Campbell Soup Co v. Midwest Processing - Trademark Unsaleable

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IN THE UNITED STATES DISTRICT COURT FOR

THE MIDDLE DISTRICT OF ALABAMA
SOUTHERN DIVISION
CAMPBELL SOUP COMPANY; )
CSC BRANDS LP; )
CAMPBELL SOUP SUPPLY )
COMPANY LLC; and CAMPBELL )
SALES COMPANY, )
)
Plaintiffs, )
)
vs. ) Civil Action No.: 1:14-cv-00608
)
MIDWEST PROCESSING, LLC; )
DEXTER JORGENSEN, individually, )
and doing business as Midwest )
Processing, LLC; RICHARD TATE, )
individually, and doing business as )
Tate Grocery, Inc.; TATE GROCERY, )
INC.; and GOLDEN VIEW )
LOGISTICS, INC., )
)
Defendants. )
VERIFIED AMENDED COMPLAINT
Plaintiffs Campbell Soup Company (Campbell Soup), CSC Brands LP (CSC
Brands), Campbell Soup Supply Company LLC (CSSC), and Campbell Sales Company
(Campbell Sales) (collectively Plaintiffs or Campbell), by and through their undersigned
counsel, hereby bring this Verified Amended Complaint (Amended Complaint) against the
Defendants. In support thereof, Plaintiffs state as follows:
NATURE OF THE CASE
1. For more than 145 years, Campbell has provided consumers with soups and other
foods, including beverage and sauce products. Campbell has invested many millions of dollars
in developing and protecting its reputation as a trusted source of these products. Campbells
famous red and white soup can label, including the script trademark, its V8 line of beverage
Case 1:14-cv-00608-WKW-TFM Document 4 Filed 07/11/14 Page 1 of 27
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products, its Prego Italian sauce products, its Swanson broth and stock products, and its
SpaghettiOs branded products have become known throughout the world as symbols of
Campbells reputation. Trademarks and trade dress associated with these brands have acquired
enormous goodwill in the United States and worldwide, and trademarks associated with these
products are also registered with the United States Patent and Trademark Office.
2. As part of its quality control process, Campbell at times deems certain products at
its production facilities unfit for sale or distribution to consumers (the Unsalable Campbell
Products). Products can be deemed as Unsalable Campbell Products for a multitude of reasons
including, inter alia, expiration of the product quality date or damage to the product containers.
Unsalable Campbell Products are tagged for destruction, and Campbell makes arrangements with
third party entities for such destruction.
3. Defendant Midwest Processing, LLC, was responsible for the ultimate destruction
of some Unsalable Campbell Products. Those Unsalable Campbell Products were to be
delivered to Midwest Processing, LLCs Burbank, South Dakota facility for destruction and/or
recycling in the form of food for farm animals. Remarkably, instead of destroying or recycling
the Unsalable Campbell Products for consumption by farm animals, Midwest Processing, LLC
and Dexter Jorgensen, in concert with Golden View Logistics, Inc., Tate Grocery, Inc., and
Richard Tate, diverted the Unsalable Campbell Products to Hartford, Alabama, where the
Unsalable Campbell Products were eventually sold to consumers. In furtherance of this scheme,
and in an effort to conceal the scheme from Campbell, Midwest Processing, LLC, with the
complicity of all defendants, caused false Certificate[s] of Disposal to be delivered to
Campbell.
4. Specifically, Tate Grocery, Inc., through its agents, principals, and employees
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(including, but not limited to Richard Tate), purchased the Unsalable Campbell Products from
Midwest Processing, LLC and knowingly sold and continues to sell Unsalable Campbell
Products to customers of Tate Grocery, Inc. Unsalable Campbell Products diverted under the
defendants scheme and sold by Tate Grocery, Inc. include Campbells branded-soup products,
as well as V8, Prego, Swanson, and SpaghettiOs branded products. Defendants actively
concealed this scheme from Campbell.
5. Defendants diversion scheme effects an egregious, unauthorized distribution
and/or sale of consumer food products, dilutes Campbells valuable trademark and trade dress
rights, unfairly trades upon the public recognition of Campbells trademarks and trade dress, may
lead others to conclude that they may engage in similar conduct with impunity, constitutes unfair
competition, and confuses purchasers into concluding that the items were authorized for
distribution and/or sale by Campbell and/or sold under Campbells direction.
