Monthly Archives: December 2014

My Q&A with Food Business News on Legal Trends for 2015

It was my pleasure to participate in a Q&A with Food Business News on Legal Trends to Consider for 2015, which can be found at this link.

UPDATE: Crown Royal / Diageo Claims Victory in TM Battle Against “Crown Club” Whisky

I previously wrote about an impending trial over trademark infringement and unfair competition claims asserted by Diageo North America, Inc., which owns the Canadian whisky brand “Crown Royal,” against Mexcor, Inc. and EJMV Investments, LLC., who market allegedly confusing Canadian whisky under numerous brands that use the term “Crown,” including Texas Crown Club, Florida Crown Club and South Carolina Crown Club.  On December 16th, the jury reached a verdict and Diageo North America is claiming victory.

According to Nicole D’Amato, Diegeo North America’s Director and Senior Counsel, Intellectual Property:

We are pleased that the jury agreed with us that Mexcor has been confusing our consumers and diluting the strength of our Crown Royal brand, and that they will now have to change their name and packaging.

We are also gratified that the jury has backed up their verdict by awarding damages to Diageo.

We take the protection of our brands and intellectual property extremely seriously and will work diligently to protect them.

Maker’s Mark Targeted in Another Class Action Over “Handmade” Claim

MM

Last month I wrote about how Tito’s Vodka was the subject of two class action lawsuits alleging that its “handmade” claim was false and deceptive.  Now, Maker’s Mark is the target of a nearly identical claim filed on December 5, 2014 in the U.S. District Court for the Southern District of California.  As alleged in the lawsuit:

Defendant labels the whisky products it manufactures and sells as “Handmade.”  However, photos and video footage of Defendant’s manufacturing process show Defendant actually employs mechanized and/or automated processes to manufacture and bottle its whisky, including but not limited to, (1) the process involved in grinding / breaking up the grains; (2) the process involved in mixing the grains with other ingredients, such as yeast and water; (3) the process involved in transferring this mixture into its fermenting location; and, (4) the process involved in bottling the whisky.

Plaintiffs further contend that “’Handmade’ and ‘handcrafted’ are terms that consumers have long associated with higher quality manufacturing and high-end products.”  “As a result,” Plaintiffs, allege, Maker’s Mark “induces consumers to purchase, purchase more of, and pay more for its whisky on the basis it is of supposedly of superior quality and workmanship.”

In response, Beam Suntory, parent company of Maker’s Mark, issued a statement asserting that the “claim is without merit; we will defend this case vigorously and we are confident that we will prevail.”  

The core issue, aside from whether any legal damages result from the alleged misconduct, is whether reasonable consumers who purchased a Maker’s Mark product would understand the “handmade” claim with respect to whisky as specifically excluding the “mechanized and/or automated processes” alleged in the complaint.  In this regard, any production of whisky necessarily involves the use of tools other than hands, including machinery such as column and/or pot stills.  So what human involvement is needed to make the finished product “handmade”?   This ambiguity, also seen in “natural” claims, is precisely why this lawsuit exists.

Quoted Today by Food-Navigator on Class Action Settlement Over Truvia”Natural” Claims

It was my pleasure to be quoted today in FoodNavigator-USA’s article on the Truvia class action settlement.  See “Settlement Fund in Stevia Deceptive Marketing Lawsuit Alleging Truvia is Not ‘Natural’ Rises to $6.1m.”