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Merrick Sues Blue Buffalo
- 8-26-2010
- Categorized in: Pet Food News
Filed in the Northern District of Texas, Merrick Pet Care, Inc. versus Blue Buffalo Company, Ltd 5/17/2010; Complaint for Trademark infringement and unfair competition. Here's the details, you decide if this is a fair lawsuit.
It seems that Merrick Pet Care believes that Blue Buffalo Company has infringed on trademark protected pet food names. "Thanksgiving Day Dinner and Grammy's Pot Pie are federally registered marks (Registration Nos. 3,350,890 and 3,287,558 respectively)." "Blue Buffalo has recently begun promoting a product line with four (4) products called "Family Favorite Recipes." Three of the four products in the Family Favorite Recipes line bear similar names to the Merrick names listed above. The names used by Blue Buffalo are Thanksgiving Feast, Chicken Pot Pie and Turducken."
Merrick Grammy's Pot Pie
Merrick Thanksgiving Day Dinner
Blue Buffalo Chicken Pot Pie
Blue Buffalo Thanksgiving Feast
The complaint filed by Merrick Pet Care states "The Thanksgiving Day Feast and Chicken Pot Pie names are a colorable imitation of Merrick's Thanksgiving Day Dinner and Grammy's Pot Pie registered marks. Blue Buffalo has applied these colorable imitations to its labels, product packaging and advertisements in connection with the sale, offering for sale, distribution, or advertising of pet food in a manner which is likely to cause confusion, or to cause mistake or to deceive."
Merrick Pet Care is asking for the following "Relief and Damages":
"As a direct and proximate result of Blue Buffalo's conduct, Merrick is entitled to the following:
a. A preliminary and permanent injunction enjoining Blue Buffalo from infringing Merrick's registered trademarks;
b. Statutory damages, including damages for willful infringement or, in the alternative, actual damages, plus the amount of Blue Buffalo's profits attributable to the infringement;
c. Attorneys' fees and costs of court."
So...if you were judge and jury, what do you think? No belief of quality of grade of ingredients of either of these foods should influence you; just given the above facts, did - in your opinion - did Blue Buffalo infringe on Merrick's trademarked pet food names?
If you'd like to read the full complaint, go to: http://dockets.justia.com/docket/texas/txndce/2:2010cv00115/196364/
You'll need to register for a "Pacer" subscription; the fee to research and view documents is $0.08 per page. It's very easy.
Wishing you and your pet(s) the best, Susan Thixton
Truth about Pet Food
Petsumer Report
www.TruthaboutPetFood.com
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So does Merrick think they have some sort of ownership to chicken meals and Thanksgiving type meals?
Unless the Blue Buffalo make pets terribly sick, they have nothing to worry about as far as thinking they stole from them.
All my cats have gotten sick on Merrick foods.
I shouldn't be surprised that "names" are what they are both concerned about instead of the ingrediants. It's a stretch to even call them pet food in my opinion. It's been cheaper just buying my own chicken from the grocery store and feeding it myself to my two dogs. Smoke and mirros, and where is the money invested into quality products and process??? Spent on a stupid lawsuit on names. The priority is messed up here, HUGE!
Come on Blue, get an original idea! And what about Turducken mentioned above - Merrick has had that canned food for years!
Laurie,
While Merrick may have been selling a food called Turducken for years, they really cannot hold a patent on that name since it has been used by people in the south for decades upon decades & there are even Turduckens sold around the holidays here in the south. Also, how can someone hold a patent on the names chicken pot pie & Thanksgiving feast? Are Swanson & Banquet foods going to have to rename their chicken pot pies now? I also don't see how anyone could mistake Blue Buffalo's cans for thos of Merrick, as they look nothing a like. Personally, I think it is just a way for a company to try to 'burn' the competition.
The issue here is Trademark infringement and unfair competition. Trademark infringement for those of use who might not know what trademark infringement entails here is a little info for you. L1 lesson: Trademark infringement is a violation of the exclusive rights attaching to a trademark without the authorization of the trademark owner or any licensees (provided that such authorization was within the scope of the license). Infringement may occur when one party, the "infringer Blue Buffalo (BB)", uses a trademark which is identical or confusingly similar to a trademark owned by another party Merrick Pet Care (MPC), in relation to products or services which are identical or similar to the products or services which the registration covers. An owner of a trademark may commence legal proceedings against a party, which infringes its registration.
