Wednesday, June 03, 2009

When is Froot not Fruit?

Videtto v. Kellogg USA, 2009 WL 1439086 (E.D. Cal.)
Sugawara v. Pepsico, Inc., 2009 WL 1439115 (E.D. Cal.)

Because the language in both opinions is largely the same, I will discuss them together.

Plaintiff Videtto filed a putative class action for California state false advertising violations as well as intentional misrepresentation and breach of implied warranty based on Kellogg’s use of the name “Froot Loops,” fruit-shaped cereal pieces, and pictures of fruit on a product with no actual fruit in it. The “fruit-like flavor” comes from tiny amounts of “natural flavors” with no nutritional value.

Plaintiff Sugiwara filed a putative class action alleging the same claims based on her consumption of “Cap’n Crunch with Crunchberries.” Crunchberries, as portrayed on the box, are shaped like berries, though inspection would reveal that they are not in fact berries. Additional marketing contends that “Crunch Berries is a combination of Crunch biscuits and colorful red, purple, teal and green berries.” However, the only fruit content is “a touch” of strawberry concentrate.

The court granted both motions to dismiss, despite the caution in the 9th Circuit’s Gerber Fruit Juice Snacks case that such dismissals should be rare in deceptive advertising cases.

As for Froot Loops, unlike in that case, the package does not prominently feature pictures of fruit and phrases suggesting fruit content and nutritional value. Instead, it features the name Froot Loops, a picture of Toucan Sam, a picture of a bowl of Froot Loops, a small banner stating “natural fruit flavors” that includes “small vignettes of fruit next to it,” and the phrase “sweetened multi-grain cereal.” (Query: vignettes? Perhaps as in “I have eaten/the plums/that were on/the cereal box/and which/you were probably/saving/for recycling./Forgive me/they looked delicious/so sweet/and so flat.”) The cereal doesn’t resemble any known fruit, and “Froot” is part of a trademarked name. “[T]he fanciful use of a nonsensical word cannot reasonably be interpreted to imply that the Product contains or is made from actual fruit.” With the absence of nutrition claims, it’s “entirely unlikely” that members of the public would be deceived.

Likewise with Crunchberries. The packaging uses the word “berries” but only in conjunction with the descriptive term “crunch,” which doesn’t represent any actual fruit. The “Crunchberries” shown on the package are round, crunchy, bright cereal balls, and the packaging clearly states that it’s “sweetened corn & oat cereal” and that the image is “enlarged to show texture.” Thus, no reasonable consumer would be deceived. Nor does the packaging make nutrition claims or show images of actual fruit.

The court did not allow plaintiffs to file amended complaints. “The survival of the instant claim would require this Court to ignore all concepts of personal responsibility and common sense.”

Commentary from trademark perspective: the court takes the position that “Froot” will be understood to be something other than “Fruit.” The PTO, by contrast, takes the position that phonetic equivalents are to be treated like proper spellings in assessing whether a term is descriptive. See TMEP 1209.03(j). Thus, Froot Loops would not be classified as a “fanciful” term, nor “froot” as a “nonsensical” word. Rather, “froot” would be descriptive—or, in this case, if consumers are likely to believe that a “fruit” cereal contains fruit (and really, why wouldn’t they be, if this were a new product?), then the term is deceptively misdescriptive or even deceptive. (Note for registration geeks: If the PTO required a disclaimer of “fruit,” the disclaimer would have to use the proper spelling.) The difference between deceptively misdescriptive and deceptive turns on whether consumers are likely to base a purchasing decision on the presence of fruit—again, reasonably likely, it seems to me, and yet the court found the prospect so unreasonable that it was willing to dismiss the complaint. In part, of course, this reflects the difference between registration—in which the mark is assessed as applied to the relevant goods or services, but without reliance on other elements of the packaging, because the current packaging doesn’t constrain the rights granted by a registration—and litigation. But it also reflects the importance of secondary meaning, because FROOT LOOPS has so much cultural baggage attached to it. Use a deceptive mark long enough and maybe it’s no longer deceptive, because you’ve successfully changed the meaning of the term at issue.

So, if Froot Loops did not exist and were launched today, and registration applied for, what ought an examiner to do with the mark? (A quick TESS search revealed only one live, registered FROOT mark (FROOTS SMOOTHIES, for restaurant services etc.) other than Kellogg’s. Interestingly, Kellogg’s owns a later-issued registration for FROOT LOOPS SMOOTHIES for breakfast cereals, “fruit” disclaimed. In addition, the ITU for FROOT BEER has been published for opposition. History: FROOT LOOPS was registered in 1964 for cereal breakfast foods and in 1989 for “cereal-derived food product to be used as a breakfast food, snack food and ingredient for making food,” both with the same first use dates. I wonder what that 1989 registration was about—perhaps there’s some international issue.)


Jessica said...

Your discourse on the meaning of "froot" to consumers made me think of how the seafood industry markets imitation crab as "krab." We've had to train our kids to recognize that if it's spelled with a "K", they should stay away (less poetic than your WC Williams riff, but I'm trying).

As for the lack of other marks on the PTO register containing FROOT, a quick check of the TTAB records shows that Kellogg's has gone after pretty much every applicant for any such mark. Grinding down the opposition works sometimes, at least in the PTO (see Ocean Spray and Bose for additional examples).

James W. Pharo said...

I'm an advertising industry practitioner who has to make these kinds of calls all the time.

It's (almost) amusing to see federal judges who do this sort of thing once every 5 or 10 years try to guess how consumers will understand things in the absence of both experience and evidence.

It's that lack of judicial competence that leads industry to err on the side of caution in many cases.

jack said...

Though this argument seems to revolve around the original intentional misrepresentation of the mark, it got me thinking about the current wave of re-branding.

These phonic puns or neologisms of the American language, that the USPTO has affirmed, constitute secondary meaning. I suppose this is contributes to the evolution of a living, multicultural language, not to mention the commercial advantage of staying on the leading edge for IP prospecting.

Recently the "Sci Fi Channel",(abbreviated from Science Fiction a merely descriptive mark) has followed this time honored short-cut to the Elysian Fields and has re-branded to "SyFy".