6. This Amended Complaint seeks injunctive and monetary relief against the
Defendants who have profited and participated in such illegal, willful, and deceptive activity.
PARTIES
7. Plaintiff Campbell Soup Company is incorporated under the laws of the State of
New Jersey, with its principal place of business at 1 Campbell Place, Camden, New Jersey
08103-1799.
8. Plaintiff CSC Brands LP is a Delaware Limited Partnership having a place of
business at 1 Campbell Place, Camden, New Jersey 08103-1799. CSC Brands is the owner of
the trademark registrations for the trademarks at issue in this case and is licensor to its affiliate
company, Campbell Soup.
9. Plaintiff Campbell Soup Supply Company LLC is a Delaware limited liability
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company, with its principal place of business at 1 Campbell Place, Camden, New Jersey 08103-
1799.
10. Plaintiff Campbell Sales Company is incorporated under the laws of the State of
New Jersey, with its principal place of business at 1 Campbell Place, Camden, New Jersey
08103-1799.
11. Midwest Processing, LLC (Midwest) is a South Dakota limited liability
company, with its principal place of business at 47033 Burbank Road, Burbank, South Dakota
57010. Midwest maintains or otherwise uses a warehouse in Hartford, Alabama.
12. Upon information and belief, Defendant Dexter Jorgensen (Jorgensen) is a
resident of South Dakota with offices at 47033 Burbank Road, Burbank, South Dakota 57010,
and is a principal, member, and/or manager of Midwest. Jorgenson is the alter-ego of Midwest.
13. Defendant Golden View Logistics, Inc. (Golden View) is incorporated under
the laws of South Dakota, with its principal place of business located at 3285 477
th
Street, Elk
Point, South Dakota 57025-6804.
14. Defendant Tate Grocery, Inc. (Tate Grocery) is incorporated under the laws of
Alabama, with its principal place of business located at 300 East Mill Street, Hartford, Alabama
36344.
15. Upon information and belief, Defendant Richard Tate (Tate) is a resident of
Alabama with offices at 300 East Mill Street, Hartford, Alabama 36344 and is a principal,
manager, officer and/or director of Tate Grocery. Tate is the alter-ego of Tate Grocery.
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JURISDICTION AND VENUE
16. This Court has original jurisdiction over the instant action pursuant to 28 U.S.C.
1331 and 1338, with reference to 15 U.S.C. 1125(a), 15 U.S.C. 1114(1), and 15 U.S.C.
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All Defendants collectively are referred to herein as Defendants.
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1125(c). This Court has supplemental jurisdiction over plaintiffs common-law claims pursuant
to 28 U.S.C. 1367(a).
17. Personal jurisdiction exists over each respective Defendant because, through each
Defendants conduct and participation in the scheme to divert Unsalable Campbell Products to
Alabama for sale to consumers as set forth in detail below, each such Defendant has engaged in
substantial activities within the State of Alabama and within the Middle District of Alabama.
Moreover, as a result of this diversion scheme, each Defendant has established sufficient
minimum contacts with the State of Alabama to satisfy the requirements of Due Process.
Additionally, each respective Defendants intentional torts targeted Campbell in Alabama.
18. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391(b)(2) or,
alternatively, 28 U.S.C. 1391(b)(3).
GENERAL ALLEGATIONS
A. Campbell Products and Property Rights
19. Campbell, through its affiliates, is the worlds leading manufacturer of soup.
Campbell Soup has built a large and profitable business as a result of the high quality of its soup
products.
20. Campbell has invested many millions of dollars over decades in developing and
protecting its reputation as a trusted source of these products.
21. Since at least as early as 1898, Campbell has used, and to this day continues to
use, a number of distinctive and nonfunctional trade dresses, including the distinctive and
nonfunctional trade dress of Campbells famous soup and related products.
22. In the case of the Icon Campbell Trade Dress, the border of the red and white
portions of the label is a straight line. This Icon Campbell Trade Dress is currently in use and
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has been in use since 1898. While the specific execution of the Icon Campbell Trade Dress has
evolved and been modernized over the years, from the time of its adoption in the late 1800s, it
has consistently included prominent use of a two-color layout, primarily red and white, in
separate, horizontally articulated sections of the label and text, including a distinctive upper case
C as the first letter of the brand name in the distinctive Campbell Soup script font in the upper
portion of the can. An image of the Icon Campbell Trade Dress is attached hereto in Exhibit A.
