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Lies, Damn Lies, and Grape Nuts:

Ann Althouse, guest-blogging at InstaPundit posts about a failed consumer fraud lawsuit about "crunchberries": Turns out there are no actual berries called "crunchberries" in Cap'n Crunch, but that's not a problem, the judge ruled. (Who knew?)

But she also asks, "AND: Did anyone ever sue Grape-Nuts?," which is a great excuse to mention Nashville Syrup Co. v. Coca Cola Co., 215 F. 527 (6th Cir. 1914):

Since [1892], [the Coca Cola Co.] has continuously manufactured and sold a syrup under the name, 'Coca Cola'; and, used as a basis for carbonated drinks, the syrup, under this name, has had a large sale in all parts of the country.... Plaintiff enjoyed the exclusive use of the name from 1892 until 1910. In that year, J. D. Fletcher, now the active manager of the Nashville Syrup Company (herein called defendant), became interested with others in the manufacture of a somewhat similar syrup being sold under the name 'Murfe's Cola.' Later in that year they changed the name of their product to 'Murfe's Coca Kola,' and shortly afterwards, Mr. Fletcher became sole owner of the business, and the product was named 'Fletcher's Coca Cola,' and has been sold by him and his successor, the Nashville Syrup Company, under that name. [Coca Cola Co. sued.]

There remains the question whether the mark is deceptive.... [W]e assume that if the registered words clearly carried deception, and if their use really represented to the purchasers that the article was something essentially different from the thing which they actually received, the courts would not enforce any exclusive rights under such registration, both because plaintiff would come into court with unclean hands, and because such words could not be within the fair contemplation of the act, when it refers to 'any mark * * * which was in actual and exclusive use as a trade-mark,' etc....

The argument is that the use of the name, 'Coca Cola,' implies to the public that the syrup is composed mainly or in essential part of the coca leaves and the cola nut; and that this is not true. The fact is that one of the elements in the composition of the syrup is itself a compound made from coca leaves and cola nuts. This element becomes a flavor for the complete syrup, and is said to impart to it aroma and taste characteristic of both. This flavoring element is not in large quantity (less than 2 per cent.), but it is impossible to say that it does not have appreciable effect upon the compound. The question then is whether the use of the words is a representation to the public that the syrup contains any more of coca or of cola than it really does contain....

Plaintiff's counsel say, and so far as we see accurately say:

'The use of a compound name does not necessarily * * * indicate that the article to which the name is applied contains the substances whose names make up the compound. Thus, soda water contains no soda; the butternut contains no butter; cream of tartar contains no cream; nor milk of lime any milk. Grape fruit is not the fruit of the grape; nor is bread fruit the fruit of bread; the pineapple is foreign to both the pine and the apple; and the manufactured food known as Grape Nuts contains neither grapes nor nuts.' ...

We conclude that the name Coca Cola as applied to plaintiff's product, while undoubtedly suggestive, is not so substantially and really deceptive as to invalidate the registered mark.

PeterWimsey (mail):
This is the most blatant case of false advertising since "The Never-ending Story!"

/simpsons
6.5.2009 12:23pm
M N Ralph:
I'll give you a topic to discuss: The Holy Roman Empire was neither holy, nor Roman, nor an empire.

/SNL
6.5.2009 12:33pm
JohnBlink:
SNL?

Wasn't it first Voltaire??
6.5.2009 12:38pm
Dan Weber (www):
Someone owes me big for Smurfberry Crunch. It was indeed fun to eat and a smurfy, fruity breakfast treat, but I was a patsy in that it wasn't made by Smurfs nor did it contain Smurfberries.
6.5.2009 12:51pm
Calderon:
A similar case is Hayna v. Arby's, Inc., 425 N.E.2d 1174, 1183-4 (Ill.App.1981), which involved whether Arby's "roast beef" is actually roast beef. Also, insert obligatory joke about when McDonald's will be sued since no part of the chicken is call a McNugget.
6.5.2009 12:52pm
Crunchy Frog:

Also, insert obligatory joke about when McDonald's will be sued since no part of the chicken is call a McNugget.

No, but it did lead to a hilarious Carl's Jr. commercial wherein a bunch of white robed and latex gloved 'scientists' are examining a chicken looking for nuggets.
6.5.2009 1:02pm
M N Ralph:

SNL?

Wasn't it first Voltaire??



A little googling shows you are correct. And, I always had thought that was an original Mike Myers line.
6.5.2009 1:13pm
rick.felt:
Even worse, there's no such nobleman named "Count Chocula."
6.5.2009 1:23pm
mf24:
And Girl Scout cookies aren't made from Girl Scouts.
6.5.2009 1:24pm
CJColucci:
Any truth to the rumor that if you pour Coca Cola over Captain Crunch cereal you get an explosion?
6.5.2009 1:52pm
ray_g:
Is it legal to see Beer Nuts to minors?
6.5.2009 1:58pm
ray_g:
When I use a word, it means just what I choose it to mean--neither more nor less."