In many countries, but not in the United States, which recognizes common law trademark rights, 1a trademark that is not registered cannot be "infringed" as such, and the trademark owner cannot bring infringement proceedings. Instead, the owner may be able to commence proceedings under the common law for passing off or misrepresentation, or under legislation, which prohibits 2 unfair business practices. In some jurisdictions, infringement of trade dress may also be actionable.
Unfair competition in a general sense means that the competitors compete on unequal terms, because favorable or disadvantageous conditions are applied to some competitors but not to others; or that the actions of some competitors actively 3 harm the position of others with respect to their ability to compete on equal and fair terms. It contrasts with fair competition, in which the same rules and conditions are applied to all participants, and the competitive action of some does not harm the ability of others to compete. 4 Often, unfair competition means that the gains of some participants are conditional on the losses of others, where the gains are made in ways, which are illegitimate or unjust.
To an important extent, the law defines the principles of fair competition in the business world, and therefore unfair competition may well be unlawful or criminal. However, because the forms of competition can change continually and new forms of competition may arise, competition may be unfair, but not an illegal act at least not until a legal rule is explicitly made to prohibit it. The exact meaning of unfair advantage or harm caused in business competition may be vague or in dispute, in particular if different competitors promote different interpretations, which suit their own interests. It may be difficult to define what it would mean to compete on equal terms, and the operative terms of competition that exist in reality may be challenged only when a participant is seriously disadvantaged by them. Often "equal terms" is defined as an "equal opportunity" or "equal chance" to compete.
Sometimes unfair competition is also interpreted to mean that the existence of competition as such is unfair or unjust. The argument is then that there should not be any competition. However, in the world of big business and free enterprise there is no room for fair competition.
So the issue is
1. Did MPC trademark the name(s) in question before BB use the same or similar name and can MPC prove it with documentation that MPC has a patent?
2,3,4. Because BB use the same name as MPC did the behavior constitute unfair business practices and was MPC harmed by the BB behavior when using the same/similar name and the likelihood of using the similar caused confusion for the purchaser./pet parent and MPC requalar customers where so confused they purchased BB and there was a substantial loss of sells for MPC because of BB alleged Trademark infringement and unfair competition.
Therefore, I am looking forward to the out come of this case which has nothing to do with the care and treatment of our beloved pets.
First the names are not identical. Merrick is sueing them to put them out of business. Everyone should call and write and say they are going to boycott and buy from other companies including Blue Buffalo Company. There is only so many ways you can make dog food how can you own the rights of a recipe it would have to be exact in every detail and measurement. Who owns Merrick? I say BOYCOTT!!
Merrick is family owned and operated,and makes all their own food in their privately owned manufacturing facility.Blue Buffalo is outsourced-made in a huge dog food factory right alongside(on the same equipment) low quality grocery store brands.BB manufacturer was caught adding different ingredients then what BB had specified.Blue was recalled because of this.Blue was also recalled in 2007 when the melamine tainted food killed many dogs.Merrick dog food has never been recalled.
That is wrong because they have had some recalls. You need to research your information.
Land o' Goshen!
What does that mean????
I think that the Blue Buffalo names are clearly an imitation - whether it meets the legal definition of copyright infringement is up to a jury. What is sad about this to me is not the legal aspect but the fact that these Merrick names induce people to buy the food (hence the imitation) - too many folks are lured by the homey names and aren't checking Merrick's real quality controls (which are seriously lacking).
Lori,where did you get your info about Merrick's quality controls?? They are seriously lacking??? How do you know this?? Please leave a link or some kind of proof to what you are saying....Merrick has recently reformulated their offerings to include more meat.Please stop trying to trash an excellent dog food just because you use Blue Buffalo.Have you ever tried Merrick?? My dogs do excellent on it.Also it is low gylcemic for dogs with diabetes,Merrick has won awards.Where are Blue Buffalo's awards?? I don't think that they give awards for having melamine tainted dog food....Merrick has every right to sue if BB has used copyrighted names.
