Llc v. the Coca Cola Co.
| Citation | 727 F.Supp.2d 849 |
| Decision Date | 05 May 2010 |
| Docket Number | No. CV 08-06237 SJO (FMOx),CV 08-06237 SJO (FMOx) |
| Court | U.S. District Court — Central District of California |
| Parties | POM WONDERFUL LLC, Plaintiff, v. The COCA COLA COMPANY, Defendant. |
Allen J. Ruby, Allen Ruby Law Offices, San Jose, CA, Andrew Eric Asch, Christopher Van Gundy, Daniel A. Beck, Roll International Corporation, Andrew Steven Clare, Daniel Scott Silverman, David Aaron Grossman, Mark D. Campbell, Walter Allan Edmiston, Kristina M. Diaz, Loeb and Loeb, Los Angeles, CA, for Plaintiff.
Cynthia L. Sands, Kenneth M. Jones, Nelson L. Atkins, Gonzalez Saggio & Harlan LLP, Los Angeles, CA, Ryan Sirianni, Sarah E. Zgliniec, Steven A. Zalesin, Travis J. Tu, Yiling Chen-Josephson, Vivian Storm, Patterson Belknap Webb & Tyler LLP, New York, NY, Shani Thome, The Coca-Cola Company, Atlanta, GA, for Defendant.
ORDER GRANTING IN PART, DENYING IN PART DEFENDANT'S MOTION FOR SUMMARY JUDGMENT PURSUANT TO FED. R. CIV. P. 56; DENYING PLAINTIFF'S MOTION FOR PARTIAL SUMMARY ADJUDICATION RE: DEFENDANT'S AFFIRMATIVE DEFENSES OF SAFE HARBOR AND COMPLIANCE WITH LAWS [Docket Nos. 149, 150]
This matter is before the Court on Defendant The Coca Cola Company's ("Coca Cola" or "Defendant") Motion for Summary Judgment Pursuant to Fed.R.Civ.P. 56, filed December 28, 2009, and Plaintiff Pom Wonderful LLC's ("Pom" or "Plaintiff") Motion for Partial Summary Adjudication Re: Defendant's Affirmative Defenses of Safe Harbor and Compliance with Laws, also filed December 28, 2009. The parties filed Oppositions and Replies to the respective Motions. The Court found this matter suitable for disposition without oral argument and vacated the hearings set for January 25, 2010. See Fed.R.Civ.P. 78(b). For the following reasons, Coca Cola's Motion is GRANTED IN PART and DENIED IN PART, and Pom's Motion is DENIED.
Pom produces, markets, and sells POM WONDERFUL® brand bottled pomegranate juice and various pomegranate juice blends, including a pomegranate blueberry juice blend. (First Am. Compl. ("FAC") ¶ 11; Pl.'s Statement of Genuine Issues of Fact and Proposed Conclusions of Law in Opp'n to Def.'s Mot. for Summ. J. ("Pl.'s SOF Opp'n") ¶ 1.) Coca Cola, under the brand Minute Maid, is one of Pom's primary competitors in the bottled pomegranate juice market. (FAC ¶ 17; Pl.'s SOF Opp'n ¶ 2.) In September 2007, Coca Cola announced a new product in its "Minute Maid Enhanced Juices" line, entitled "Minute Maid® Enhanced Pomegranate Blueberry Flavored 100% Juice Blend." (FAC ¶ 18; Pl.'s SOF Opp'n ¶ 3.) The formal name of "Minute Maid® Enhanced Pomegranate Blueberry Flavored 100% Juice Blend" is "Pomegranate Blueberry Flavored Blend Of 5 Juices" ("the Juice"). Specifically, in ranking the ingredients of the Juice by volume, apple ranks first, grape ranks second, pomegranate ranks third, blueberry ranks fourth, and raspberry ranks fifth. (FAC ¶ 22.)
"The Juice has used the same bottle and label since it was first introduced." (Pl.'s SOF Opp'n ¶ 8.) A "prominent banner or 'flag' (the "Banner") on the Juice labelstates 'Omega-3/D HA HELP NOURISH YOUR BRAIN 5 Nutrients To Support Brain & Body.' " (Pl.'s SOF Opp'n ¶ 9.) Pom acknowledges that the Banner is prominent, but contends that "the text 'Omega-3/DHA' and '5 Nutrients To Support Brain & Body' is not prominently displayed." (Torrey Decl. Ex. 1, p. 9.) Above the Banner reads "100% Fruit Juice Blend," and below the Banner appears a fruit vignette (the "Fruit Vignette") that "depicts each of the five fruit ingredients in the Juice." (Torrey Decl. Ex. 1, p. 9; Pl.'s SOF Opp'n ¶¶ 10, 11.) Specifically, the Fruit Vignette includes images of a half-cut pomegranate, a half-cut apple, and several blueberries, grapes, and raspberries. (Torrey Decl. Ex. 1, p. 9.) Below the Fruit Vignette reads "Pomegranate Blueberry," and below that, "Flavored Blend Of 5 Juices." (Torrey Decl. Ex. 1, p. 9.) "The back of the Juice bottle reads 'Minute Maid Enhanced Pomegranate Blueberry Is Made With A Blend Of Apple, Grape, Pomegranate, Blueberry, And Raspberry Juices From Concentrate And Other Ingredients.' " (Torrey Decl. Ex. 1, p. 9.) It is undisputed that "[t]he back of the bottle does not include other references to pomegranates or blueberries." (Pl.'s SOF Opp'n ¶ 16.)
