SportsFuel, Inc., a nutrition consulting firm outside of Chicago, has filed a lawsuit against PepsiCo Inc. and its wholly-owned subsidiary The Gatorade Company over the SPORTSFUEL trademark. SportsFuel owns federally-registered trademarks for SPORTSFUEL and alleges that, “[o]ver the past two decades, SportFuel, Inc. has performed nutritional consulting for a number of elite sports teams, including the Chicago Blackhawks, the Chicago White Sox, the Chicago Bears, [and] the Chicago Bulls….”
The lawsuit was apparently triggered by Gatorade’s recent campaign to market itself as “The Sports Fuel Company,” which Plaintiff alleges is likely to confuse consumers as to sponsorship, authorization, affiliation, and/or association between the companies.
Notably, this is a case where Plaintiff will likely argue that there is the potential for “reverse confusion.” Under this type of trademark infringement, the subsequent user’s promotion of the mark overwhelms the use by the prior user such that purchasers start to associate the mark with the subsequent user. As a result, there is reverse confusion, with purchasers likely to believe that the goods or services offered by the prior user are actually those of the subsequent user.
Campbell Soup Company (“Campbell”) has moved to dismiss a putative class action lawsuit alleging that Campbell’s Chunky™ Healthy Request® Grilled Chicken & Sausage Gumbo Soup product is falsely and misleadingly advertised as “healthy” because it contains partially hydrogenated oils (PHO’s, i.e. artificial trans fats) that are harmful to human health.
In its motion, Campbell argues that the USDA’s review and pre-approval process for labels pre-empts the suit because that regulatory framework specifically looks at whether labels are false or misleading and includes “pervasive” regulations relating to “healthy” claims. Campbell contends that these regulations — as propounded pursuant to the Poultry Products Inspection Act and the Federal Meat Inspection Act — prohibit any consumer protection claims under state law.
Ultimately, the key question will be whether the Court accepts that the suit seeks to impose requirements on “approved labels” that add to, or differ from USDA’s requirements relating to “healthy” claims. In some cases, courts have rejected preemption arguments on the grounds that the lawsuit seeks to help, rather than hinder, the federal objectives. But Defendants may have an uphill claim to the extent the court agrees with Campbell that its labels fully comply with USDA regulations for “healthy” claims, which do not expressly prohibit the existence of trans fats.