Please see the Court’s ruling here and a complete write-up on this decision here.

For many pundits, this case involved the big question of whether self-replicating products such as soybeans were subject to the legal doctrine of patent exhaustion, which shields legitimate purchasers of patented products from infringement claims with regard to what they do with that product.  But, of course, that doctrine does extend to copying the patented product.  For self-replicating products, these principles are in considerable conflict.  May the purchaser do what they want with the replications or are they infringing copies?

On Monday, a unanimous Supreme Court held that, in Mr. Bowman case, it was the latter.   As Justice Kagan wrote:

Were the matter otherwise, Monsanto’s patent would provide scant benefit.  After inventing the Roundup Ready trait, Monsanto would, to be sure, “receiv[e] [its] reward” for the first seeds it sells.  …. But in short order, other seed companies could reproduce the product and market it to growers, thus depriving Monsanto of its monopoly.  And farmers themselves need only buy the seed once, whether from Monsanto, a competitor, or (as here) a grain elevator.  The grower could multiply his initial purchase, and then multiply that new creation, ad infinitum—each time profiting from the patented seed without compensating its inventor.

Just as as significantly, however, Justice Kagan underscored that the Court’s decision was a limited to the particular facts before it and  should not be viewed as applying to all self-replicating products.

Our holding today is limited—addressing the situa- tion before us, rather than every one involving a self- replicating product.  We recognize that such inventions are becoming ever more prevalent, complex, and diverse.  In another case, the article’s self-replication might occur outside the purchaser’s control.  Or it might be a necessary but incidental step in using the item for another purpose.

Please read the Court’s complete opinion here and check out NPR’s nice report on this issue here.

From the Boston Globe:

Boston Beer Company, maker of Samuel Adams, has filed a trademark for “Boston Strong” 26.2 Brew in the beer category. The trademark would allow for Boston Beer’s annual Marathon beer, “26.2 Brew,” to be renamed with an eye toward supporting the victims of this year’s tragedy.

Boston Beer has long been a sponsor of the Marathon, brewing the race’s official beer. In light of last week’s events, the company has pledged to donate all 2013 profits from the Boston 26.2 Brew to the Greg Hill Foundation to support the victims and their families. The company has also pledged to donate 100 percent of next year’s profits to Marathon-related charities.

And before any cynics question whether the maker of Samuel Adams beer is trying to capitalize on this trademark, Boston Beer has made it known that if the trademark is approved, it “will allow others in the beverage category to use the ‘Boston Strong’ phrase so long as 100 percent of profits are donated to charity.”

Chalk this one up to regulation conformity winning  over common sense.   According to the BBC, the UK’s Food Standards Agency  ”issued an allergy alert saying the presence of peanuts was not declared on Booths’ own brand packets of monkey nuts.”  Monkey nuts is the name used in the UK for shelled peanuts.   And the product at issue was a clear bag of  ”monkey nuts.”  Because the presence of peanuts was not declared on a clear package of shelled peanuts, the Booth’s supermarket chain recalled the product and issued a notice to its customers who might suffer from a specific peanut allergy.  Call me crazy, but displaying actual peanuts as the sole product being purchased seems like a far better allergen warning than any label that might accompany that product.  Then again, there’s always a slippery slope when regulations are applied differently to some products as compared to others.

“Facts Up Front” is led by GMA and the Food Marketing Institute and was  launched in January 2011 as a type of “self regulation” by the industry.   The Facts Up Front label is intended to highlight key nutrient information on the front of packages.  Specifically, the label shows calories per serving and information on three nutrients to limit in your diet: saturated fat, sodium and sugar.  Labels may also have information on one or two nutrients that Americans need to get more of as part of a healthy diet.  These “encouraged” nutrients will only appear on a package if the product contains 10 percent or more of the daily value per serving of the nutrient and meets the FDA requirements for a “good source.”

According to GMA:

“Facts Up Front empowers consumers to make informed choices.  It arms them with critical nutrition information about their favorite products,” said Pamela G. Bailey, President and CEO of the Grocery Manufacturers Association. “But to make the most of Facts Up Front, Americans need to understand what that information means, and how it relates to their calorie and nutrient needs.  Through this website, we are providing consumers with the knowledge and tools they need to build a healthful diet.”

Because no FOP labeling scheme is perfect, the government is unlikely to step in with its own regulations for FOP labeling so long as the Facts Up Front scheme gains wide industry acceptance.

Saeilo Enterprises, Inc., whose Kahr Arms divisions is a manufacturer of firearms  including the Thompson submachine gun (a.k.a. “Tommy Gun”),  filed suit on March 27, 2013 against Alphonse Capone Enterprises, Inc.  for selling Tommy Guns Vodka.  As shown above, this vodka is also sold in a bottle shaped just like the well-known gun that gained notoriety in the “gangster era” of the 1920′s.

Saeilo not only claims common law trade dress rights in the design of the Tommy Gun, but is the owner of United States trademark Reg. No.  2,885,628 for the word mark “Tommy Gun” and Illinois state registration number 100887 for the Tommy Gun design.

Notably, the Defendant had also obtained federal trademark registrations for  the Tommy Gun word marks and for the bottle design, which date back to 2004 and 2005.  See Registration Nos. 2,849,028, 2,696,412, 2,955,440 and 3,402,327.

Based on the alleged infringement of these rights, Saeilo has alleged ten different claims, including  trademark infringement,  trademark dilution, unfair trade practices and for cancellation of the defendant’s registered marks.

Please see the Complaint here.