Coca Cola advertises the Juice "through television and print ad [vertisements], coupons, in-store promotions, and on the Minute Maid website." (Pl.'s SOF Opp'n ¶ 17.) Coca Cola maintains that its "brain-nourishment" claims, which form the centerpiece of the Juice's advertising and marketing campaign, "are based upon the unique combination of added nutrients, including not only Omega-3/DHA, but also choline, vitamin B-12, vitamin E, and vitamin C, all of which have been shown to contribute to brain development." 1 (Def.'s Mot. 3.) Coca Cola, therefore, contends that its "help nourish your brain" claim is fully substantiated, and that in fact, the National Advertising Division of the Council of Better Business Bureaus ("NAD") concluded that "[Coca Cola] ha[s] a reasonable basis for its claim that [the Juice] can 'help nourish your brain.' " (Def.'s Mot. 3; Decl. of Steven A. Zalesin in Supp. of Def.'s Mot. for Summ. J. ("Zalesin Decl.") Ex. 2.) "Pom does not contest the scientific accuracy of this claim." (Def.'s Mot. 3.) As such, Coca Cola argues that its advertising and marketing, separate and apart from the naming and labeling of the Juice, focus on the Juice's added nutrients and "brain nourishment," not on the Juice's pomegranate or blueberry content. (Def.'s Mot. 3.) Coca Cola further notes that its "[o]ther ads similarly emphasize that the Juice tastes great." (Def.'s Mot. 3.)
Coca Cola contends that its "coupons have included pictures of the Juice bottle, but have focused on savings, rather than the fruit ingredients in the product," and that "in-store promotional materials describe the Juice as a 'Pomegranate Blueberry Flavored 100% Juice Blend' or 'PomegranateBlueberry Flavored Blend Of 5 Juices,' and [have] pictured the bottle sometimes next to its fruit ingredients-but have made no other references to pomegranates or blueberries." (Pl.'s SOF Opp'n ¶¶ 18, 20; Torrey Decl. Exs. 2, 3.) Pom, on the other hand, alleges that Coca Cola's "coupons prominently feature, in large text, the name 'POMEGRANATE BLUEBERRY,' " and that "[t]he promotional materials further display images of pomegranates only-and no other fruit-which are heaped about the bottle." (Pl.'s SOF Opp'n ¶¶ 18, 20; Pl.'s Statement of Additional Material Facts ("Pl.'s Addt'l SOF") ¶¶ 39-40; Torrey Decl. Exs. 2, 3.)
Coca Cola's print advertising has included campaigns entitled 'Love it or it's free!,' 'Helps nourish your brain and your sense of taste,' 'help nourish your brain,' 'OOPS Someone forgot to boost,' and 'You 2.' (Torrey Decl. Ex. 4; Pl.'s SOF Opp'n ¶¶ 22-23.) Coca Cola argues that these "print advertisements all featur[ed] pictures of the [Juice] bottle with few other references to pomegranates." (Pl.'s SOF Opp'n ¶ 22.) Coca Cola states that "[the Juice's] print ads [have] focused on the nutritional benefits of the Omega-3D/DHA fortification and the product's great taste rather than the Juice's pomegranate juice content." (Pl.'s SOF Opp'n ¶ 24.)
Pom disputes whether the focus of Coca Cola's print advertisements is solely on the nutritional benefits of the Omega-3/DHA fortification, and the Juice's good taste, and not on the Juice's pomegranate juice content. (Pl.'s SOF Opp'n ¶¶ 22, 24; Torrey Decl. Ex. 4.) Pom argues that Coca Cola's print advertisements prominently display the words "Blueberry Pomegranate." (Pl.'s SOF Opp'n ¶¶ 24, 25, 26.) Pom cites Coca Cola's print advertisements, which include "Minute Maid Pomegranate Blueberry flavored juice blend packs goodness for your brain and body in every sip" as illustrative of Coca Cola's emphasis on the Juice's pomegranate blueberry content. (Pl.'s SOF Opp'n ¶ 24.) Furthermore, Pom cites one print advertisement that depicts only the top half of the Juice's bottle, thereby excluding "Pomegranate Blueberry Flavored Blend Of 5 Juices." (Torrey Decl. Ex. 4, p. 36.)
Coca Cola maintains that the television advertisements used to promote the Juice have "flashed images of the five fruit ingredients, but have made no other references to pomegranates or blueberries." (Pl.'s SOF Opp'n ¶ 29.) "For example, [Coca Cola cites] the 'We Meet Again' commercial, [that] focused on a man who mistook his daughter's art teacher for an ex-girlfriend before drinking the Juice, but correctly identified her afterwards." (Pl.'s SOF Opp'n ¶ 30.) Coca Cola argues:
The commercial showed the man drinking from the bottle, displayed the bottle and its 'Help Nourish Your Brain' flag on its own, and flashed the Juice's five fruit ingredients ... An announcer described the Juice as 'Minute Maid Enhanced with a five-nutrient boost,' but made no mention of pomegranates or blueberries.
Pom, on the other hand, contends that Coca Cola's television advertising identifies the Juice as a "pomegranate and blueberry juice blend," first, and makes no explicit reference to the Juice's flavor. (Pl.'s SOF Opp'n ¶ 29; Pl.'s Addt'l SOF ¶¶ 41, 42.) Pom further alleges that the paper copy that Coca Cola submitted as evidence of the "Help Nourish Your Brain" commercial "does not depict the Juice's five fruit ingredients." (Pl.'s SOF Opp'n ¶ 31.)
Finally, Coca Cola maintains that its "Minute Maid website [the "EnhancedJuices Website"] contains information about the Juice." 2 (Torrey Decl. Ex. 6; Pl.'s SOF Opp'n ¶ 33.) Coca Cola states that "[r]eferences to the Juice are on [the Enhanced Juices Website], and [also] in a section of...
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