23. In the case of the Campbell Wave Trade Dress, such dress incorporates a gold-
bordered wave element to horizontally separate the articulated red and white sections of the
label. The Campbell Wave Trade Dress has been in use since June 2010. An image of the
Campbell Wave Trade Dress is attached hereto in Exhibit A.
24. For the V8 Trade Dress, while the specific execution of the V8 Trade Dress has
evolved and modernized over the years, from the time of its adoption in the early 1930s, it has
consistently included a distinctive uppercase letter V adjacent to the numeral 8 within a
circular logo that has a green border trim. Further, this circular logo is encompassed within a
label bearing pictures of the ingredients comprising the beverage. An image of the V8 Campbell
Trade Dress is attached hereto in Exhibit A.
25. For the Prego Trade Dress, while the specific execution of the Prego Trade
Dress has evolved and modernized over the years, from the time of its adoption in the early
1980s, it has consistently included the phrase Prego in black letters and with the P
capitalized. The phrase is consistently placed against a light-colored background. An image of
the Prego Trade Dress is attached hereto in Exhibit A.
26. For the Swanson Trade Dress, while the specific execution of the Swanson
Trade Dress has evolved and modernized over the years, from the time of its adoption, it has
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included a red uppercase letter S superimposed in the middle of the S by a cylindrically-
shaped logo with red border trim that has rounded ends and is oriented with the right end slightly
higher than the left end. The phrase SWANSON, in red uppercase letters, has consistently
appeared inside this trade dress. An image of the Swanson Trade Dress is attached hereto in
Exhibit A.
27. For the SpaghettiOs Trade Dress, while the specific execution of the
SpaghettiOs Trade Dress has evolved and modernized over the years, from the time of its
adoption in the mid 1960s, it has consistently included the phrase SPAGHETTIOS in all
capital letters in black font with a two-tone yellow border trim that is darker on the periphery of
the border. The O in the phrase is the sole exception, as it appears in a yellow font that is
larger than the other letters. More specifically, the O resembles the distinct circular noodle
found in the product. An image of the SpaghettiOs Trade Dress is attached hereto in Exhibit A.
28. Unless otherwise apparent from the context, the Icon Campbell Trade Dress,
Campbell Wave Trade Dress, V8 Trade Dress, Prego Trade Dress, Swanson Trade Dress, and
SpaghettiOs Trade Dress shall be collectively referred to herein as the Campbell Trade Dress.
29. In addition to the rights that exist by virtue of the Campbell Trade Dress, CSC
Brands obtained Federal Trademark Registrations relating to the Campbells, V8, Prego,
Swanson, and SpaghettiOs brands. Copies of relevant trademark registrations are attached hereto
as Exhibit B, and are collectively referred to herein as the Campbell Trademarks.
30. The Campbell Trade Dress and Campbell Trademarks are famous throughout the
world as symbols of Campbells reputation and the quality of its goods, and have garnered
expansive goodwill. Campbell has expended an enormous amount of resources over decades in
promoting its goods in connection with the Campbell Trade Dress and Campbell Trademarks.
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31. The Campbell Trade Dress and Campbell Trademarks, when used in connection
with Campbell products, are entitled to immediate and strong protection against unfair
competition, infringement, dilution, and injury.
B. Defendants Diversion Scheme
32. To protect public health and Campbells reputation associated with its products
and the Campbell Trade Dress and Campbell Trademarks, Campbell expends and continues to
expend substantial resources ensuring the quality of its products sold to consumers.
33. Part of this quality control process includes Campbells identification of
Unsalable Campbell Productsproducts in its manufacturing facilities that do not meet
Campbell standards for distribution and sales to the public. Products can be deemed Unsalable
Campbell Products with regard to Campbell standards for a multitude of reasons including, inter
alia, expiration of the product quality date or damage to the product containers. Upon
identification of such products, Campbell makes arrangements with third party entities for
destruction of the Unsalable Campbell Products.
34. Campbell made arrangements with a non-party entity to dispose of a portion of
Campbells Unsalable Campbell Products. That entity in turn enlisted Defendant Midwest to
destroy those Unsalable Campbell Products, or otherwise to recycle the Unsalable Campbell
Products for consumption by farm animals. These Unsalable Campbell Products were to be
shipped to Midwests Burbank, South Dakota facility for destruction or recycling for
consumption by farm animals.
