Monthly Archives: July 2013

Excellent New York Times Article on Effort to Find Transgenic Solution to “Save the Orange”

The New York Times has a nice article called A Race to Save the Orange by Altering its DNA.  It chronicles the problem faced by Ricke Kress, the president of Southern Garden Citrus, to combat the disease called “citrus greening” caused by the bacteria known as  C. liberibacter asiaticus.  Mr. Kress embarked on an effort to find a solutions based on genetic engineering, believing it was the only prudent way to combat the scourge.

An emerging scientific consensus held that genetic engineering would be required to defeat citrus greening.  “People are either going to drink transgenic orange juice or they’re going to drink apple juice,” one University of Florida scientist told Mr. Kress.

This potential solution, however, brought with it another problem:

But the idea of eating plants and animals whose DNA has been manipulated in a laboratory — called genetically modified organisms, or G.M.O.’s — still spooks many people.  Critics worry that such crops carry risks not yet detected, and distrust the big agrochemical companies that have produced the few in wide use.  And hostility toward the technology, long ingrained in Europe, has deepened recently among Americans as organic food advocates, environmentalists and others have made opposition to it a pillar of a growing movement for healthier and ethical food choices.

It is Mr. Kress’ belief, however, that these broad concerns unfairly malign transgenic solutions that can decrease the use of chemicals and pesticides and are necessary to protect against devastating bacteria.  Moreover:

[Mr. Kress] did not aim to hide anything from consumers, but he would want them to understand how and why his oranges were genetically engineered.  What bothered him was that a label seemed to lump all G.M.O.’s into one stigmatized category.

Please see the entire article here.

Lawsuit Charges Peace Sign Pretzels with Patent Infringement


The Pittsburgh Gazette reports on a lawsuit initiated by Leslie Friend, owner of a design patent for a pretzel shaped like a peace sign.  The suit names Keystone Pretzels and Laurel Hill Foods as defendants, alleging that the former makes the infringing pretzels and the latter sells them.

In general terms, a US design patent relates to the ornamental design of an object having practical utility while a “utility patent” protects the way an article is used and works.  Design patents are classified into 33 classes of subject matter, with Ms. Friend’s design patent assigned to Class 1 pertaining to “Edible Products.”

Given the nature of this case, a key issue will likely be the validity of the design patent, including the state of the prior art and whether it is “obvious.”  Ms. Friend’s design patent was filed in 1999 and there may be a question of whether peace-sign pretzels were sold well before that date.  As for obviousness, the Federal Circuit’s two-part test for determining whether a design patent is obviousness provides that (1) the prior art is viewed through the lens of one of ordinary skill in the art to determine “whether to combine earlier references to arrive at a single piece of prior art for comparison with the design or to modify a single prior art reference” and (2) once that piece of prior art has been constructed, “obviousness, like anticipation, requires application of the ordinary observer test, not the view of one skilled in the art.”  

Update: Judge Stays Class Action Suit Pending FDA Determination on Whether GMO Ingredients Can Be Labeled “All Natural”

Last month I wrote about the Court’s preliminary ruling in the class action  lawsuit targeting Gruma Corporation with respect to labeling its Mission® tortilla chips as “All Natural” despite the presumable presence of GMO corn.   The court stated its view that deference to the FDA appeared to be the appropriate course in light of the primary jurisdiction doctrine but allowed supplemental briefing before it rendered a final ruling.

On July 11, the Court that ruling final, noting a “gaping hole” in the FDA’s regulations.  On the one hand, the FDA has reaffirmed “its decision to not require special labeling of all bioengineered foods.”   But on the other hand, “[w]ith respect to the use of the term ‘natural’ on food labels, the agency has published non-binding guidance defining that term to mean that ‘nothing artificial or synthetic (including all color additives regardless of source) has been included in, or has been added to, a food that would not normally be expected to be in the food.'”  Thus, “the FDA has not addressed, even informally, the question of whether foods containing GMO or bioengineered ingredients may be labeled ‘natural’ or ‘all natural,’ or whether GMO or bioengineered ingredients would be considered ‘artificial or synthetic.’”

In other words, “there is no direct regulation by the FDA of the term ‘natural,’ nor any requirement that a company disclose on a food product’s label whether it contains GMOs.”   Significantly, for purposes of the primary jurisdiction doctrine, the Court found that the FDCA and NLEA unquestionably and squarely give the FDA authority to determine whether food labels may properly state that GMO products can be labeled “all natural.”

Accordingly, the Court referred to “the FDA, for an administrative determination, the question of whether and under what circumstances food products containing ingredients produced using bioengineered seed may or may not be labeled ‘Natural’ or ‘All Natural’ or ‘100% Natural.’”   The case was stayed for six months with the potential for additional extensions of time based on good cause, including an indication from the FDA that it intends to resolve this issue.

Wendy’s Sues United Dairy Farmers Over “Frosty” Trademark


Wendy’s International Inc. has filed a trademark suit against the United Dairy Farmers, Inc. in the Southern District in connection with its FROSTY trademark.  In the lawsuit, Wendy’s alleges that, “In an effort to exploit and improperly trade upon the famous Frosty brand, [United Dairy Farmers] has deliberately and unlawfully appropriated plaintiffs’ intellectual property rights through its sale of dairy dessert products under the marks ‘Frosties’ and ‘Frosty Malts,’ some of which also use a confusingly similar red and yellow packaging trade dress to that used by plaintiffs.”

Wendy’s does not appear to have a federal registration for its FROSTY trademark and its first-alleged claims are for trademark dilution with the subsequent clams for infringement and unfair competition.  Dilution claims are most often used to protect famous marks against non-competing or unrelated products.

Please  the Complaint here.

Sixth Circuit Revives “5-Hour Energy” Trademark Claim Against “8-HR Energy”

Last September I reported on the Sixth Circuit reversed a district court’s rulings against Innovation Ventures, LLC regarding a trademark and false advertising dispute involving its 5-Hour Energy product and a competing “6-Hour Energy” drink.

This past week, the Sixth Circuit saved Innovation Ventures again in similar dispute against an “8-HR Energy” product made by Bhelliom Enterpise Corp.  As reported by Law360:

The appeals court overturned a lower court’s grant of summary judgment to Bhelliom, ruling on June 28 that there remains a factual dispute over whether the marketing for 8-HR Energy infringed Innovation Ventures’ trademark rights for 5-hour Energy.

The decision was not a complete win for Innovation Ventures, however.  The Sixth Circuit declined the company’s bid to go one step further and rule that Bhelliom had infringed its trademark, deciding that the trademark infringement question should be settled in the lower court.

Please see the complete write-up here.  Notably, the same district judge is handling both cases and the Sixth Circuit noted that its earlier ruling in the “6-Hour Energy” lawsuit is equally applicable and controlling with respect to the more recent “8-HR Energy” dispute.