American Beverage Corp., which sells alcohol cocktails under the “Darty” mark, has filed a notice of opposition to Boston Beer Co.’s application for a “Day Party” mark for beer. Am. Bev. Corp. v. Boston Beer Corp., No. 91239170 (T.T.A.B., notice filed January 29, 2018). The notice asserts that the "colloquial meaning of DARTY is 'Day Party.'" American Beverage claims priority in filing and first use date, and the notice alleges that the goods are so similar as to cause consumer confusion about their source.
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The U.S. Court of Appeals for the Ninth Circuit has vacated and remanded a lower court’s grant of summary judgment in favor of Whole Foods Market Inc. in a trademark infringement case related to the company’s “Eat Right America” promotion. Eat Right Foods Ltd. v. Whole Foods Mkt., Inc., No. 15-35524 (9th Cir., entered January 29, 2018). Plaintiff Eat Right Foods (ERF), a New Zealand-based maker of organic foods, registered U.S. marks for “EatRight” and “Eat Right” in 2001 and 2003; ERF has also sold a line of gluten-free cookies to Whole Foods. In 2009, Whole Foods contracted with Nutritional Excellence, LLC, which previously did business as “Eat Right America,” to use a food-scoring system to advertise the nutritional value of products to shoppers. In early 2010, an ERF executive discovered Whole Foods using an “Eat Right America” promotion and contacted Whole Foods to suggest the grocery buy its brand…
A California federal court has refused to dismiss a trademark infringement and right of publicity lawsuit filed by the estate of Thelonious Monk against a craft brewery selling “Brother Thelonious Belgian Style Abbey Ale,” finding the estate sufficiently pleaded all causes of action. Monk v. North Coast Brewing Co., No. 17-5015 (N.D. Cal., entered January 31, 2018). Monk’s son had agreed to allow North Coast Brewing Co. to use the musician’s name, likeness and image on the ale in exchange for the brewery’s donation of a portion of the profits to the Thelonious Monk Institute of Jazz, but he allegedly revoked his consent because the brewer extended the use to apparel and other merchandise. The court found plausible that the estate had a protectable interest in Monk’s name, image and likeness and that it had alleged enough facts to support a possible finding of likelihood of confusion. Although it noted…
A California federal jury has awarded $710,001 to Grumpy Cat Ltd., which had alleged that a beverage company infringed its copyright and trademarks. Grumpy Cat Ltd. v. Grenade Beverage LLC, No. 15-2063 (C.D. Cal., verdict entered January 23, 2018). The dispute arose after Grumpy Cat licensed its trademark to Grenade Beverage LLC for a line of iced-coffee products; Grumpy Cat filed suit when it learned that Grenade was also using Grumpy Cat’s likeness on coffee products and apparel—which fell outside the scope of the companies' agreement—and had registered the domain name grumpycat.com. The jury awarded Grumpy Cat $1 for breach of contract and $710,000 for copyright and trademark violations. The parties agreed before trial that the court would rule on the cybersquatting and accounting claims as well as Grenade’s counterclaims for declaratory relief for ownership and non-infringement of trademark, copyright and domain name.
Iceland has filed a notice of opposition to a trademark application filed by an Ecuadorean company for use of the mark “I ' CELAND” for vodka, arguing that consumers will be confused as to the origin of the product, which features a label with images of snow-capped mountains and the term “Iceland Vodka.” Republic of Iceland, Ministry for Foreign Affairs v. Cosmica Cia. Ltda., No. 91239021 (T.T.A.B., notice filed January 17, 2018). Iceland’s Ministry for Foreign Affairs coordinates the exports of Icelandic businesses and alleges it is responsible for protecting the “Iceland” mark, which has been used for various Icelandic alcohol products, including vodka. Iceland registered its mark with the U.S. Patent and Trade Office in 2009.
A winery has filed a notice of opposition against BuzzFeed Inc.'s trademark application for Wordy Wine, a wine brand allowing purchases to customize the label. Kalaris v. BuzzFeed Inc., No. 91238653 (T.T.A.B., filed December 29, 2017). Although the words “Wordy Wine” do not appear on the purchaser’s custom label, Axios Napa Valley Wines alleges the term is nearly identical to the mark for its line of “Worthy” wines.
Sazerac Brands has filed a notice of opposition to ROSC Global's application to trademark “St. Paddy’s Brigade” for agave liquor, arguing that consumers are likely to confuse the mark with Sazerac’s “Paddy” line of Irish whiskies. Sazerac Brands LLC v. ROSC Global, LLC, No. 91237863 (T.T.A.B., filed November 16, 2017). ROSC Global applied for the mark in May 2017, while Sazerac asserts the company and its predecessors-in-interest have used the “Paddy” marks for alcoholic beverages since 1927.
Snyder’s-Lance, Inc. has filed a lawsuit in North Carolina federal court appealing a Trademark Trial and Appeal Board (TTAB) ruling that found the term “Pretzel Crisps” to be generic, arguing that TTAB “failed to consider all the evidence of the public’s perception of the Pretzel Crisps brand, despite clear direction from the Federal Circuit to do so.” Snyder’s-Lance, Inc. v. Frito-Lay N. Am., Inc., No. 17-0652 (W.D.N.C., filed November 6, 2017). TTAB initially deemed “pretzel crisps” generic after Frito-Lay opposed Snyder's-Lance’s application for a trademark; that decision was vacated by the Federal Circuit and remanded for reconsideration. Snyder's-Lance argues that during seven years of litigation, its Pretzel Crisps brand has become a market leader and is now the “number one product in the entire ‘deli cracker’ section in which it principally competes." The complaint also asserts that “both Frito-Lay and the TTAB panel agreed that ‘pretzel crackers’ generically and appropriately…
Candy company Sugarfina has filed a lawsuit alleging that Sweitzer LLC copied its “innovative, distinctive, and elegant product and packaging” as well as its "types of candy" and “protectable names.” Sugarfina, Inc. v. Sweitzer LLC, No. 17-7950 (C.D. Cal., filed October 31, 2017). Sugarfina asserts that it has approximately 140 lines of candy, presented in “museum-quality Lucite that emphasizes the artisanal and rarefied quality of a gourmet small-portion tasting experience,” and that Sweitzer copied the “size, shape, color or color combinations, texture, graphics and sales techniques” in its candy packaging and store designs. Claiming trade-dress infringement under the Lanham Act, federal and common law trademark infringement, unfair business practices, patent and copyright infringement, Sugarfina seeks damages, corrective advertising, accounting, restitution and attorney’s fees. Sugarfina filed a similar infringement claim against Sweet Pete's in June 2017.
The Trademark Trial and Appeal Board has affirmed a refusal to register microbrewery 8-Bit Aleworks' application for a trademark despite an agreement between the company and 8bit Brewing Company specifying that 8bit did not object to the use. In re 8-Brewing LLC, No. 86760527 (T.T.A.B., entered October 30, 2017). The court found the consent agreement to be ambiguous and confusing as to which marks were covered by the agreement and vague as to how trade dress and packaging would distinguish the products. Further, the agreement failed to demonstrate how the companies' trade channels were different. Accordingly, the court held that “the shortcomings in the consent agreement are such that consumer confusion remains likely” and affirmed the refusal to register the mark.