35. However, unknown to Campbell, and without authorization from Campbell,
Defendants Midwest, Jorgensen, Golden View, Tate Grocery, and Tate, all acting in concert,
negligently, wilfully, and/or intentionally arranged for the Unsalable Campbell Products to be
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diverted to Hartford, Alabama for eventual sale to consumers. Defendants were aware that the
Unsalable Campbell Products were designated for destruction and did not meet the quality
standards established by Campbell.
36. In furtherance of the diversion scheme, and in an effort to conceal the diversion
scheme from Campbell, Midwest, with the complicity of Defendants, caused false Certificate[s]
of Disposal to be delivered to Campbell, or otherwise was aware that the Certificates of
Disposal would be delivered to Campbell. That is, Midwest, acting individually, in concert with
the other Defendants, and as an agent of the other Defendants pursuant to the diversion scheme,
represented to Campbell that the Unsalable Campbell Products had been destroyed or recycled
when, in reality, the Unsalable Campbell Products were being diverted to Hartford, Alabama for
eventual sale to consumers.
37. Defendant Midwest maintains or otherwise uses a warehouse in Hartford,
Alabama. Unsalable Campbell Products were diverted to this warehouse by Midwest, and
potentially other locations unknown to Campbell at present, in concert with the other
Defendants.
38. Eventually, the Unsalable Campbell Products were transported to Tate Grocery,
also in Hartford, Alabama, and potentially other locations unknown to Campbell at present,
where they are available for saleand were soldto consumers. Tate Grocery, through its
agents, principals, and employees (including, but not limited to Richard Tate), purchased or
otherwise acquired the Unsalable Campbell Products from Midwest, and knowingly and
intentionally sold Unsalable Campbell Products to customers of Tate Grocery. Such Unsalable
Campbell Products include Campbell Campbells soup products, as well as Campbells V8,
Prego, Swanson, and SpaghettiOs branded products. Photographs of some of the Unsalable
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Campbell Products purchased at Tate Grocery on April 28, 2014 are attached hereto as Exhibit
C.
39. Campbell did not authorize Defendants to sell Unsalable Campbell Products.
40. Defendants acted in concert for the unlawful sale and distribution of the Unsalable
Campbell Products in contravention of Campbells rights. Each Defendant acted as the agent of
each other Defendant and is vicariously liable for the actions of each other Defendant.
41. This diversion scheme was actively and intentionally concealed from Campbell.
CSSC first discovered the scheme in mid-April 2014 through a shipping document generated by
Defendants to further their diversion scheme (the Blind Shipment Document). The Blind
Shipment Document, which was to be concealed from Campbell pursuant to the diversion
scheme, was inadvertently acquired by a CSSC employee. The Blind Shipping Document
indicated that a truckload of Unsalable Campbell Products, which were to be shipped to
Burbank, South Dakota, instead were being diverted to Midwests warehouse in Hartford,
Alabama. Remarkably, the Blind Shipping Document indicates that the ultimate destination of
the Unsalable Campbell Products was being actively concealed from Campbell. The driver of
the truck who was responsible for delivering that particular load of Unsalable Campbell Product
to Midwests warehouse in Hartford, Alabama further explained to a CSSC employee that he
was familiar with the destination in Alabama, and that he had recently transported other loads of
Campbell productsbelieved to be Unsalable Campbell Productsto this location. Defendant
Golden View is listed as the billing party on the Blind Shipment Document. Campbell quickly
and thoroughly investigated the matter, uncovering the scheme set forth herein.
