Monthly Archives: February 2012

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

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.

Connecticut Considers Legislation to Label Foods With Genetically Modified Ingredients

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.

Frito-Lay v. Pretzel Crisps

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.

Safeguarding the Secret Sauce

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.

Sazerac Accuses Hood River Distillers of Infringing its FIRE Trademarks

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.

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

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).

Welcome to the Food Identity Blog

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