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Whole Foods Loses EatRight Foods Cookie Appeal

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By George Khoury, Esq. on January 31, 2018 5:58 AM

The cookie business is serious business. And when Whole Foods used the name "Eat Right America" to brand food items that were not made by the cookie maker EatRight Foods (who actually sold their cookies at Whole Foods), Eat Right Foods had to put up a fight to protect their trademark.

Unfortunately for EatRight, the cookie trademark fight hit a serious setback in 2015 when the district court dismissed their claims due to a laches defense. However, on appeal, the Ninth Circuit just ruled that the district court's judgment was a bit hasty, and the panel of judges reversed and remanded.

Right Foods Trademark

While, on the outside, this case just looks like a fight over the brand name of some foodstuffs, there are a few bigger issues at play. Namely, the district court accepted a laches defense on summary judgment, despite the delay having been occasioned by attempting to resolve the problem short of litigation directly with the defendant.

The appellate court explained that Whole Foods' laches defense was inapplicable because EatRight clearly was not being unreasonable in their delaying litigation. The record contained consistent communication about EatRight's attempt to resolve the issue. The record even reflected that EatRight resolved the issue, without litigation, between itself and the third party behind Whole Foods using "Eat Right America."

Additionally, the appellate court found that the district court's decision rested upon some flawed findings of fact. One such flawed fact was when EatRight had constructive knowledge of Whole Foods' alleged infringement. Somehow, the district court decided that EatRight should have known that Whole Foods was infringing in 2009, despite Whole Foods not using the allegedly infringing marks until 2010.

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