Earlier in the case, plaintiffs had argued that it would “have experts that will line up and they’ll be able to show, pursuant to FDA regulation, that this is a chemical process, it’s not a biological process.”  But in response to the summary judgment motion, they simply asked the Court to “take judicial notice of United States Patent law,” and rule that that HFCS is not natural because patents have been issued for the process of producing it.  In a significant retort, the Court noted:

[Plaintiffs'] argument is that if HFCS were a naturally occurring substance such as “a new mineral discovered in the earth or a new plant found in the wild” it would not be patentable.  ….  “United States Patent law” is not a proper subject of judicial notice under Federal Rule of Evidence 201 and the request is denied.  Plaintiff’s request is properly characterized as an argument that HFCS is not natural as a matter of law.  But plaintiffs have cited no legal authority supporting their contention that if the process to produce an ingredient is patented, that fact, in and of itself, automatically renders it artificial.  This is merely an extension of their rhetoric that HFCS is artificial because it “cannot be grown in a garden or field, it cannot be plucked from a tree, and it cannot be found in the oceans or seas of this planet.”  ….  In the face of a motion for summary judgment, rhetoric is no substitute for evidence.

The Court then turned to the issue of whether the labels may nevertheless be misleading because AriZona admitted it changed its labels to add the language “All Natural Tea,” “No Preservatives,” “No Artificial Color,” and “No Artificial Flavor” because some customers were confused by the terms 100% natural and asked “100% natural what?”  Plaintiffs argued that this was an admission that the labels were confusing.  The Court rejected that argument, noting that this “admission” simply indicated that “everything in” the beverages is natural, and “that defendants included the additional claims on the labels specifying that they contain all natural tea without preservatives, artificial color, and artificial flavor to clarify that to confused customers.”

Next, the Court also noted that “plaintiffs have no evidence to support their prayer for restitution and disgorgement” and did not “offer not a scintilla of evidence from which a finder of fact could determine the amount of restitution or disgorgement to which plaintiffs might be entitled if this case were to proceed to trial.”

Finally, the Court sternly criticized plaintiffs’ counsel in the context of decertifying the class, noting that they had “been dilatory and has failed to prosecute this action adequately.”

Please see complete ruling here.

Generally, food products with a name that includes a geographic region must originate from that region.  After all, if you purchase “Kalamata Greek Olives” you would expect them to come from Greece.  On the other hand, some product names with geographic term have evolved such that consumers understand that they  describe a type of product rather than the product’s geographic origin.  ”French fries” and “Belgian waffles” are prime examples.  So what does this mean for “Greek yogurt”?

In the UK, this issue was decided (for the time being) on March 26th when a judge sided with the Greek company FAGE and issued a permanent injunction against Chobani prohibiting it from marketing its US-made yogurt as “Greek” in the UK.  FAGE was the first brand of “Greek yogurt” introduced in the U.S. back in 1998 while Chobani entered the market in 2007.  FAGE gave the yogurt “Greek” in its title because, presumably, Greek yogurt was more appealing than strained yogurt.  FAGE and “Greek yogurt” product category went on to enjoy massive success.

According to its UK lawsuit, FACE claims that only yogurt made in Greece should be called ‘Greek’ and yogurt made elsewhere should be described as ‘Greek-style’.  Chobani disagreed and asserted that “Greek” refers to the straining process used to make the yogurt and not a product made in Greece.  On its website, Chobani says: “The word ‘Greek’ describes how we make the yogurt in our products.  We make our yogurt the authentic way, never adding any thickeners.  Instead, we use a centuries-old technique of straining to remove excess liquid. This is why Chobani is so thick, creamy and has two times more protein per serving than regular yogurt.”  A High Court UK judge ruled that Chobani was misrepresenting its product to British consumers by using labeling that calls the product “Greek yoghurt.”  In particular:

I have concluded that, in fact, a substantial proportion of those who buy Greek yoghurt in the UK (probably well in excess of 50% of all Greek yoghurt buyers) think that it is made in Greece, and that the proportion of those Greek yoghurt buyers to whom it matters is substantial, even though it is a modest proportion of yoghurt eaters as a whole.  It follows that, in my judgment, FAGE has succeeded in demonstrating that substantial goodwill has become attached to the use of the phrase Greek yoghurt, in the sense that it creates pulling power, rather than merely denotes a geographical origin to which buyers are indifferent.

The ruling does not bar Chobani from labeling its British product as “Greek style” yogurt.  Notably, unlike hundreds of products in Europe that enjoy a special “protected” status from European authorities (such as Parmesan cheese or Champaign that the EU says have distinct flavors and qualities from specific geographic regions), the term ‘Greek yogurt’ does not have special protected status.

The order can be found here and additional information here.

In its announcement, the NPA stated that it’s working towards establishing guiding principles regarding the labeling of foods and dietary supplements containing or produced by GMO.   In this regard, the NPA’s board of directors adopted the following concepts should be included:

• NPA believes consumers have the right to be informed whether genetically modified components are in their foods.
• NPA supports and encourages the voluntary labeling on non-GMO foods.
• NPA believes that consideration of federal law promoting a uniform standard is warranted to avoid separate standards for GMO labeling at the state level.
• NPA opposes a private enforcement provision, which encourages abusive litigation, to impose compliance.
• NPA supports the FDA consistently reviewing the concept of bio-equivalency of genetically modified ingredients in light of the most recent scientific studies.

Please read the NPA’s white paper on its position here.

Kern’s Kitchen hasn’t been shy about challenging others in court.  In recent years, it has sued Bon Appetit magazine and a Frankfort restaurant called Rick’s White Light Diner.

Bon Appetit won a legal victory when a judge in 1987 found the name to be generic, but the U.S. 6th Circuit Court of Appeals overturned that decision.

Please see the complete article here.