Hewell said that quite a bit of the Internet firestorm Werbel's cereal litigation induced was based on a faulty premise. It isn't that his client thought a crunchberry was an actual berry -- that'd be ridiculous! -- it's that he thought it wasn't an amalgamation of dyes, chemicals, and other crap with no nutritional value.
"The complaint states that the use of the name 'crunchberries,' and with the depiction of fruit on the box, and advertising with different colored berries, ... the impression was conveyed that it had some nutritional fruit content," he said. "It's actually virtuallly nil."
Hewell handled a similar case in Sacramento last year in which a judge emphatically ruled that a "reasonable consumer" would figure out what a crunchberry is -- and that there is no such thing as a crunchberry bush.
Fair enough -- but this time, Hewell says he's got a secret weapon: the original trademark application for the cereal in which the examiner felt the name could lead to confusion among consumers.
Whether that line of attack stays crunchy in milk remains to be seen.