Thursday, December 9, 2010

Butterball Beware! False Marking Plaintiffs Get Creative, Dig Deeper to Support Intent to Deceive Allegations

With intent to deceive at the forefront of false marking cases, plaintiffs are getting quite specific in their pleadings of just how deceptive false marking practices can be:
Plaintiff was deceived into choosing a Butterball Turkey when looking to buy at the grocery store and noticed the added convenience of a lifting device included in the Butterball Turkey packaging.

Plaintiff called BB's consumer affairs on November 29, 2010 at 5:53 pm to inquire about the patent number of the turkey lifter. Plaintiff talked to a BB employee named Jenna who spoke to her supervisor and returned with the answer that they didn't know the patent number but that there was a patent on the turkey lifter. After a few minute conversation Jenna continued to conclude the phone call with "I just don't know the patent number but I do know there is a patent." BB blatantly intended to deceive the plaintiff into believing the false patent mark advertising of a patented turkey lifter was correct.

Plaintiff returned to the store and conversed with fellow shoppers at the turkey freezer and discussed the lifter device. It was apparent that the public is readily deceived, like the Plaintiff was, into thinking no other turkey will be sold with such a device because it is patented.
What are the potential damages for these offenses in the view of the plaintiff?
Upon information and belief, more than 232 million turkeys are consumed in the United States in each year. It's estimated that 46 million of those turkeys are eaten at Thanksgiving,22 million at Christmas and 19 million at Easter. With BB claiming to account for 20 percent of the total turkey production in this country it is likely that at least during the 2010 Thanksgiving period alone, BB sold over 9 million falsely marked turkeys, and thus the damages for which BB are responsible in this action could far exceed $10,000,000.00.
Buyers v. Butterball, LLC, 4-10-cv-00672 (TXED December 7, 2010, Complaint)

Of note, this is the second false marking suit filed against Butterball. In the previously filed Promote Innovation v. Butterball, LLC, filed on Black Friday of this year in the same district, the turkey lifter is again at issue. Apparently though, the plaintiffs in this case asked someone a little more helpful than Jenna. They list the patent for the lifter as 3,784,069.

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