Spring 2018 Digital Fruit Short Takes
The famous talk show host Montel Williams filed a lawsuit against medical marijuana retailers under the Lanham Act and Florida’s right to privacy and publicity statute for using his likeness to propagate fake advertisements and news stories. Williams is an advocate for the legalization of medicinal cannabis and has been known for using cannabis to help manage multiple sclerosis symptoms. In April 2017, Williams was interviewed by Forbes about his medical-grade cannabidiol (“CBD”) business. After the article was published, Williams alleges that multiple retailers have been using his likeness to engage in false advertising and fake endorsements. Williams specifically identified the managers of three named retailers in his complaint in an attempt to hold them personally liable for the infringement.
British Celebrity chef and restaurateur Jamie Oliver was recently accused of infringing a U.S. gluten-free certification mark. Oliver has thousands of gluten-free recipes on his website and, like many other recipe sites and food blogs, tags or labels dishes that omit gluten-containing ingredients by marking them with a tiny symbol—the letters “GF” in a small circle with the phrase “Certified Gluten Free.” The Gluten Intolerance Group (“GIG”), an independent organization that certifies food producers as gluten free, owns an allegedly identical or substantially similar family of U.S. and international trademarks that it uses to certify products as gluten free. GIG filed claims against Oliver and his company for trademark infringement, counterfeiting, and unfair competition. The two parties later settled, agreeing to undisclosed terms, and dismissing the case. Often businesses are unaware that many commonly seen certification marks on the market are federally registered trademarks. These trademark owners will often vigorously defend their marks to uphold the integrity of the mark and ensure that customers can trust that the product has gone through a formal certification process.
After Chinese e-commerce Alibaba tipped off Chinese authorities, police confiscated 14,000 bottles of fake Australian wine in November 2017. The copycat wine was being sold at less than one-third of the market price of the authentic wine in China. As China has become the world’s top consumer of red wine, the counterfeit wine amounts to a particularly egregious problem. Other premium wines are also smuggled into China through various illegal channels. Aside from registering trademarks in China, some Treasury Wine Estates, such as Penfolds Wine Estate, began etching the glass on the bottles of its most expensive wines, in an effort to deter fraud, which has become an increasing focus of its business as Chinese sales continue to drive profits.
Legal issues bubbled up since 2012 when Aldi Süd, a German retailer, offered up “Champagne Sorbet.” The association of champagne producers (CIVC), brought proceedings against Aldi seeking an injunction to prevent it from selling sorbet marketed and sold under the name “Champagner Sorbet.” The CIVC argued that the name infringes the protected designation of origin (PDO) “Champagne.” The Court of Justice of European Union (ECJ) held in December 2017’s decision that the use of the name “Champagner Sorbet” referring to champagne must attribute that product with the qualities conveyed by the PDO Champagne. However, the Court held that a sorbet may be sold under the name if the product has, as an essential characteristic, a taste that is primarily attributable to champagne. Among other things, EJC added, the amount of Champagne in the product is not the lone deciding factor.
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