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.


October 4

6 Steps You Should Take If Your Supplier Delivers Damaged Goods

If your business is product-based, sooner or later one of your suppliers is bound to deliver damaged goods. Here are six steps you should take when that happens:

1.      Take a Picture. As soon as you notice the damage, take several pictures of the damaged items and the container they were delivered in. If your camera has a time-stamp feature, use it.  Email a set of the pictures to yourself for safe-keeping. Make sure the pictures are clear and the damage is obvious.

April 26

Making the Case for Small Law

I used to work at large, national law firms (often referred to as Biglaw). My clients were often Fortune 500 companies. When I worked on legal matters for these clients, the case teams generally consisted of one senior partner, sometimes one junior partner, and one to two associates. Sometimes the teams were made up of one partner and one associate. Case teams were insular; rarely, if ever, did we consult firm attorneys who were not on the case team.  Even at a size of two to four attorneys, often the case teams were overstaffed, i.e. the partner or associate could have handled all of the work on his/her own.

Let me be clear: there were no all-hands firm meetings about case strategy a la The Good Wife or L.A. Law.

When you hire an attorney at Biglaw, you may technically hire the firm, but, in reality, you hire the attorney. Biglaw attorneys charge more because they rent class A office space, have lots of staff, and because they can. Not because they are necessarily better attorneys. And not because your case will have the attention of the whole firm (or even a substantial portion of it).

Make no mistake. Your case team will be the only attorneys paying attention to your case.

And that is fine. In fact, it’s ideal. It does not take an army of attorneys to manage a case, even a large one.

Yes, there is the issue of document review and production. But most firms, small and large, contract with temporary attorneys to complete document review and production. The few members of your case team manage the review.

In other words, there is no magic to hiring Biglaw. The only true difference between Biglaw and small law is the price.

You could have hired me for almost $700 a year ago. Now that I am practicing in my own small law firm, I can charge much less. And I will guarantee you that my entire firm will be paying attention to your case.