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Thursday, August 26, 2010

Crunch Berries Lawsuit 'Nonsense,' Judge Rules

Posted By on Thu, Aug 26, 2010 at 2:30 PM

click to enlarge The trial of the century has grown soggy ... in milk
  • The trial of the century has grown soggy ... in milk
The man who claims he was misled for years that his Froot Loops and Cap'n Crunch's Crunch Berries allegedly contained froot fruit and berries has given up the cause for confused junk cereal eaters. East Bay  cereal litigant Roy Werbel's attorneys say he will no longer pursue his two suits after a federal judge dismissed his Crunch Berries suit as "nonsense."

"It's not that I agree with it, but I respect her decision," said San Diego-based attorney Harold Hewell of Oakland Judge Saundra Brown Armstrong's harshly worded ruling. "We felt she analyzed it and resolved any issues we had about the viability of the case."

Well, that's one way of putting it.

In granting Crunch Berries parent company PepsiCo's request to dismiss

the suit last month, Armstrong doused Werbel's

claim that the public would be deceived into believing Crunch Berries

actually contain fruit because of the reference to "berries" and

because they are "shaped to resemble berries."

"Nonsense," Armstrong writes, firing up her fighting words. "It is

obvious from the product packaging that no reasonable consumer would

believe that Cap'n Crunch derives any nutritional value from berries. As

an initial matter, the term 'Berries' is not used alone, but always is

preceded by the word 'Crunch,' to form the term, 'Crunch Berries.' The

image of the Crunch Berries, which is 'ENLARGED TO SHOW TEXTURE,' shows

four cereal balls with a rough, textured surface in hues of deep purple,

teal, chartreuse green and bright red. These cereal balls do not even

remotely resemble any naturally occurring fruit of any kind."

click to enlarge Thus endeth the froot lawsoot
  • Thus endeth the froot lawsoot
Snap, Judge Armstrong. Crackle and pop, Werbel.

Armstrong also shot down Werber's attempt to claim as relevant a comment

made by a trademark examiner in 1967 that "The word BERRIES is

considered either merely descriptive or deceptively misdescriptive of

goods here and should be disclaimed from the mark." The judge responded:

"...it is apparent that the examiner's comment was not deemed compelling

given that Quaker Oats' trademark application for Cap'n Crunch was

approved in 1968, and has been renewed numerous times since then."

Werbel then voluntarily dismissed his suit against Froot Loops as well.

No word on whether he now follows his common sense -- or just his

nose. 

H/T   |   On Point

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Lauren Smiley

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