Michelle, I am equally interested in proof you have of lack of quality control, low cost ingredients, etc. with Blue Buffalo. The information I have found regarding BB's recall is that it was due to product tampering by a business partner that was neither known or approved by BB and they recalled as a precaution even though their products tested negative for melamine and stopped doing business with that partner.
http://hubpages.com/hub/Blue_Buffalo_Dog_Food_Recall_Information
Didn't Merrick have a recall recently for possible salmonella contamination? Never used Merrick and not knocking them, just saying seems they have had issues as well. The Petsumer Online report from this site rates BB high...on average higher than Merrick....and I have seen overall good reviews on other sites rating dog food, so if you have evidence to the contrary, please share. My pets all seem to be thriving on BB, but would like to know if there is cause for concern so I have all the facts.
Ramey,you are correct,Blue Buffalo was RECALLED due to tampering by their manufacturer,but I was refering to the Melamine recall of 2007-BB KILLED people's beloved pets,why does BB do business with such shady manufacturers??? Why does BB have soooo many recalls??? I WOULLD NEVER trust my pet's health to BB!!! Merrick has NEVER had a PET FOOD RECALL!!! The ONLY thing that Merrick has EVER recalled are 2 of their TREATS for POSSIBLE salmonella-NO REPORTED ILLNESSES. Merrick has won awards-where are BB's awards??? OH YEAH THEY DON'T GIVE AWARDS FOR MURDERING PEOPLE'S PETS!!!!???? Here is a link to the melamine recall of 2007 http://www.acessdata.fda.gov/scripts/newpetfoodrec...
Wow Michelle chill out, do you work for Merrick or something? No need for the all caps we can read lowercase letters just fine. The 2007 melamine recall was primarily linked to foods produced by a company called Menu Foods, although several other companies including Blue Buffalo and Royal Canin recalled some of their products as well. From what I have read the Blue Buffalo recalls were due to tamerping by American Nutrition Inc. who added rice gluten without permission of BB. They recalled their lines made by ANI because of the tampering and since the rice gluten could potentially be contaminated with melamine although though no Blue Buffalo products tested postive for melamine and no illnesses were reported due to use of BB food (You ask about "soooo many recalls" i.e. two recalls both in 2007 both related to this tampering/melamine incident). None of their foods tested positive but they chose to recall them as a precaution due to the tampering. They aren't out to kill your precious dog or cat but if using Merrick makes you feel all warm and fuzzy inside then by all means use it. Blue Buffalo has consistenly been well reviewed as a quality dog food brand, you bashing it is pointless and off topic. P.S. your link doesn't work because access is spelled with two c's.
let them fight, who cares..!
I don't buy their products and in my opinion every single pet product which is not organic or holistic/from wild grown sources, is not suitable for pets. I buy for ourselves mostly organic, so for our pets we also use only organic.
Non organic pet food means, that every single ingredient has pesticides, hormones/steroids/now vaccines for chicken. Would YOU eat a food which is all loaded with this crap? I'm sure not.
So for me, all these companies that produce non-organic food - they care very little about your pet. no..no..they don't care at all !
The only thing they care is MONEY!
this is a simple law of capitalistic society.
For me a company that produces 110% organic food for pets means that this company equally cares for the well being of pets and for the well being of themselves. If we all start buying ONLY organic food and demand from these money-hungry pet food companies to make top quality organic food, then the whole industry will go thru a revolution.
I assume you make all the food for your dogs. Do you know of a food on the market that is 110% organic? Or even 100% organic? I know many who use some organic ingredients, but have not been able to find one that in certfied 100% organic. I'm interested if there is one out there. And available in my area.
You asked about 100% organic dog/cat food. In addition to many organic kibble/can products available, there is a fabulous raw pet food - USDA Certified Organic - available from PawNaturaw.com where most of the products are 100% organic and 100% grain-free: Organic, Raw, Frozen or Dehydrated Dog Food and Cat Food - USDA Certified Organic & All Natural Products Dogs and Cats. Meat offerings include beef, chicken, and turkey, as well as unique protein sources such as bison, elk and rabbit.
