Helados Mexico and La Michoacana don't suggest Mexican origin to reasonable consumers

Romero v. Tropicale Foods, LLC, No. EDCV 21-1165 JGB (SHKx), 2021 WL 6751908 (C.D. Cal. Dec. 22, 2021)

Plaintiffs brought the usual California claims (and NY claims) against Helados Mexico and La Michoacana paletas, or ice cream products, alleging that they deceived consumers into thinking that they were made in Mexico.

The court held that the complaint didn’t plausibly allege that a reasonable consumer would be misled, particularly by the use of Spanish terms and phrases. Plaintiffs focused on the following arguments: “Helados Mexico” translates into “Mexican Ice Cream,” “Mexico” is featured prominently on the label, along with Spanish phrases describing the type of ice cream, and a “traditional Mexican ice cream cart.” For La Michoacana packaging, plaintiffs focused on: (1) the Spanish name of the product, which translates into “the woman from Michoacan,” a state in Mexico “known for” its paletas; (2) a girl wearing a “traditional garment,” (3) the use of “authentic Mexican flavors” (plaintiffs’ characterization, not a phrase used on the products; the court commented that such a phrase would have tilted in their favor) and (4) “other Spanish words.” The court considered all these “holistically” but also broke them into parts.

Helados Mexico Premium Fruit Bar/Paleta de Fruta "Con Chamoy"

La Michoacana Variedad/Variety pack

Names: “Helados Mexico” does not translate into “Mexican Ice Creams” because “Helados” is plural while Mexico is singular. “Instead, it translates inelegantly to ‘ice creams Mexico.’” “La Michoacana” does translate to “the woman from Michoacán,” but doesn’t include “helado” or “helados” or “ice cream” that would imply that the ice creams were created in Michoacán. “Plaintiff does not cite to any authority which holds, or even suggests, that products named in foreign languages are, by default, deceptive to a reasonable consumer.” A name including Mexico or Michoacán is insufficient to allege that reasonable consumers could be deceived; something more is required, like a specific origin year paired with a place name to suggest that the product is still being made there (citing a case about chocolates holding that “Belgium 1926” represented “both the provenance of the company...and a representation that its chocolates continue to be manufactured there”).  

Were the product descriptions on the packaging the necessary “something more”? No. It wasn’t sufficient that they were in Spanish; on the La Michoacána package, the court described them as “Spanish translations of English product descriptions,” e.g., “Fresas con Crema”/“Strawberries & Cream” and “Paletas”/“Bars.” On the Helados Mexico package, “Con Crema” and “Strawberry/Fresa” were in Spanish only, while other phrases were in both languages. These were ordinary translations, not “Spanish idioms or some other type of phrase that may mislead a consumer about the products origin, such as ‘A Taste of Mexico’ or ‘Authentic Mexican Ice Cream.’” Even if some “Spanish phrases” are sufficient to make it plausible that ackaging misleads reasonable consumers about its origin, “it is far less likely to be the case when (1) the phrases are translations and (2) affirmative representations are only in English.”

Nor were the products’ images “something more.” The plaintiffs focused on the Helados Mexico cartoon cart, allegedly a “traditional Mexican ice cream cart” and the La Michoacána cartoon woman, who wears a “traditional Mexican garment.” Plaintiffs failed to explain the traditional background of the garment, or why a cartoon of an “ice cream cart” was “Mexican,” let alone “traditional” enough to evoke Mexico “(other than viewing through a particularly Anglo-American lens about what makes a community identifiable via caricatures).” Regardless, “[n]either image evokes ‘Mexico’ in such a way that would deceive a reasonable consumer into the belief that the products are manufactured there.” A cartoon “Mexican ice cream cart” wasn’t the same sort of representation of “tradition” or “authenticity” as one such as “Belgium 1926,” “which implies a longstanding history of production and manufacture in a particular origin.” It simply can’t be the case that “any symbol that has some widely accepted connection with Mexico,” like a cartoon sombrero, could be misleading. Prior cases focused on very specific symbols of authenticity such as a Mexican flag and the word “authentic” superimposed on that flag, or a map of a place with an “open invitation” to visit on the package, or even a picture of fruit that suggested the presence of fruit in the snacks.