Well, that's one way of putting it.
In granting Crunch Berries parent company PepsiCo's request to dismiss
the suit last month, Armstrong doused Werbel's
claim that the public would be deceived into believing Crunch Berries
actually contain fruit because of the reference to "berries" and
because they are "shaped to resemble berries."
"Nonsense," Armstrong writes, firing up her fighting words. "It is
obvious from the product packaging that no reasonable consumer would
believe that Cap'n Crunch derives any nutritional value from berries. As
an initial matter, the term 'Berries' is not used alone, but always is
preceded by the word 'Crunch,' to form the term, 'Crunch Berries.' The
image of the Crunch Berries, which is 'ENLARGED TO SHOW TEXTURE,' shows
four cereal balls with a rough, textured surface in hues of deep purple,
teal, chartreuse green and bright red. These cereal balls do not even
remotely resemble any naturally occurring fruit of any kind."Snap, Judge Armstrong. Crackle and pop, Werbel.
Armstrong also shot down Werber's attempt to claim as relevant a comment
made by a trademark examiner in 1967 that "The word BERRIES is
considered either merely descriptive or deceptively misdescriptive of
goods here and should be disclaimed from the mark." The judge responded:
"...it is apparent that the examiner's comment was not deemed compelling
given that Quaker Oats' trademark application for Cap'n Crunch was
approved in 1968, and has been renewed numerous times since then."
Werbel then voluntarily dismissed his suit against Froot Loops as well.
No word on whether he now follows his common sense -- or just his
H/T | On Point
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