42. By way of one example only, Campbell has determined that a 14.5 oz can of
unsalable Campbells Beef Gravy purchased from Tates Grocery on April 28, 2014 was illegally
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diverted by the Defendants. By way of background, on or about August 14, 2012, Campbell
declared thousands of cases of Campbells Beef Gravy produced on that date from a single
Campbell facility, which included the particular can at issue, to be Unsalable Campbell Products
(defined herein as the Unsalable Beef Gravy Products, a subcategory of Unsalable Campbell
Products). On or about August 28, 2013, Campbell had two truckloads of the Unsalable Beef
Gravy Products, packed in cases, picked up for transportation to Defendant Midwests Burbank,
South Dakota facility for disposal. Defendant Midwest thereafter represented to Campbell
under penalties of perjury, in two separate written Certificates of Disposal, one for each
truckload, that the thousands of cases of Unsalable Beef Gravy Products all ha[d] been
successfully recycled on or before 10-16-13. The Certificates of Disposal, which are attached
hereto collectively as Exhibit D, each indicate that Defendant Golden View delivered the
product. However, based on the April 28, 2014 purchase from Tates Grocery noted above,
Midwest clearly did not recycle all such Unsalable Beef Gravy Products as it had represented
six months earlier. Instead, all or at least some of the Unsalable Beef Gravy Products were
diverted to Hartford, Alabama for sale to consumers. In fact, upon information and belief,
additional paperwork submitted to Campbell together with Defendant Midwests Certificates of
Disposal bears the signature of an employee or agent of Defendant Tates Grocery.
43. Moreover, after Campbell uncovered Defendants diversion scheme, Campbells
investigation into the scheme revealed for the first time that Defendants Jorgensen, Richard Tate,
and Tate Grocery, as well as entities with which Jorgensen allegedly was previously affiliated
Jorgensen Farms, Inc. and Food Waste Recycling Systems, were parties to a lawsuit filed by
Energy Brands, Inc. d/b/a Glaceau (the Glaceau Lawsuit)
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in which Glaceau alleged a
2
The lawsuit was styled Energy Brands Inc. d/b/a Glaceau v. Jorgensen et al., No. 09-CV-591A (W.D.N.Y. June
25, 2011).
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diversion scheme strikingly similar to the scheme at hand. Additionally, Ben Baldwin, who,
upon information and belief, is a principal or affiliate of Defendant Golden View, was named as
a defendant in the Glaceau Lawsuit based on his alleged affiliation with Jorgensen Farms, Inc.
In the Glaceau Lawsuit, which ultimately settled on undisclosed terms, Glaceau alleged that the
defendants in that case engaged in a diversion scheme through which unsalable Glaceau
vitaminwater product, which was to be destroyed or recycled, was diverted to Tate Grocery,
among other entities, for eventual sales to consumers. In fact, Defendant Jorgensen admitted
under oath in the Glaceau Lawsuit that he picked up the vitaminwater from Glaceau and sold it
on the secondary market to Tate Grocery of Hartford, Alabama. Glaceau further alleged, as in
this case, that Jorgensen submitted false certificates of destruction to Glaceau. Apparently
undeterred by the Glaceau Lawsuit, Defendants targeted Campbell through virtually the same
scheme as they allegedly employed against Glaceau.
44. Unless Defendants are enjoined from the unauthorized distribution and sales of
Unsalable Campbell Products, consumers and others familiar with Campbell Products, Campbell
Trade Dress, and Campbell Trademarks will believe that the Unsalable Campbell Products
Defendants have placed in commerce are authorized by Campbell, and that the products meet the
quality standards of Campbell and the Campbell Trade Dress and Campbell Trademarks, when in
fact such products do not meet the quality standards of the Campbell Trade Dress and Campbell
Trademarks. This unauthorized use of the Campbell Trade Dress and Campbell Trademarks can
seriously injure the reputation that Campbell has established for its goods and resulting goodwill,
which will result in a loss of sales and damage to Campbell. These injuries suffered by Campbell
due to Defendants conduct cannot be adequately compensated by money damages; therefore,
Campbell has no adequate remedy at law and has suffered irreparable harm.
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45. Defendants have engaged in serious negligent, willful, and/or intentional conduct
involving the unauthorized use, distribution, and sales of Unsalable Campbell Products and the
unauthorized use of Campbell property rights. Defendants diversion scheme effects an
egregious, unauthorized distribution and/or sale of consumer food products, dilutes the Campbell
Trademarks and Campbell Trade Dress, unfairly trades upon the public recognition of the
famous Campbell Trade Dress and Campbell Trademarks, may lead others to conclude that they
may engage in similar conduct with impunity, constitutes unfair competition, and confuses
purchasers into concluding that the Unsalable Campbell Products were authorized for
distribution and/or sale by Campbell and/or sold under Campbells direction.
