Cereal Litigant Refiles Froot Loops Lawsuit
|Back for another bowl of legal goodness...|
While Werbel's case against Crunchberries continues, his Froot Loops litigation could not stay crunchy in milk. His lawyers opted to never serve Kellogg's with any legal papers, and the case was dismissed. Until Monday -- when Werbel refiled his Froot suit in San Francisco.
The prize in this legal box of cereal, according to lawyer Howard Rubenstein, is new-and-improved argumentation: "As you know, judges don't like when you refile a case without new information."
Here's what Rubinstein and co-counsel Hal Hewell hope is a smoking Froot gun: An excerpt from a 2003 communique between Kellogg's and Susan Stiglitz, a patent attorney with the U.S. Patent and Trademark Office:
The applicant must disclaim the descriptive wording "FROOT" apart from the mark as shown. ... The wording is merely descriptive because it refers immediately to a feature of the cereal goods; as these goods appear to contain fruit or a fruit flavor, this term is descriptive and must be disclaimed.
But what about the argument that no sober consumer could possibly think Froot Loops are anything but candy-colored chemicals? What about the argument a judge fired back at Rubinstein and Howell -- handling yet another Crunchberries case for a different plaintiff -- that no "reasonable consumer" would think a Crunchberry was really a fruit?
Rubinstein contends that depends on your definition of "reasonable consumer."
"Not every person knows what Froot Loops is," he says. "Young people come into the market every day buying cereal for their kids. Some of these people are Latins, or from other countries, especially on the West Coast, with its large immigrant population. You would think there's a connection to fruit."
And if you think "read the goddamn ingredients!" is a defense -- Rubinstein assures you it isn't. A class-action case against Gerber Products that Hewell argued up to the 9th Circuit Court of Appeals ruled that consumers shouldn't have to read ingredient lists to counter the effects of "misleading" labeling.
Follow your nose -- this case smells intriguing.
H/T | Courthouse News