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When 0.5% is not “The Real Thing”

On June 12 the Supreme Court held that private parties may sue competitors under the Lanham Act for false advertising in the form of misleading labeling, even though policing labeling is a regulatory function delegated exclusively to the FDA.

Coca-Cola’s Minute Maid Division sells a beverage with the words “pomegranate blueberry” displayed prominently on the label. The product contains 0.3% pomegranate juice and 0.2% blueberry juice. POM Wonderful LLC sells three pomegranate juice blends. None of them include blueberry juice, but they contain 40%, 50%, and 60% pomegranate juice. POM Wonderful decided Coca-Cola was not being truthful in its labeling, and sued under the Lanham Act, a federal law that allows one competitor to sue another if “in commercial advertising or promotion, [he or she] misrepresents the nature, characteristics, qualities, or geographic origin of his or her or another person’s goods, services, or commercial activities.” Another federal law, the Federal Food, Drug, and Cosmetic Act (FDCA) forbids the misbranding of food, including if “its labeling is false or misleading.” The FDCA pre-empts private parties and a “State or political subdivision of a State” from enforcing its terms; that job fall almost exclusively to the Food and Drug Administration (FDA).

Coca-Cola argued, and the Court of Appeals for the Ninth Circuit agreed, that the FDCA’s pre-emption language precluded POM’s private lawsuit under the Lanham Act. A unanimous panel of the Supreme Court (Justice Breyer abstaining) disagreed. Justice Kennedy wrote that the Lanham Act and the FDCA are complementary – not conflicting – federal statutes. The FDCA, by its express terms, pre-empts state law, not other federal laws. Furthermore, the two statutes serve different purposes. The Lanham Act protects commercial interests against unfair competition, while the FDCA protects public health and safety. Furthermore, they have different enforcement mechanisms, which are not necessarily in conflict. The FDCA’s enforcement is largely committed to the FDA, while the Lanham Act empowers private parties to sue competitors to protect their interests on a case-by-case basis.

The Court noted that competitors who manufacture or distribute products have detailed knowledge of how consumers rely on sales and marketing strategies, which the FDA lacks. “Their awareness of unfair competition practices may be far more immediate and accurate than that of agency rulemakers and regulators. Lanham Act suits draw upon this market expertise by empowering private parties to sue competitors to protect their interests on a case-by-case basis.”

 POM Wonderful may thus maintain its suit against Coca-Cola. If the parties do not reach settlement, it will be up to a jury to decide whether a label proclaiming “pomegranate blueberry” juice misrepresents a beverage containing less than half of one percent of either.


Master of None (Who Are You Calling a Softee?)

Trademark law, when properly applied and enforced, serves two functions of particular import.  The first is protecting consumers from being misled as to the origin of goods and services found in the marketplace.  The second is protecting product producers from having the goodwill of their brands usurped by competitors.   Although the trademark system has seen its share of abusers, particular events, at times, unfold that make us thankful for the safeguards that trademark law can provide.

"Mister Softee" is a legendary brand for anyone who, like me, grew up in New York City.  For me, the sound of the Mister Softee ice cream truck hearkens back fond memories of balmy, school-free New York summers, playing in the spray of open fire hydrants, and delicious frozen treats; treats like Bomb-Pops, Italian Ices, and of course, vanilla soft-serve cones with rainbow sprinkles.  Imagine my dismay when I discovered today that someone was knocking-off that beloved brand with their own "Master Softee" ice cream trucks.

Thankfully, U.S. District Judge Laura Taylor Swain has granted a preliminary injunction to put a stop to what she judged was a clear showing of harm to Mister Softee's business resulting from "Master Softee" trademark infringement.

You can read the Memorandum Opinion issued by the U.S. District Court of the Southern District of New York here (photos in the Appendix):

You can also read the story (and compare marks) here:

and read more here:


What is a Photocopier?

A recent New York Times opinionated documentary (i.e., "Op-Doc") has taken the transcript of a deposition "Verbatim" (as the short film is appropriately titled), and dramatizes a particularly ridiculous argument between an attorney and witness.  "Verbatim" won the audience award for best short film at the Dallas Film Festival and hilariously underscores how getting answers to even innocuous questions during litigation can become a seemingly sisyphean ordeal for everyone involved.

At just barely over 7 minutes, I highly recommend giving it a look:

Research Triangle Paralegal Association Names Jean Benvenuto President

Benvenuto is the lead patent paralegal at Coats & Bennett, PLLC

CARY, NC (May 6, 2014) – Coats & Bennett, PLLC is pleased to announce that Jean Benvenuto was voted as the 2014 President for the Research Triangle Paralegal Association (RTPA), which is a professional organization dedicated to encouraging the professional and personal growth of its members.  Benvenuto, the lead patent paralegal at Coats & Bennett, has over 30 years of legal experience.

A North Carolina Certified Paralegal and member of the North Carolina Bar Association- IP Paralegal Division, Benvenuto administers clients’ U.S. and foreign patent filings at Coats & Bennett.  Benvenuto has significant responsibility helping oversee the firm’s prosecution of patent rights and liaisons with dozens of associated patent firms worldwide.   Her passion for her work, responsiveness and dedication to detail helps ensure that the firm’s international patent team runs smoothly, which is integral to the firms’ success as a leader in the intellectual property law field.

“Jean is a natural leader and is an excellent choice as the RTPA President,” said David Bennett, Managing Partner of Coats & Bennett. “Her overall knowledge of patent prosecution combined with her experience in international patent filings has been critical to our firm’s past and future successes in protecting our clients’ patent rights throughout the world.”

“It is an honor to be voted in by my peers as President of the association for 2014,” said Benvenuto. “I look forward to managing the association and providing the organization with strong leadership throughout the year.”

Coats & Bennett values the importance of paralegals in the legal field and is a proponent of supporting education and growth. Paralegals contribute a great deal to the reputation of Coats & Bennett as a provider of professional and prompt service to our many clients.  Coats & Bennett is a Patron member of RTPA and hosted its February 2014 meeting at its Cary office and supports paralegals involvement in professional associations and organizations.

RTPA was established by and for paralegals residing in Durham, Orange or Wake County. RTPA hosts bi-monthly educational lunch meetings covering topics such as career counseling, paralegal certification legislation, paralegals as mentors, and financial counseling. 

To learn more about the RTPA visit

The evolution of US patent examination from 1790 to 2014

Patent examiners often bear the brunt of criticism for perceived shortfalls of the US patent system (whether one views the USPTO as being too restrictive or too permissive). The job of a being a patent examiner tasked with determining whether a given invention is actually patentable is no doubt a challenging one.

This recent article from Slate provides a fascinating history of the USPTO (and its critics) from 1790 to present, and describes how the role of patent examiners has evolved throughout that time period.

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