COUNT I
All Defendants
False Designation of Origin and False or Misleading Description or Representation of Fact
15 U.S.C. 1125(a)
46. Plaintiffs reallege and incorporate by reference as if fully set forth herein the
allegations contained in paragraphs 1 through 45 above.
47. Defendants, either by their direct sale of Unsalable Campbell Products, by their
control of one or more Defendants, or by their participation in the scheme to sell Unsalable
Campbell Products unlawfully, are directly, contributorily and/or vicariously liable for the acts
complained of herein.
48. Defendants unauthorized sale of Unsalable Campbell Products and use of the
Campbell Trade Dress and Campbell Trademarks is and was without authorization by Campbell.
Such use constitutes a false designation of origin and a false or misleading description or
representation of fact, which is likely to cause confusion, mistake, or deception, and constitutes
unfair competition.
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49. Defendants have used the Campbell Trade Dress and Campbell Trademarks in a
manner that is likely to cause the public to believe that the Defendants are authorized resellers of
Campbell products, and/or that the Defendants are otherwise sponsored or approved by, or
affiliated with, Campbell, also constituting unfair competition.
50. Defendants actions have been willful, intentional, and with full knowledge of the
false designation of origin and false or misleading description or representation of fact.
51. Defendants actions constitute a violation 15 U.S.C. 1125(a)(1).
52. Plaintiffs have suffered and will suffer great and irreparable injury as a result of
Defendants conduct.
53. Plaintiffs have suffered damage as a result of Defendants actions in an amount to
be determined at trial.
COUNT II
All Defendants
Trademark Infringement
15 U.S.C. 1114(1)
56. Defendants use of the Campbell Trademarks is and was without authorization by
Campbell. Such use is likely to cause confusion, mistake or deception, and, accordingly,
constitutes trademark infringement.
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57. Defendants have used the Campbell Trademarks in a manner that is likely to
cause the public to believe that the Defendants are authorized resellers of Campbell products,
and/or that the Defendants are otherwise sponsored or approved by, or affiliated with, Campbell,
or that the product designated for destruction met the quality standards associated with the
Campbell Trademarks.
58. Defendants actions have been intentional, willful, and with full knowledge of the
trademark infringement.
59. Defendants actions constitute a violation of 15 U.S.C. 1114(1).
Defendants conduct.
COUNT III
All Defendants
False Advertising Under the Lanham Act 43(A)
15 U.S.C. 1125(a)
64. Upon information and belief, Defendants made statements and representations to
consumers and others that Defendants were and/or are affiliated with, or sponsored or approved
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by Campbell and/or that Defendants are authorized resellers of Campbell products. Such
statements and representations were untrue, deceptive, and misleading.
65. Upon information and belief, such statements and representations were made by
Defendants in interstate commerce, and/or otherwise appeared in commercial advertising or
promotion by Defendants.
66. Defendants made such statements and misrepresentations in connection with
representations regarding products, services, and/or commercial activities offered by Defendants
and/or the products, services, and/or commercial activities of Plaintiffs.
67. Defendants actions have been willful, intentional, and with full knowledge of the
falsity of their advertisements.
68. Defendants actions constitute a violation of 15 U.S.C. 1125(a).
such false, misleading, and deceptive statements and representations by Defendants.
COUNT IV
All Defendants
Dilution
15 U.S.C. 1125(c)
72. Campbell has expended millions of dollars extensively and continuously
promoting and using the Campbell Trade Dress and Campbell Trademarks both in the United
States and throughout the world. The Campbell Trade Dress and Campbell Trademarks have
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become famous and well-known symbols of Campbells goods and services throughout the
United States and the world.
73. Defendants are making commercial use of the Campbell Trade Dress and
Campbell Trademarks in a manner that dilutes and is likely to tarnish and degrade the positive
associations and prestigious connotations of the Campbell Trade Dress and Campbell
Trademarks, and otherwise lessening the capacity of the Campbell Trade Dress and Campbell
Trademarks to identify and distinguish goods and services.
74. Defendants actions demonstrate an intentional, willful, and malicious intent to
trade on the goodwill associated with the Campbell Trade Dress and Campbell Trademarks or to
cause dilution of the Campbell Trade Dress and Campbell Trademarks, to the great and
irreparable injury of Campbells brands.
75. Defendants actions constitute a violation of 15 U.S.C. 1125(c).
76. Plaintiffs have suffered and will suffer damage as a result of Defendants actions
in an amount to be determined at trial.
