A Texas-based tomato producer has sued a Canadian company in federal court alleging that its packaging and label for grape tomatoes infringes the Nature Sweet Cherubs™ patents, issued in 2010 and 2011, and trademarks, in use since 2007. NatureSweet, Ltd. v. Mastonardi Produce Ltd., No. 3:12-cv-01424-G (U.S. Dist. Ct., N.D. Tex., Dallas Div., filed May 8, 2012). According to the complaint, the defendant’s “Angel Sweet” label copies the Sweet Cherubs™ label by using similar colors and a “winged tomato design mark.” Claiming that its mark, in which the company has made a considerable investment, is famous and distinctive, the plaintiff alleges a likelihood of confusion among consumers by defendant’s use of similar marks and packaging. The plaintiff also claims that the defendant’s grape tomatoes, in contrast to its own, “do not have the same consistent great taste throughout the year.”  

Alleging federal trademark infringement, dilution and unfair competition; unjust enrichment; and design patent infringement, the plaintiff seeks injunctive relief, recall and destruction of all infringing packaging and promotional material, an accounting, actual and treble damages, attorney’s fees, costs, and interest.