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Wednesday, April 21, 2010

Cereal Litigant Refiles Froot Loops Lawsuit

Posted By on Wed, Apr 21, 2010 at 6:30 AM

click to enlarge Back for another bowl of legal goodness...
  • Back for another bowl of legal goodness...
SF Weekly last year reported on disgruntled cereal-buyer Roy Werbel, who filed suits in San Francisco Federal Court against the makers of Froot Loops and Crunchberries because -- wait for it -- he thought there was fruit in both of them.

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.

click to enlarge Toucan_sam_shirt.jpg
These two attorneys are also representing Werbel in his Crunchberies case against PepsiCo; similarly, they hope an original trademark application for the cereal in which the examiner felt the name could lead to confusion works wonders there, too.

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

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About The Author

Joe Eskenazi

Joe Eskenazi

Joe Eskenazi was born in San Francisco, raised in the Bay Area, and attended U.C. Berkeley. He never left. "Your humble narrator" is a staff writer and columnist for SF Weekly, which he has written for since 2007. He resides in the Excelsior with his wife, 4.3 miles from his birthplace and 5,474 from hers... more


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