I try to feed what's best for my fur kids, I do the best I can. It's all a learning curve, each and every day. Thank goodness for Susan putting this site out there for all to see and learn from. I would be interested in hearing what you are feeding your dogs, off list if it's not allowed on, if you don't mind Zal.
As for the BB and Merrick drama. There is just so many ways to say, chicken pot pie...go to your local food store and look at the shelf and compare. They all resemble themselves. Come on people. Why aren't you concerned with working on a healthier dog/cat food instead of what kind of side looks nice with the turkey for the photo shoot?
I agree Zal organic is the only way...Lost 3 dogs 2 cats from cancer and melamine it was a wake up call as well as heart wrenching lost. Nothing but the best for my new kids since 2008. They are my life.
Has no one ever heard of a chicken pot pie, or turducken? These names are common! If I make a stew, and call it "stew" are all the dog food manufacturers going to try to sue me? I respect both Merrick and Blue Buffalo quite a bit, but Merrick is being a bit childish. Why not just throw a temper tantrum and scream "mine" over a communal toy?!
You have the right set of mind about the whole controversy. High 5 to you.
All this stuff about which foods have poisons - can someone please suggest a petfood brand that is healthy? & I live on $200/month, so wanna make it affordable, too?
Ignoring the two companies themselves, this lawsuit seems rather pointless. As the first comment says, does Merrick own the rights to Thanksgiving and pot pies? They're both descriptive terms for what's in each food without having a long product name and easy ways for pet owners to quickly evaluate products. Multiple foods have a variation of Turducken. Merrick's pot pie food doesn't even mention the meat source in the name. The packaging isn't very similar; Wellness 95% cans also have a tan color scheme.
Most all BB is sold through Petsmart and Petco, both of which don't carry Merrick. Those that carry both, specialty pet stores, are much more likely to have knowledgeable customers who actually look at labels and know what they're buying (eye roll). Hell, with Merrick's dozens of different canned foods anyway, one always has to be careful when picking up their stuff!
From a purely business point of view, then Merrick is right. Blue Buffalo is trailing on their coat tails and should at least think up their own can names. It is bad business to use someone else's wording, that is why we have trademarks.
Lets consider the question Susan asked us “did Blue Buffalo infringe on Merrick's trademarked pet food names?”
If I were the judge or a jury member, I would say no to two of them, but might consider “Turducken”, or if they also used one like Wingaling, which I might consider a created concept. I would want to read trademark laws, and read recent precedents. But I do believe the other two are every day words, and phrases, which I feel you cannot hold hostage for your own use. This of course is just my opinion as the make-believe judge or jury member. I have however spent many hours in court, and sometimes-small things are made to look really big by the plaintive, which is what I think they have done here by brining in all three names. To me their only case is Turducken (which was cleverly conceived). If it comes down to just arguing the law, you might not have a jury.
I sat down to get creative here. So if you’re reading Blue and Merrick here are some ideas for you. You can both use them, and you cannot fight over them. There are enough consumers to go around for everyone. This is a public forum, so there is not doubts that neither of you created them. You cannot now sue each other over their use. Geese guys, you should both be competing to make the best product to get the sales. How about adding 50% or more meat instead of the standard 25% for dinners. Advertise that.
Thanksgiving Chicken Delight
Chicken Delight Thanksgiving Dinner
Thanksgiving Day Glazed Ham
Glazed Ham Thanksgiving Day Dinner
Succulent (meat here) Thanksgiving Feast
Juicy Pot Roast Thanksgiving Day Dinner
Juicy Chicken Pot Pie Banquet
Thick Chicken Pot Pie Banquet
Thanksgiving Day Pot Roast with trimmings
Duck &Turkey Thanksgiving Feast w/veggies
Thanksgiving Banquet
Thanksgiving Day Banquet
Creamy Chicken & Veggie Pot Pie
Kim Willis, Master K9 Trainer
Retired VB Master Police Officer/Detective
City of Chesapeake Community Emergency Response Team, K9 Operations
Leader/Trainer, Operational K9 Teams, Animals in Disaster Coordinator
State Certified Professional Ground Searcher
Man Tracker Level I
North American Police Work Dog Association, Associate Member, and Associate
Member East Coast SAR Liaison
Chesapeake Community Animal Response Team "CART" (co-founder), Supported by Virginia State Animal Response Team "SART"
www.kustomk9training.com
kustomk9training@cox.net
Kim,
Merrick didn't come up with the name Turducken, it is a common name for a turkey stuffed with a duck, stuffed with a chicken (which is usually stuffed with a crab or crawfish dressing) & is served all over the deep south during holidays.