/Humpty Dumpty
6.5.2009 2:02pm
AndyM (mail):
http://news.bbc.co.uk/1/hi/wales/6159630.stm

Good to see that our courts were sane in this case; apparently the british regulators told a company they couldn't sell "Welsh Dragon Sausages" because customers might be deceived about what sort of meat was in them...
6.5.2009 2:25pm
einhverfr (mail) (www):
I would add that coca cola had to remove the coca elements for legal reasons (coca being illegal and all of that). It would seem to me that today nobody actually expects to find cocaine in any soft drink so that isn't deceptive. Similarly, I would think that for crunchberries to be deceptive, a reasonable person would have to conclude that it in fact did contain crunchberries merely from the name. Since nobody knows what a crunchberry is, it would seem to me that the bar to deception would be pretty high.

Finding otherwise might force Research In Motion to rebrand their products since the name MIGHT cause some unreasonable folks to conclude that the blackberry was made from real blackberries and hence an edible food rather than an electronic gadget.
6.5.2009 2:33pm
mariner:
No, but it did lead to a hilarious Carl's Jr. commercial wherein a bunch of white robed and latex gloved 'scientists' are examining a chicken looking for nuggets.

Maybe they should have been examining roosters.

I wonder what a rooster's cough sounds like.
6.5.2009 2:37pm
Dr. Weevil (mail) (www):
I can't find anything about this on Google, but I have a very clear memory of reading in Time that the FDA was trying to ban the import of Harvey's Bristol Cream and the less well-known Bristol Milk for false advertising, on the grounds that neither contains any dairy products. That would have been around 40 years ago, since I think I was in high school or college when I read it. Can anyone confirm?
6.5.2009 2:48pm
emsl (mail):
By the way, Captain Kangaroo was, in fact, neither a captain nor a kangaroo.
6.5.2009 2:53pm
Gabriel McCall (mail):
apparently the british regulators told a company they couldn't sell "Welsh Dragon Sausages" because customers might be deceived about what sort of meat was in them...


I guess they don't have hamburgers, either.
6.5.2009 2:54pm
JJS:
and the snozberries don't really taste like snozberries!
6.5.2009 2:55pm
rick.felt:
I would add that coca cola had to remove the coca elements for legal reasons (coca being illegal and all of that). It would seem to me that today nobody actually expects to find cocaine in any soft drink so that isn't deceptive.

Coca-Cola still contains an extract of the coca leaf
.
6.5.2009 4:40pm
PubliusFL:
I've also heard that Fruity Pebbles do not actually contain any stone at all.
6.5.2009 4:54pm
pjohnson (mail):
I hesitate to mention Old Granddad...
6.5.2009 4:58pm
Philistine (mail):
Oh sure, and next you're going to tell me that no babies were used in making baby oil and baby powder.
6.5.2009 5:11pm
mooglar (mail):
If you were stupid enough to think that there was something called a "crunchberry" and that Crunchberries cereal contained them despite the fact that there is nothing resembling anything from nature in it, would you really advertise your stupidity by actually suing over it?

Oh yeah, I guess you would. Isn't there a saying about it being better to be quiet and thought an idiot than to take a company to court and prove it?

Also, how could you possibly be so outraged about the lack of "crunchberries" in Crunchberries cereal that you felt the need to sue over it? I mean, did this guy invest millions of dollars stocking up on Crunchberries as his healthy, berry-rich post-apocalypse food for his bunker or something? Why not just, I don't know, buy some other cereal that does have berries in it?
6.5.2009 5:29pm
TOML (mail):
Many years ago, I think in the early 70s, there was a case in which the Federal Trade Commission went after a clothing manufacturer because their "Red Fox" brand overalls were determined to contain not even a single strand of red fox fur. After protracted argument, I believe this consumer-ripping-off company was forced to sign a consent decree promising to never do such a thing again. I wish I had kept a copy of this whole farcical proceeding. So maybe "crunchberry" style actions are less likely to succeed nowadays?
6.5.2009 5:49pm
einhverfr (mail) (www):
Philistine wrote:

Oh sure, and next you're going to tell me that no babies were used in making baby oil and baby powder.


Say it isn't so! I like my hashed potatoes! I can't imagine they don't contain hash or pot!
6.5.2009 6:32pm
ChrisTS (mail):
Dan Weber:
Someone owes me big for Smurfberry Crunch. It was indeed fun to eat and a smurfy, fruity breakfast treat, but I was a patsy in that it wasn't made by Smurfs nor did it contain Smurfberries.


AH! But it might contain Smurfs.
6.5.2009 7:52pm
ChrisTS (mail):
Actually, this isn't so funny, now that I realize I'll have to give up the 'But, it's organic and has protein' argument for Wild Turkey.
6.5.2009 7:54pm
one of many:
Dang it, now someone tells me I wasted all those loaves of bread I planted. I thought I just needed to find the right fertilizer.
6.5.2009 11:55pm

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