not constitute unfair competition.” San Antonio Winery, Inc. v. Anheuser-Busch, LLC, No. 12-7067 (C.D. Cal., filed August 16, 2012). The winery claims that it started using the BOW TIE word mark in the United States in 2012 and had filed a trademark application for the mark in November 2011. After the application was published for opposition, Anheuser-Busch allegedly demanded that the winery abandon the application and refrain from using the BOW TIE word mark on the ground that the brewer held design marks depicting bow ties and that “there is a likelihood of consumer confusion, mistake, or deception between San Antonio’s BOW TIE Word Mark…
The U.S. Patent and Trademark Office (USPTO) has issued a final rule that incorporates certain changes that took effect in January 2012 under the Nice Agreement Concerning the Classification of Goods and Services for the Purpose of the Registration of Marks, to which the United States is a signatory. Among other matters, (i) Class 5 is changed from “dietetic substances adapted for medical use” to “dietary food and substances adapted for medical use”; and (ii) Class 32 is change from “non-alcoholic drinks; fruit drinks” to “non-alcoholic beverages; fruit beverages.” USPTO’s classification of goods and services under the Trademark Act is codified at 37 CFR part 6. See Federal Register, August 9, 2012.
The European Union (EU) General Court has affirmed a ruling of the Board of Appeal of the Office for Harmonisation in the Internal Market (Trade Marks and Designs) (OHIM) and dismissed the application of a beverage company to register “Royal Shakespeare” as a word mark for its scotch whiskey. Jackson Int’l Trading Co. Kurt D. Brühl GmbH & Co. KG v. OHIM, Case T-60/10 (Gen. Ct., decided July 6, 2012). According to the court, the Royal Shakespeare Co. had registered “Royal Shakespeare Company” three years before Jackson International sought to register its mark, the theater company’s mark has a reputation before the public at large and not among an elite as argued by Jackson International, and the beverage maker’s use of the mark would take “unfair advantage of the distinctive character or the repute of the earlier trade mark.”
A New York resident has filed a putative class action against Diamond Pet Foods and Amazon.com, seeking medical monitoring for pets that consumed recalled Salmonella-tainted pet food. Cohen v. Schell & Kampeter, Inc., d/b/a Diamond Pet Foods, No. 12-3299 (E.D.N.Y., filed July 2, 2012). Plaintiff Steven Cohen alleges that he fed his dogs Taste of the Wild® brand pet food, purchased from Amazon.com, and that they became ill, vomiting frequently, “which caused damage to Plaintiff’s property.” Seeking to certify a nationwide class and statewide subclass of consumers, the plaintiff alleges breach of implied and express warranty, strict products liability, violations of state consumer fraud laws, negligence, and unjust enrichment. In addition to medical monitoring, the plaintiff seeks actual damages or restitution, attorney’s fees, costs, and interest. A Canadian non-profit representing the interests of foie gras producers, a New York-based foie gras producer and a company that operates restaurants in California have…
The Wisconsin Supreme Court has decided which of the parties sued over an E. coli outbreak that sickened dozens of Sizzler Steak House patrons in 2000 and caused the death of a 3-year-old are liable for consequential damages, indemnity and costs under various supply chain and insurance contracts. Kriefall v. Sizzler USA Franchise, Inc., Nos. 2009AP1212 & 2010AP491 (Wis., decided June 29, 2012). Among other matters, the court ruled that Sizzler was entitled to (i) recover consequential damages for the meat supplier’s breach of implied warranties despite limiting language in the continuing guaranty provision of their contract, and (ii) indemnity from the meat supplier for Sizzler’s advance partial payment to the family of the deceased child “because the payment was not voluntary and the jury found that Sizzler was zero percent liable for the E. coli contamination.” The court also ruled that Sizzler could not recover its attorney’s fees despite a jury finding…
The Second Circuit Court of Appeals has upheld an award of $10,000 in sanctions under Federal Rule of Civil Procedure 11 for the filing of a frivolous action related to trademark infringement litigation between companies that make and sell hoisin sauce. Star Mark Mgmt., Inc. v. Koon Chun Hing Kee Soy & Sauce Factory, Ltd., Nos. 10-4931, 11-16 (2d Cir., decided June 13, 2012). Koon Chun prevailed, in part, on its claims of willful trademark infringement against Star Mark, based on Star Mark’s sale of counterfeit versions of Koon Chun’s hoisin sauce. A magistrate judge awarded damages and costs, and the Second Circuit affirmed. In the meantime, the parties were litigating Star Mark’s suit to cancel Koon Chun’s mark “on the theory that Koon Chun’s use of the word ‘hoisin’—which translates to ‘seafood’—was deceptive because the sauce did not contain seafood.” When considering this matter in a motion to amend…
According to news sources, Philippine Department of Justice Secretary Leila de Lima issued an opinion in May 2012, upholding a Department of Health (DOH) memorandum that prohibited multinational companies that make infant milk and other nutritional products from using registered trademarks that contain health and nutrition claims which may undermine breastfeeding and breast milk. The companies were not prohibited from selling or advertising their products as long as their marketing materials, including product labels, comply with DOH rules. DOH apparently took the action on the basis of data showing that the country has a weak breastfeeding culture. In issuing her ruling, de Lima rejected the companies’ contention that preventing a trademark owner from the right to use its own registered mark on its products constituted a deprivation of property without due process of law. She reportedly said, “deceptive marks and misdescriptive marks are absolutely unregistrable.” See Business Mirror, June 13,…
The Sixth Circuit Court of Appeals has determined that the Roskam Baking Co. did not infringe a trademark by using the term “Texas Toast” in selling its packaged croutons. T. Marzetti Co. v. Roskam Baking Co., No. 10-3784 (6th Cir., decided May 25, 2012). Marzetti apparently began using the Texas Toast mark for its frozen garlic bread in 1995 and then adopted the term for use with a crouton product sold in 2007. The company attempted to register the mark in 2009, but the applications were initially denied “because of the potential likelihood of confusion with the mark Texas toast for bakery goods.” Thereafter, they were approved for publication as, “at a minimum, suggestive.” The defendant filed an opposition to the trademarks in 2010, and Marzetti, learning about the company’s Texas Toast croutons, filed this trademark infringement action. The Sixth Circuit agreed with the district court that the mark is not…
The European Union (EU) Court of Justice has affirmed a General Court ruling that confectioner Lindt & Sprüngli, AG cannot register certain three-dimensional shapes, their colored wrappings or ribbons as European Community trademarks. Chocoladefabriken Lindt & Sprüngli AG v. Office for Harmonisation in the Internal Mkt. (Trademarks and Designs), Case No. C-98/11 P (E.C.J., decided May 24, 2012). Additional details about the case appear in Issue 376 of this Update. The mark was sought for the shape of a sitting rabbit with a red ribbon. According to the court, the shape was “typical” for chocolate rabbits and was thus “devoid of any distinctive character.” The court also found that the gold-foil wrapping and small bells and bows embellishments were “common elements in the case of chocolate animals.” The court further ordered the chocolatier to pay the costs of the appeal.
