–Dan Kelly, Attorney

I will assume that by now you have heard of the Crunch Berries lawsuit that was dismissed about a month ago in federal district court in California.  If not, you should read this post about it at the blog Lowering the Bar.  (The update is also quite humorous.)  The brief summary is that an individual filed a class action lawsuit against Pepsico, parent of Quaker Oats Company, under California’s “Unfair Competition Law,” among others, asserting, in essence, that Cap’n Crunch’s Crunch Berries fraudulently or deceptively suggests that it contains real fruit, which it does not.

On the serious side, this is only the most recent in a line of cases brought by the same group of attorneys who are apparently looking to strike it rich in tobacco-esque style litigation targeting a number of products that were the subject of an April 2007 study by the Prevention Institute titled, “Where’s the Fruit?”  (H/T On Point.)  The gist of the argument is that the products mislead customers by suggesting that the products are more healthful than they really are.

Under U.S. trademark law, a trademark can be refused registration if it deceptively misdescribes the goods for which it is registered, but CRUNCH BERRIES, FROOT LOOPS, BERRY BERRY KIX, FRUITY CHEERIOS, and JUICY FRUIT are all federally registered trademarks, and all were found by the Prevention Institute’s report to contain no fruit.  It had not really occurred to me until I considered the Crunch Berries case, but the line between suggestion and deception in a trademark is not necessarily easy to draw:  a mark that is suggestive to one consumer may be deceptive to another.  While all of the above marks seem to fall on the suggestive side of the line to me, these fruit suits show that some think otherwise.  In today’s sometimes absurd litigation environment, the line between suggestion and deception is one that marketers and brand managers cannot ignore.