Another outbreak of cereal litigation has flared up, with plaintiffs' lawyers now citing old trademark documents as evidence that the makers of Froot Loops and Cap'n Crunch's Crunch Berries falsely advertise the cereals as containing real fruit.

A Sacramento, Calif., judge seemed to have put a merciful end to the cereal suits last year by dismissing a $5 million class action that alleged the Crunch Berries name and packaging “were likely to mislead and deceive a 'reasonable consumer'” because the cereal actually “contains no actual berries of any kind.”

“This Court is not aware of, nor has Plaintiff alleged the existence of, any actual fruit referred to as a 'crunchberry,'” U.S. District Judge Morrison C. England said.

The case was filed in the name of lead plaintiff Janine Sugawara by a team of attorneys that includes Hal Hewell of San Diego and Howard Rubenstein of Aspen, Colo. They had dropped an earlier suit against Crunch Berries maker PepsiCo in 2007 when a motion to dismiss was pending.

But the same legal team has resurfaced in San Francisco federal court, filing two new proposed class actions against PepsiCo and Kellogg USA, the maker of Froot Loops, in the name of a new lead plaintiff — Roy Werbel.

While the cases are substantially similar to Sugawara's, they include new information collected from the files of the U.S. Patent and Trademark Office.

In the Froot Loops complaint, which was filed last week, Hewell, Rubenstein and another attorney — Jeffrey S. Kravitz of Sacramento — quote as follows from a PTO attorney's communication in 2003 to Kellogg regarding pending trademark issues:

The applicant must disclaim the descriptive wording “FROOT” 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. (Emphasis added.)

Werbel's Crunch Berries complaint goes all the way back to 1967 when a PTO attorney sent PepsiCo a letter stating that its trademark application could not be approved because “The word BERRIES is considered either merely descriptive or deceptively misdescriptive and should be disclaimed a part from the mark shown.”

But as PepsiCo attorney Rick L. Shackleford notes in a motion to dismiss the case, the Crunch Berries application “was approved in short order and has been renewed multiple times since without so much of a whimper of protest from any quarter that reasonable people were foolish enough to believe that Crunch Berries came from crunchberry trees.”

“The notion that any reasonable would pour [sic] over a 40 year old trademark application before heading out to buy groceries is ridiculous on its face,” he continues. “Inasmuch as the only 'improvement' in this twice-rejected legal theory is the overruled rumination of a trademark examiner made before man walked on the moon, this effort should meet with the same fate as the other cases.”

Kellogg is likely to file a similar motion in the Froot Loops case. Despite the PTO attorney's comment, it has not “disclaimed,” or given up, its trademark rights in the word “Froot.”

Sugawara's appeal of Judge England's ruling was dismissed April 19 after she missed the deadline for filing her opening brief. “The survival of the instant claim would require this Court to ignore all concepts of personal responsibility and common sense,” England said in his decision.

By Matthew Heller
4/29/10