IP Law Daily, TRADEMARK—D. Conn.: Edible Arrangements unable to dismiss antitrust counterclaims in infringement suit, (Nov 16, 2015)

By Linda O’Brien, J.D., LL.M.

In a trademark infringement action by Edible Arrangements against rival gourmet food retailer 1-800-Flowers.com, antitrust counterclaims, alleging that Edible Arrangements lacked protectable trademark rights and asserted objectively baseless claims, were allowed to proceed by the federal district court in Hartford, Connecticut (Edible Arrangements International, LLC v. 1-800-Flowers.com, Inc., November 12, 2015, Shea, M.).

Edible Arrangements and 1-800-Flowers compete in the market for online sales of edible fruit arrangements. Edible Arrangements, which controls about 80 percent of the market, filed six trademark applications to protect its logo—a stylized strawberry and vine design, coupled with several word combinations, each of which included the words “fruit bouquets.”

In November 2014, Edible Arrangements filed suit against 1-800-Flowers for infringement of its registered trademarks. In February 2015, 1-800-Flowers filed a counterclaim, asserting counts for monopolization and attempted monopolization in violation of the Section 2 of the Sherman Act. The counterclaim alleged that Edible Arrangements used sham litigation based on improperly obtained trademark registrations to suppress competition.

In June 2015, Edible Arrangements moved to dismiss

the counterclaim on the grounds that its efforts to protect its federally registered trademarks fall within the scope of Noerr-Pennington immunity. Edible Arrangements also contended that 1-800-Flowers had not alleged a pattern or series of sham litigation and its claim regarding purported misconduct before the U.S. Patent and Trademark Office was legally insufficient.

In denying Edible Arrangement’s motion to dismiss, the brief court order did not provide details of the decision but indicated that the reasoning was stated during a hearing on the motion.

The case is No. 3:14-cv-01744-MPS.

Attorneys: Patrick M. Fahey (Shipman & Goodwin LLP) for Edible Arrangements International, LLC and Edible Arrangements LLC.

Companies: Edible Arrangements International, LLC; Edible Arrangements LLC; 1-800-Flowers.com, Inc.

Cases: Trademark ConnecticutNews