Nathan Moceri

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Battle Over Labeling Genetically Modified Food Continues

Our colleague Claire Mitchell recently published an article in Law360 that discusses a recent class action lawsuit filed against Pepperidge Farm, Inc. in Colorado on November 6, 2012. The complaint alleges that Pepperidge Farm misrepresented its Cheddar Goldfish crackers as “natural” when, in fact, they contain Genetically Modified Organisms (GMOs). The lawsuit is one of many class action suits that have been brought against food and beverage companies over the past few years claiming that the marketing of certain products as “natural” is false and misleading.

Claire explains possible ways for companies to avoid this type of litigation as well as the importance of being prepared for a lawsuit. She writes:

“Natural” labeling and advertising litigation has been both costly to food and beverage companies and damaging to their reputation. In order to avoid litigation, companies should take preventative measures such as reviewing their products’ ingredients for the presence of synthetic preservatives or other artificial or “unnatural” ingredients; examining product labeling, advertising, marketing and other promotional materials to ensure that all claims being made are accurate and compliant; and perhaps even considering whether the use of the term “natural” is worth the potential exposure to litigation.

It is also important for food and beverage companies to be prepared to defend against such lawsuits. Several possible defenses — such as removal to federal court under the Class Action Fairness Act (CAFA), forceful challenges to class certification and challenges to the pleadings under Rule 12(b)(6) — can be effective in defeating this type of class action lawsuit early in the process.

You can read the full text of her article here.

Hershey and Mars Battle Over the Color Orange

The Hershey Company and Mars Inc. are fierce competitors.  They have clashed with each other in the past over Hershey’s asserted rights in the color orange, when Hershey sued Mars for using orange on the individual wrappers for its Dove Promises peanut butter chocolate candies. Matters recently came to a head again, when Hershey sued Mars for trademark infringement, dilution, and unfair competition in the US District Court for the Eastern District of Virginia. This time, the lawsuit claims that Mars’s Dove Promises outer packaging infringes Hershey’s trademark in the Reese’s Peanut Butter Cups orange packaging design.  Hershey claims that Mars is trading on Hershey’s goodwill, and that the Dove packaging will confuse consumers.

Days before Hershey’s lawsuit, Mars filed a declaratory judgment action in the US District Court for the Middle District of Pennsylvania, claiming that Hershey does not own exclusive rights in the color orange for peanut butter confections. Mars argues that orange is used industry-wide to designate peanut butter flavors.

What’s your opinion?

These lawsuits bring up a couple of important points.  First, color alone can be a trademark. Therefore, designers and marketers should be careful not to tread on any well-known colors used by competitors. Second, companies should consider developing trademark or trade dress rights in colors that are important components of the brand. A manufacturer can add a powerful element to its overall brand identity and trademark rights by selecting a unique shade of color and sticking with it over time.

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