COUNT V
All Defendants
Dilution
Ala. Code 8-12-17
78. Campbell has expended millions of dollars extensively and continuously
promoting and using the Campbell Trade Dress and Campbell Trademarks in the State of
Alabama, the United States, and throughout the world. The Campbell Trade Dress and Campbell
Trademarks have become famous and well-known symbols of Campbells goods and services
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throughout the United States, the world, and the State of Alabama.
79. Defendants are making commercial use of the Campbell Trade Dress and
Campbell Trademarks in a manner that dilutes and is likely to tarnish and degrade the positive
associations and prestigious connotations of the Campbell Trade Dress and Campbell
Trademarks, and otherwise lessening the capacity of the Campbell Trade Dress and Campbell
Trademarks to identify and distinguish goods and services.
80. Defendants actions demonstrate an intentional, willful, and malicious intent to
trade on the goodwill associated with the Campbell Trade Dress and Campbell Trademarks or to
cause dilution of the Campbell Trade Dress and Campbell Trademarks, to the great and
irreparable injury of the Plaintiffs.
81. Defendants actions constitute a violation Ala. Code 8-12-17.
COUNT VI
All Defendants
Common-Law Infringement
85. Defendants acts constitute common-law infringement.
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COUNT VII
All Defendants
Fraud
89. By way of one example only, Campbell has determined that a 14.5 oz can of
unsalable Campbells Beef Gravy purchased from Tates Grocery on April 28, 2014 was illegally
diverted by the Defendants. By way of background, on or about August 14, 2012, Campbell
declared thousands of cases of Campbells Beef Gravy produced on that date from a single
Campbell facility, which included the particular can at issue, to be Unsalable Campbell Products.
On or about August 28, 2013, Campbell had two truckloads of the Unsalable Beef Gravy
Products, packed in cases, picked up for transportation to Defendant Midwests Burbank, South
Dakota facility for disposal. Defendant Midwest thereafter represented to Campbell under
penalties of perjury, in two separate written Certificates of Disposal, one for each truckload,
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that the thousands of cases of Unsalable Beef Gravy Products all ha[d] been successfully
recycled on or before 10-16-13. The Certificates of Disposal, which are attached hereto
collectively as Exhibit D, each indicate that Defendant Golden View delivered the product.
However, based on the April 28, 2014 purchase from Tates Grocery noted above, Midwest
clearly did not recycle all such Unsalable Beef Gravy Products as it had represented six
months earlier. Instead, all or at least some of the Unsalable Beef Gravy Products were diverted
to Hartford, Alabama for sale to consumers. In fact, upon information and belief, additional
paperwork submitted to Campbell together with Defendant Midwests Certificates of Disposal
bears the signature of an employee or agent of Defendant Tates Grocery.
90. Other Certificates of Disposal, believed to be fraudulent, were transmitted to
Campbell from in or about 2009 to 2014.
91. The misrepresentations made in the Certificates of Disposal were material to
Campbell in that had Campbell known that the Unsalable Campbell Products were being
diverted to consumers, Campbell would have not entrusted the Unsalable Campbell Products to
be handled by any Defendant.
92. Campbell reasonably relied upon the representation in the Certificates of Disposal
that the Unsalable Campbell Products had been destroyed or otherwise recycled.
93. Because Midwest was acting in concert with the other Defendants and as an agent
of each other Defendant in furtherance of the diversion scheme, all Defendants are vicariously
liable for Midwests fraudulent misrepresentations.
94. Defendants misrepresentations proximately caused Campbell to suffer damages
95. Defendants, or a combination of their principals, agents, and affiliates, have
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engaged in a pattern and practice of fraudulent activity relating to similar diversion schemes
involving unsalable food products, as evidenced, in part, by the allegations in the Glaceau
Lawsuit.
COUNT VIII
All Defendants
Negligence, Gross Negligence, and/or Wantonness
97. Defendants owed a duty to Campbell to ensure that the Unsalable Campbell
Products were destroyed or recycled.
98. Defendants breached this duty by diverting or otherwise allowing the diversion of
the Unsalable Campbell Products to Hartford, Alabama for eventual sale to consumers.
99. Defendants conduct was negligent, or, alternatively, was carried out with
knowledge of the circumstances and with a reckless disregard of the consequences.
