Monthly Archives: February 2012

Label with Caution: My Q&A with Food Manufacturing on Front-of-Package Labeling

Posted on February 24, 2012 | Leave a comment

It was my privilege to participate in a Q&A with Food Manufacturing on Front-of-Package (FOP) labeling issues and related legal risks.  The full Q&A is available here.

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Posted in Front-of-Package Claims, Front-of-Package Litigation

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Connecticut Considers Legislation to Label Foods With Genetically Modified Ingredients

Posted on February 23, 2012 | 3 Comments

There’s a good write-up at FoodManufacturing.Com on proposed legislation in Connecticut to “require clear labeling on any food sold in the state that is completely or partially produced with genetic engineering.”  According to the article, “[p]roponents of the legislation say that genetically engineered foods pose allergy and other health risks and that the labels will increase safety for consumers.”  In response, an FDA spokeswoman said ”that genetically modified foods, as a class, pose no greater health risks than traditional foods” and “that genetically modified crops must meet regulatory standards and may undergo a voluntary consultation to ensure they are safe.”  See the full article here.

Needless to say, any state-by-state legislation of this issue would create significant challenges for food companies.

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Posted in Genetically Modified Organisms, Labeling

Frito-Lay v. Pretzel Crisps

Posted on February 21, 2012 | Leave a comment

In an article titled Trademarks Take on New Importance in the Internet Era, the New York Times highlights a dispute in which Frito-Lay is contesting  registration of the mark PRETZEL CRISPS with the USPTO’s Trademark Trial and Appeal Board (TTAB).   As noted in the article:

Frito-Lay contends that Pretzel Crisps cannot be registered as a trademark because it is a generic term. “Like ‘milk chocolate bar,’ the combination of ‘pretzel’ and ‘crisp’ gains no meaning as a phrase over and above the generic meaning of its constituent terms,” the company wrote in a 2010 motion.

The dispute will ultimately come down to whether the public views this term as being “generic” or as having trademark significance, i.e., as identifying the source of the goods.  Notably, PRETZEL CRISPS have been on sale since 2004 and it appears there is evidence supporting each side’s position.

See full article here.

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Posted in Trademark and Trade Dress, USPTO

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Safeguarding the Secret Sauce

Posted on February 21, 2012 | Leave a comment

Highlighted in the Articles section of this blog is a white paper I wrote titled Safeguarding the Secret Sauce: Protecting Brand Equity & Innovation in the Food Industry.   It is a high-level summary of intellectual property issues important to the food industry.   My favorite point from the article is the following observation by Don Mulligan, the CFO of General Mills:   The gross margin of a product “indicates how much more than the actual costs of the product itself the consumer is willing to spend” and thus measures “the intangible value of a product and of a brand.”  

On a somewhat related note, this post from Broad Street Licensing Group’s blog is quite enlightening regarding the ongoing battle between private label and national brands.

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Posted in Private Label, Trademark and Trade Dress

Sazerac Accuses Hood River Distillers of Infringing its FIRE Trademarks

Posted on February 17, 2012 | 1 Comment

On February 10, 2012, Sazerac Company, Inc. filed suit against Hood River Distillers, Inc. in Federal Court in Louisville.  Sazerac claims that its trademarks and trade dress relating to its FIREBALL cinnamon whiskey and FIRE WATER cinnamon liqueur are infringed by Hood Rivers’ new SINFIRE cinnamon whiskey.

In order to bolster its claim that consumers are likely to be confused by the SINFUL mark, Sazerac’s Complaint alleges, among other things, as follows:

“[Hood Rivers' SINFIRE] whisky is golden brown in color and is bottled in a clear flask-like bottle with red and orange flames arising from the bottom of a large black stylized “S.”  The “S” has a curly serpent-like tongue extending from the head of the letter, and a pointed devil’s tail at the lower end of the letter emerging from the flames.  “SINFIRE” is displayed in block font directly under the flames where the word “SIN” is in black and the word “FIRE” in red. The dominant color combination for the product package is black, red, and orange.”

See the full Complaint here.  Without more,  the use of “fire” in SINFIRE is likely not enough to find it confusingly similar to FIRE BALL and/or FIRE WATER, even though it applies to the same type of goods.  This case might therefore provide some interesting insights on the broader scope of a company’s rights as to additional design elements in its trademarks and trade dress.

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Posted in Beer wine and spirits, Trademark and Trade Dress

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Quoted Today in the Chicago Daily Law Bulletin Regarding “All Natural” Claims.

