October 18

Terra, D.O.P. and the Lanham Act

San Marzano tomatoes are often praised as the best tomatoes in the world. But not every San Marzano tomato is a tomato grown in San Marzano sul Sarno in the Campania region of Italy because the label “San Marzano” refers to both a type of tomato and a location. And some producers are growing San Marzano style tomatoes in the United States, are calling them “pomodoros,” which is, of course, Italian for tomato, and may be giving Italian producers of authentic D.O.P. San Marzano tomatoes agida. Why? Because the American producer is relying on the good reputation of the San Marzano brand to sell its product that is not held to the strict guidelines imposed by Italian law.

Do the tomatoes grown in California taste the same as the ones grown in San Marzano sul Sarno, Italy? An American consumer, who has never tasted authentic, San Marzano tomatoes may never know. The purveyor of true San Marzano tomatoes not only loses out on the initial sale, but may lose future sales either because the consumer is underwhelmed by the inauthentic product or because the consumer is satisfied with it. In either case, the consumer is unlikely to reach for the more expensive, true San Marzano tomatoes the next time he/she is in the market. Thus, it looks like the tomatoes may be ripe for litigation.

Does terra matter under the law? The short answer is, yes, the producer of authentic San Marzano tomatoes might be able to obtain damages under U.S. law. Although there are no D.O.P.( Denominazione d’Origine Protetta), A.O.C. (Appellation d’Origine Contrôlée), or similar origin designation under U.S. law, the courts have made clear that a misrepresentation of product origin or even a label that is misleading about product origin can violate the Lanham Act, which protects against false affiliation and false advertising. And a competitor who can show injury can bring a civil action even if the FDCA takes no issue with the food label. Relief may include injunctive relief, lost profits, disgorgement of profits gained as a result of the false advertising, amounts necessary for corrective advertising, and, in the exceptional case, attorneys’ fees. The Lanham Act permits courts to increase damages to no more than three times the actual damages proved.

At Felicello Law, we are fascinated by food and the law. Contact us at info@felicellolaw.com or on Twitter @rfelicello if you are interested in continuing the discussion.

PLEASE NOTE THAT FELICELLO LAW P.C. DOES NOT REPRESENT ANY PURVEYORS OF TOMATOES.

March 31

Simple Elegant Argument

As a litigator, I often find myself trying to simplify my clients problems as much as possible. Clients often resist this process and want to go after their opponent for every slight or hard feeling.

There are a few problems with a “kitchen sink” approach to litigating. First, you are virtually guaranteed not to have a quick resolution to the matter when you seek to argue about everything that went wrong in the parties’ relationship. The court and the parties are bound to get bogged down in the myriad details. The process is likely to be time-consuming, and both sides are going to end up with large legal bills. Second, not all problems or disagreements are legal problems that the law can fix. By simplifying the problems to those that have a clear legal answer, you can generally get to a positive outcome in a (relatively) shorter period of time. Third, and most importantly, simple arguments are more likely to win. If you are able to present the court with a simple, elegant solution to the dispute, the court is going to be more inclined to rule in your favor.

And it often turns out that once you solve the “simple” legal problem, the other details either become much less significant or work themselves out.

If you need help simplifying your business relationships, contact us at 646-480-5722 or info@felicellolaw.com.

May 17

The JOBS Act from a Securities Litigation Perspective

Though it is primarily addressed at jumpstarting the initial public offering (IPO) market for startups and emerging growth companies (EGCs), the recently enacted Jumpstart Our Business Startups (JOBS) Act may be a boon for securities litigators.

The Act includes a number of provisions that disrupt the status quo and increase the litigation risk associated with the IPO process. My recent article in the Securities Litigation Report provides a summary of some of the JOBS Act’s provisions that may lead to an increase in filed securities litigation actions.