Thanks Angel. In that case I probably would not consider that one either. I had never heard the term. Maybe it is regional. I would bet the trademark laws were pretty interesting for dog food. One day when I have time I might just scan over them.
Kim
Merrick needs to" get a life' ! Can anyone tell me HOW you can register THANKSGIVING FEAST ??? These names are so generic that everyone uses them are they going to sue all of us evertime we invite family and friends to our Thanksgiveing Feast?
You would think that Merrick would have better things to do with their time and Money other than tie up the courts with this crap !
Thank you Susan ,for all your hard work at keeping our fur babies healthy. I have learned so much from your site on how to keep my cat healthy and happy. He has been such a blessing to us and we want him to be healthy, happy,and live a long comfortable life. And with all the info I have learned here, on this site Stinky has gone from a 25lb couch potatoe to a 17lb bright orange streak that loves to play hide & seek. All thanks to Susan and Blue Buffalo.
Merrick suing Blue Buffalo for using similar names for their canned food would be like Cambell's suing Progresso for making a "Chicken Noodle Soup."
Some of y'all need to read what Susan has written a little more carefully. Turducken is not one of the 2 products being contested for trademark infringement.
Btw Merrick has a Copyright and Trademark Notice on their site http://www.merrickpetcare.com/about_us/?tid=401
I'm going to take a wild guess that trademarks and copyrights are legally viewed differently for pet foods than they are for products for humans.
This isn't the first time Blue Buffalo has been sued by another pet food company over labeling. Hills sued them too and here's a report from The Truth About Pet Food: http://www.truthaboutpetfood.com/articles/364/1/More-to-the-Science-Diet-vs-Blue-Buffalo-Story/Page1.html
As much as both companies disgust me, Merrick for recall history, Blue Buffalo raises my hackles even more, based on their false bravado and misleading info since their inception. They had me hoodwinked for years that they were "the ones" who cared about quality and our pets. Honestly, I used Merrick and the very same products mentioned, and I was shocked to see how blatantly Blue Buffalo used nearly identical names for its canned products - I am 100% backing Merrick on this one - I could not get to my local independent pet store one day and had to do an emergency Pet Smart run and was indeed confused when I saw Blue Buffalo's canned products and did, indeed, buy a few, thinking that must have been what I had used in the past in an emergency, but figured I was just having a "senior moment" in thinking it had been Merrick. Later, when I researched and found my mistake - I was so disgusted at Blue Buffalo's tactics that I returned 2 unused cans to Pet Smart just due to the "principle" of their name-copying scheme! Again, don't think much of either company, but Merrick has a no-brainer strong case on this one, in my humble opinion! I would love Blue Buffalo to know petsumers aren't falling for their "lures", hook, line and sinker! LOL We're onto 'em, right?
*rolls eyes* Merrick had been going downhill way before this desperate act and wasting money to go to this ridiculous lawsuit.
Also if we didn't have such stupid marketing laws and patents for food, then Monsanto wouldn't be controlling 90% of all the seeds in this country.
These are trademarked names. Blue Buffalo is totally out of line to use similar ones. Be original. Turducken also has been one of theirs for years. That is total trademark infringement.
I work for B.B. but would never feed it to my animals.It's all about the sales not about the products or your pets.
Stay AWAY from any Blue Buffalo products! Our dog became violently sick after eating from a newly-opened bag of their food purchased from a local Petsmart store. We spent over $250.00 on vet bills, before he was better. Blue Buffalo's response was to deny paying for any of the vet bills; they offered to reimburse the $8.89 cost of the food. NEVER AGAIN! Hope they go out of business!