Posted on February 14, 2012 | Leave a comment

I was happy to be quoted in today’s edition of the Chicago Daily Law Bulletin for an article titled “Food Makers Face Litigation Due To ‘Natural’ Claims.”   Among the quotes, I mention:

  • “Once you aren’t dealing with a from-the-earth product, it is difficult to draw the line between natural and ‘non-natural’ when describing food products on store shelves.”
  • “The main issue for the court is determining if that is misleading for a reasonable consumer,” Ter Molen said, adding that courts “are reluctant to get involved in this determination because they think this is either an inquiry that’s right up the FDA’s alley or a political question that should be resolved by the legislature.” 

 Here’s a link to the article (and yes, reprint rights were obtained from the Chicago Daily Law Bulletin).

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Posted in Front-of-Package Litigation, Natural Claims

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Welcome to the Food Identity Blog

Posted on February 11, 2012 | 1 Comment

With this blog, I hope to provide interested persons with news and insights regarding branding, labeling and intellectual property issues in the food and beverage industry.   These issues are all tied to a product’s intangible value and the public’s perception of a brand, that is, a food product’s “identity.”  Understanding the business and legal risks associated with these issues are critical to maximizing brand equity, protecting innovation, and minimizing risks.

Please feel free to ask questions, provide comments and/or link to this blog or any of my posts.

All the best,

David

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Posted in Uncategorized

Where things stand: The recent flood of “all natural” class action litigation

Posted on February 10, 2012 | 2 Comments
More to follow, but here’s a summary of the recent flood of class action lawsuits alleging that certain “all natural” claims are misleading and deceptive.  Expect more to follow.

  • Frito-Lay (filed January 30, 2012, in New York and December 14, 2011, in California): Frito-Lay is accused in two separate suits of marketing products as “all natural” when they included corn and vegetable oils made from genetically modified plants and organisms (“GMOs”). According to plaintiffs, “[t]he reasonable consumer assumes that seeds created by swapping genetic material across species to exhibit traits not naturally theirs are not ‘all natural.’”
  • Tropicana Products, Inc. (filed January 6, 2012): Suit claims that Tropicana’s not-from-concentrate orange juice is misleadingly labeled as “100% pure and natural” because it “undergoes extensive processing which includes the addition of aromas and flavors,” which “changes the essential nature” of the juice into a product“ engineered in laboratories” with a “shelf-life of more than two months.”
  • King Arthur Flour (filed November 14, 2011):  Alleges that King Arthur Flour markets at least 64 products with “All Natural” claims that include “several synthetic ingredients… including ascorbic acid, disodium phosphate, potassium carbonate and sodium acid pyrophosphate.”
  • ConAgra (filed November 8, 2011): ConAgra is accused of “engaging in a misleading advertising campaign in an effort to deceive customers into purchasing … [Wesson Canola Oil, Vegetable Oil, Corn Oil, and Best Blend] labeled and advertised as ‘100% Natural’” when they allegedly contain genetically modified ingredients.
  • Kashi (multiple suits filed in August and September of 2011): Alleges that a number of Kashi products were “falsely represented” as “all natural” and containing “nothing artificial” when they actually included “synthetic and unnaturally processed ingredients, including sodium molybdate, phytonadione, sodium selenite, magnesium phosphate, niacinamide, calcium carbonate, calcium phosphate, calcium pantothenate, pyridoxine … and other substances that have been declared to be synthetic substances by federal regulations.”
  • General Mills (filed October 28, 2011): Reference to Kix cereal as including “all-natural whole grain corn” alleged to be false and misleading because it allegedly included genetically modified corn.
  • Ben & Jerry’s Homemade, Inc. (filed on September 29, 2010): Alleges that consumers were misled who purchased certain Ben & Jerry’s “all natural” ice cream products containing“alkalized cocoa processed with potassium carbonate, a man made, synthetic ingredient.”25 The lawsuit continues even though Ben & Jerry’s agreed to remove the “all natural” labeling from all of its ice cream and frozen yogurt products.
  • AriZona Beverages (filed on March 3, 2010):  Alleges that several AriZona-brand beverages were marketed as “100% Natural” and “100% All Natural” but contained high fructose corn syrup and citric acid, which were alleged to be non-natural substances. Consumers complained that because of the labeling used on AriZona drinks, they “received something less than and different from what was promised and bargained for— a product that was not, in fact, all natural.”

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Posted in Front-of-Package Litigation, Natural Claims

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