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"Yummi Bears" Trademark Lawsuit Still Alive After Judge's Ruling

October 31, 2012,

gummy_bears.jpgOrange County - This week, a federal Judge in the Central District of California in Orange County ruled in favor of Hero Nutritionals to keep its trademark infringement claim alive against vitamin rival Nutraceutical Corporation.

In the lawsuit, Hero Nutritionals claims that Nutraceutical Corp. is engaging in unfair competition and trademark infringement by using the word "yummy" for its nutritional supplements marketed to children. Hero Nutritionals currently owns the trademark rights to "Yummi Bears" for vitamins.

In a hearing held Monday in Orange County, U.S. District Judge Andrew J. Guilford, reviewed Nutraceutical's motion for summary judgment and denied it stating that it was his belief that the claims asserted by Hero Nutritionals would be better decided by a jury. He further ruled that although it was far from certain that consumers would likely be confused by the names of the two products, there were "genuine issues of fact" related to Hero's allegations that should be settled at trial.

The trial is scheduled for December of this year and both sides had submitted opposing filings just a day prior to Judge Guilford's most recent ruling. In its recent filings, Hero alleges that Nutraceutical's nutritional supplements for children violate its trademark rights on "Yummi Bear" products. In contrast, Nutraceutical asserts that it is "highly unlikely" that consumers would be confused between the products its makes and those of Hero. Nutraceutical argues that the sales history of the products themselves demonstrates that confusion is highly unlikely as to the actual source of these products. Nutraceutical further added that it has been using the term "yummy" on chewable children's supplements for 14 years. In that time, there has not been a single instance of actual confusion and Hero has made no argument against the use until now.

Hero asserts that Nutraceutical is selling infringing products such as "Yummy Greens" and "Yummy Gummy" which it alleges are clear violations of its trademark rights. A representative for Hero stated that "[Nutraceutical's] use of the name 'Yummy Greens' to market bear-shaped gummy vitamins wrongfully infringes on Hero's Yummi trademarks [and] free-rides on the substantial efforts and expenditures Hero invested to establish its reputation and goodwill through public recognition of the 'Yummi' brand." Hero also believes that there is a strong likelihood that if its case is allowed to go to trial, a jury will find in its favor on its trademark infringement and unfair competition claims.

The lawsuit between Hero and Nutraceutical Corp was initially filed in August 2011. The court documents allege trademark infringement under the federal Lanham Act, as well as unfair competition under federal and state laws. A motion for summary judgment asserting arguments similar to those presented in Monday's memorandum was filed by Nutraceutical in September of this year. However, after reviewing the relevant documents, Judge Guilford denied that motion in a minute order released Tuesday.