Monthly Archives: September 2014

Templeton Rye Whiskey Accused of Deceptive Advertising Because It’s Allegedly Not “Made In Iowa” and Not a Prohibition-Era Recipe

Templeton Rye Spirits, LLC  from Templeton, Iowa has been accused of consumer fraud, false and/or deceptive advertising and unjust enrichment in a putative class action lawsuit filed in Cook County Circuit Court in Chicago, Illinois.

The Complaint, filed on September 9, 2014, highlights Templeton Rye’s marketing which, among other things, touts that its namesake rye whiskey is  “Made in Iowa” using small-scale production methods and produced pursuant to “a prohibition-era whiskey recipe that was the favorite drink of Chicago mobster Al Capone.”

Plaintiff alleges that, contrary to these representations, Defendant’s rye whiskey is actually mass produced in Indiana where it is “distilled and aged at the Indiana factory of MGP Ingredients, Inc.” and “the only activity that occurs in Iowa is the emptying of the barrels and the filling of the bottles….”

Plaintiff further contends that Templeton Rye has admitted that the rye whiskey it obtains from MGP is a “stock” recipe from MGP and “not one tied to Templeton’s Prohibition era” and that “reproducing the [prohibition-era] recipe is impossible due to federal rules regulating the proof and production of rye whiskey.”

Based on the foregoing, Plaintiff filed claims under Iowa and Illinois consumer fraud and deceptive business practices statutes and common law claims for “consumer fraud”, “fraud by omission” and “restitution / unjust enrichment.”  All of these claims contend that consumers have been damaged because they reasonably believed the “premium” price they allegedly paid for the product was based on it being a small-batch, “Iowa whiskey, made in Iowa, distilled just like the prohibition-era  ‘good stuff’, and [made] with Iowa ingredients (e.g , Iowa water).”

As is common for these cases, it may ultimately prove difficult for plaintiffs to show that the alleged deception actually caused them any damage, i.e., payment of a premium price because of the alleged misstatements.  After all, they paid for a good rye whiskey and received a good rye whiskey and the associated marketing may simply be “typical advertising fluff” not be tied to any economic harm.

September 16th Webcast: Food and Beverage Marketing – Significant Legal Issues in 2014 and Beyond

I’ll be participating in a webcast on Tuesday, September 16 from 10 am to 12 pm EST.  The webcast is sponsored by the Knowledge Group and will focus on significant legal issues in 2014 relating to food and beverage marketing. There’ll be three speakers, with the others being Catherine Bate of Miller Thomson and James Alterbaum of Moses & Singer, LLP.

Additional details and registration information can be found here.  If you’re interested in attending, please feel free to contact me with respect to a complimentary pass.

Popcorn Companies in Battle Over “Chicago Mix” Trademark

Candyland, Inc., which operates stores in Minneapolis – St. Paul, has filed trademark infringement suits against three sellers and/or distributors of popcorn that allegedly use the term “Chicago Mix,” including Chicago-area favorite Garrett Popcorn.   In 1992, Candyland obtained a federal trademark registration for CHICAGO MIX in connection with “flavored popped popcorn.”  For Candyland, the “Chicago Mix” refers to the ” combination of traditional seasoned popcorn mixed with caramel and cheddar flavored popcorn.”

On August 7 and 8, 2014, Candyland filed three separate suits in the Northern District of Illinois against CandyCrisp LLC (which does business as Garrett Popcorn Shops), Snyder’s-Lance, Inc. (which distributes a line of popcorn under the O-KE-DOKE mark), and Cornfields (which distributes a line of popcorn under the G.H. CREDTORS mark).  All three defendants are accused of distributing and/or selling popcorn using the term “Chicago Mix” and thus infringing Candyland’s trademark rights.

With respect to Garrett, the Chicago Tribune reports that “[t]his isn’t the first time Candyland has tussled with … Garrett Popcorn Shops.”

In 2008, while in Chicago for a trade show, [Candyland co-owner Brenda Lamb] noticed that Garrett was using the name and promptly sent the company a friendly letter asking them to remove it.  It complied, according to Lamb, but a while later, the Lambs noticed that the Chicago Mix name had returned to use.

“We’ve been back and forth with Garrett’s for years,” Lamb said.  “We’re trying to be friendly colleagues of the business, and I think we were successful at being that way.  It wasn’t that we were spitting venom at each other.”

The Tribune further reports that Candyland and Garrett are engaged in settlement discussions and that Garrett is already transitioning from “Chicago Mix” to “Garrett Mix”, a change that Garrett states was initiated prior to the lawsuit.