Desert Glory Sues to End Consumer Confusion Caused by Copycat Container

SAN ANTONIO, Sept. 20 /PRNewswire/ -- Desert Glory, Ltd. announced today that it has filed a lawsuit charging that a competitor has copied the distinctive packaging that Desert Glory created for its successful NatureSweet® Cherubs® brand of tomatoes.  The complaint alleges that the competitor intentionally chose a tomato package design that is likely to confuse consumers and take advantage of the Cherubs brand's reputation for greenhouse-grown tomatoes with superior taste and high safety standards.  Desert Glory asks that the Court make the defendant stop packaging its new SweetRipes brand tomatoes in the copycat container.

The lawsuit filed in federal court in Tucson alleges trademark infringement and unfair competition by Ag-Mart Produce, Inc., a Florida-based distributor of fruits and vegetables doing business as Santa Sweets Inc., with packing and distribution facilities in Nogales, Arizona.

"Our container is more than a package – it is part of our DNA.  The unique package that we created and trademarked represents our company's dedication to great taste, quality, safety and high standards," said Desert Glory CEO and President Bryant Ambelang.  

The complaint alleges that, "as a result of Desert Glory's success in the marketplace, Ag-Mart Produce, Inc. has recently begun selling its SweetRipes brand tomatoes in a package whose overall commercial impression is likely to cause confusion with Desert Glory's Cherubs brand package."  The complaint further asserts that Ag-Mart intentionally copied the Cherubs package to take advantage of its success.

"Cherubs without the distinctive packaging are still great tomatoes.  But a confusingly similar package without Cherubs is an empty promise to the consumer," said Ambelang.

Desert Glory's lawsuit asks the court to stop Ag-Mart/Santa Sweets' continued sales of tomatoes in the copycat container, so that Desert Glory does not continue to be damaged by the unfair competition and consumers are protected from confusion.  Desert Glory has also asked the court to award it the profits that Ag-Mart/Santa Sweets may make through its trademark infringement, as well as compensate Desert Glory for the damages it suffers.

Package and product designs that serve to identify the source of the product are protected by well-established federal trademark law.  Examples registered with the U.S. Trademark Office include the Mrs. Butterworth's package for maple syrup, the shape of the jar for Pace picante sauce, the shape of the Goldfish cracker, and the design of the iPod Shuffle.  The Cherubs package design is also registered as a trademark with the U.S. Trademark Office.

When a competitor adopts a product or package design that, based on its overall commercial impression, is likely to be confused by consumers with the protected design, or suggests an affiliation between the competitor and the owner of the protected design, it is guilty of trademark infringement and unfair competition in violation of federal law.

"Desert Glory spent years and millions of dollars to develop and protect its trademark rights in the NatureSweet Cherubs packaging," said Ambelang.  "It's wrong for a competitor to copy our hard work in ways likely to confuse consumers for their own gain."

"Fair competition is one of the foundations for the American system of free enterprise.  When a company violates the basic tenets of fair competition, by packaging its products in a manner that is likely to cause confusion with the products of a successful competitor, it strikes at the heart of the system," said Ambelang.

"The confusing nature of a copycat container could also confuse and mislead consumers and others to wrongly believe that the copycat container is a Desert Glory product, or that the two companies are somehow connected – neither of which would be true," said Ambelang.  

The complaint alleges that the tomatoes sold in the infringing container are not the same premium quality as Desert Glory's Cherubs tomatoes.  All NatureSweet Cherub tomatoes are greenhouse grown from proprietary seeds, are allowed to fully ripen on the vine and are 100-percent traceable back to a specific greenhouse.

Founded in 1990, Desert Glory pioneered the concept of providing greenhouse-grown tomatoes for broad, branded commercial distribution.  By growing its tomatoes in greenhouses, Desert Glory is able to more accurately control quality, food safety and environmental factors than is the case with field-grown tomatoes.  

Desert Glory has established a track record for developing branded products and distinctive packaging in categories that were previously considered a commodity.  Ambelang cited the company's innovative marketing of its greenhouse-grown cherry tomatoes in the now-familiar, distinctive yellow placard and red mesh bag, when other cherry tomatoes were commonly sold in "clamshell" containers, similar generic packaging, or in bulk.  The suit also claims that, in the fresh tomatoes category, Desert Glory's package designs remain the only packages that standing alone are recognized by consumers to identify the source of the product.

Continuing with its strategy of developing branded packaging for its premium products, Desert Glory spent years creating a unique package design for the introduction of its tomato product under the brand name Cherubs so that consumers would be able to recognize the product by its package design.

The Cherubs package is inherently distinctive.  It serves to identify and indicate the source of Desert Glory's tomatoes, and to distinguish Desert Glory's products from those of others, according to the complaint.  

As a result, the Cherubs package design has become well-known and widely recognized by consumers, according to the complaint.

"Consumers know and respect the Cherubs package design as a symbol of safe, high-quality, premium tomatoes. That's a promise to consumers that we're committed to keeping and protecting, which is why we filed this lawsuit," Ambelang said.

About Desert Glory

Desert Glory, Ltd., based in San Antonio, Texas, is the leading grower of premium fresh tomatoes in North America under the NatureSweet® brand. As a leading brand of tomatoes in the U.S., its growing operations comprise over 1,000 acres of greenhouse facilities and proudly employ over 5,000 associates.

SOURCE Desert Glory, Ltd.