100. Defendants breaches of duty proximately caused Campbell to suffer damages in
an amount to be determined at trial.
COUNT IX
All Defendants
Civil Conspiracy
102. Defendants were aware that the Unsalable Campbell Products were designated for
destruction and did not meet the quality standards established by Campbell. Nevertheless,
Defendants Midwest, Jorgensen, Golden View, Tate Grocery, and Tate, all acting in concert and
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pursuant to a common plan, negligently, wilfully, and/or intentionally arranged for the Unsalable
Campbell Products to be diverted to Hartford, Alabama for eventual sale to consumers.
104. Defendants conspiracy proximately caused Plaintiffs to suffer damages in an
amount to be determined at trial.
WHEREFORE, Plaintiffs demand judgment against Defendants, jointly and
severally, and respectfully request:
a. A preliminary and permanent injunction against each Defendant and its owners,
directors, officers, employees, agents, representatives, licensees, and affiliates, enjoining and
restraining the use of the Campbell Trade Dress and Campbell Trademarks or any colorable
imitation thereof, including, but not limited to, the use of the Campbell Trade Dress and
Campbell Trademarks on websites, social media, metatags, in sponsored links, and in advertising
or marketing materials.
b. A preliminary and permanent injunction against each Defendant and its owners,
restraining the unauthorized distribution of Campbell products.
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c. A preliminary and permanent injunction against each Defendant and its owners,
restraining them from representing or creating the impression that they are authorized
distributors or resellers of Campbell products.
d. An accounting and disgorgement of the revenues and profits received by each
Defendant relating to its or his sales using the Campbell Trade Dress and Campbell Trademarks
and/or unauthorized sales of Campbell products.
e. An Order compelling Defendants to recall all Unsalable Campbell Products, at
Defendants expense.
f. An Order compelling Defendants to deliver to Campbell, at Defendants expense,
all materials and goods bearing the Campbell Trade Dress and Campbell Trademarks.
g. An award of monetary damages against each Defendant, jointly and severally, for
the injuries sustained by Campbell as a result of Defendants fraudulent representations, unfair
competition, trademark infringement, false designation of origin and false or misleading
description or representation of fact, false advertising under the Lanham Act, dilution of the
Campbell Trademarks and Campbell Trade Dress, and all other conduct alleged in this Amended
Complaint.
h. An award of treble damages against the Defendants for damages sustained by
Campbell as a result of the Defendants willful trademark infringement, false designation of
origin and false designation of origin and false or misleading description or representation of
fact, false advertising under the Lanham Act, and dilution of the Campbell Trademarks and
Campbell Trade Dress under 15 U.S.C. 1117.
i. Costs and disbursements incurred in the prosecution of this action, including
24
reasonable attorneys fees, as provided under common law and 15 U.S.C. 1117.
j. Statutory damages, punitive damages, and exemplary damages.
k. Such other and further relief as the Court deems just, proper, and appropriate to
protect the rights of Plaintiffs.
DATED: July 11, 2014
____________________________
W. Edward Bailey (9729-Y82W)
Alvin L. (Peck) Fox (FOX005)
Thomas W. Thagard III (THA006)
J. Ethan McDaniel (MCD065)
Attorneys for Campbell Soup
Company, CSC Brands LP,
Campbell Soup Supply Company
LLC, and Campbell Sales Company
OF COUNSEL:
Maynard, Cooper & Gale P.C.
1901 Sixth Avenue North
2400 Regions/Harbert Plaza
Birmingham, AL 35203-2618
205-254-1000
25
CERTIFICATE OF SERVICE
I hereby certify that I have served a copy of the foregoing document by Certified U.S.
Mail on this the 11th day of July, 2014 to the following:
Midwest Processing, LLC
47033 Burbank Road
Burbank, SD 57010
Dexter Jorgensen
47033 Burbank Road
Burbank, SD 57010
Golden View Logistics, Inc.
3285 477
th
Street
Elk Point, SD 57025
Tate Grocery, Inc.
300 East Mill Street
Hartford, AL 36344
Richard Tate
300 East Mill Street
Hartford, AL 36344
__________________________
Of Counsel

Campbell Soup Co v. Midwest Processing - Trademark Unsaleable

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IN THE UNITED STATES DISTRICT COURT FOR

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