Mayo? Or Mayo NOT?

Posted by | November 15, 2014 | Disputes, General | One Comment
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Hellmann’s

“A Brand With Eggs For Brains”

Capture

Hellmann’s, Get Real!

Hellmann’s filed a lawsuit against Just Mayo on Halloween, claiming that Just Mayo’s egg laden label is a poor costume for a product that (proudly) bears no eggs:

Just Mayo ingredients

Legally speaking Hellmann’s may come out of this sunny side up, given that both the dictionary and — more importantly — US federal law state that mayonnaise contains eggs. I don’t know about you, but I’m asking myself who besides Hellmann’s is being harmed by this illegality or is it akin to jay walking on an empty street? Oh wait! There most certainly is someone else who is being harmed by Just Mayo’s sales and that is Hellmann’s co-plaintiff and lesser known best friend forever, Best Foods:

best-foods-mayonnaise-230

Really the best?

No, that’s not a blatant infringement on Hellmann’s trade dress, as I thought when I first encountered the Best Foods brand on a west coast store shelf. Hellmann’s and Best are siblings whose parent company is Unilever!  So really, this is a case about harm to a single company (if it weren’t, it would be a class action lawsuit). Paradoxically, that very same company just launched a campaign proclaiming its commitment to “creating a brighter future” (for everyone but its competitors, apparently). Unilever also prominently promotes its recent TEDx event, trading on the goodwill of the well loved, soulful TED brand.

The crux of Hellman’s beef with Just Mayo is stated succinctly in the 4th paragraph of its complaint:

“On information and belief, Just Mayo already is stealing market share from Hellmann’s.”

If there is a legal path to stopping that, well hell, Hellmann’s is going to take it. Hellmann’s doesn’t seem to care too much about having egg on its face. It cannot undo the damage it has done to itself by launching the Mayonnaise Wars, aka Big Food’s Weird War Over the Meaning of Mayonnaise. As public health attorney Michele Simon documents in her examination of the press’s attitude towards Hellmann’s case, thus far the suit has backfired, big time.

Hellmann’s Mayonnaise has an interesting history to which it now can add seeking a court order forcing Just Mayo to stop making sales of Just Mayo products while this case is pending. In the 14 days since the case started, 17 documents have been filed and one Change.org Petition has grown out of it, thanks to Celebrity Chef, Andrew Zimmern.

Hellmann’s suit also claims that:

The name Just Mayo is literally false because it expressly communicates that Just Mayo
 is mayonnaise, containing the ingredients consumers expect to be found in mayonnaise, when, in fact, it is not.

I would bet that most Hellmann’s mayonnaise consumers don’t know — or care — what’s in there.

Paragraphs 23 and 24 are by far my favorite part of Hellmann’s lawsuit:

23. Hampton Creek’s deception goes beyond falsely claiming taste superiority. Real mayonnaise is used by home and professional chefs alike as an essential ingredient in many recipes, including as an ingredient that both adds flavor to and binds together the ingredients in heated sauces. Because Just Mayo lacks the ingredients of a real mayonnaise, it separates into constituent parts when it is heated and does not bind the ingredients of the sauce together. Consumers expect a product called“mayo” to taste and perform like “mayonnaise.” Just Mayo does neither. By calling itself “mayo” and failing to perform like mayonnaise, Just Mayo deceives consumers and damages the entire product category, which has strived for decades for a consistent definition of “mayonnaise” that fits with consumer expectations.
24. On information and belief, Hampton Creek is seizing market share from Unilever’s Best Foods and Hellmann’s brands of mayonnaise products. As Hampton Creek’s distribution and advertising increases, the irreparable harm to Unilever will continue and worsen. The harm is impossible to quantify because of the difficulty of measuring lost good will and sales.

Hellmann’s seems to be talking out of both sides of its mouth by claiming that Just Mayo is an inferior product from which the public needs protecting and then immediately acknowledging that the very same product must be stopped from “seizing Hellmann’s market share.”

In it’s preliminary injunction motion, Hellmann’s argued that because the Just Mayo name is literally false, no additional evidence of deceptiveness need be provided in order for the court to grant the injunction sought by Hellmann’s. Even though it didn’t have to, Hellmann’s went a step further and took a pre-litigation consumer survey in which about half of those surveyed believed Just Mayo is “real” (egg-based) mayonnaise. Once again, Hellmann’s went from arguing that Just Mayo is harmfully inferior to stating that: “Unilever has already lost sales as a result of Hampton Creek’s deceptive labeling and advertising . . .  more than half of Just Mayo purchasers . . .  switched from the Best Foods® and Hellmann’s® brands.”

A few pages later, Unilever continues, “Consumers deceived into believing Just Mayo is real mayonnaise and who are subsequently disappointed by its failure to perform adequately will falsely believe those sub-standard characteristics are common to mayonnaise generally, including Unilever’s Best Foods® and Hellmann’s® brands.” Right, because most of us give up on an entire product category after having a bad experience with a single manufacturer in that category, or maybe that only happens after consumers switch from a Unilever product to an inferior product. WTF?!?

Though the mainstream media is billing this as a David and Goliath battle, Just Mayo probably is banking on investor Bill Gates to help equalize the playing field.

Personally, I hope Just Mayo quickly changes its name to Just Not Mayo. A name like Just Not Mayo accurately suggests the nature of this product & should not only end this messy, unnecessary food fight, but also should prevent further attacks on this product for false advertising and unfair competition.

About Lara

Lara Pearson is a trademark attorney with Exemplar, where she also serves as the firm's Sustainability Steward. Lara's legal practice focuses on trademark and copyright law, including: intellectual property audits; trademark search & clearance; trademark and copyright registration & maintenance; intellectual property transfers; transactional work; and dispute resolution, including litigation when necessary. Lara primarily represents other social enterprises -- those leveraging their businesses and brands as catalysts for positive social and environmental change. Such businesses engage in CSR (Corporate Social Responsibility) to have a positive "triple bottom line" of people, planet and profit. As Exemplar's Sustainability Steward, Lara works with others in her law firm to measure and reduce the firm's carbon emissions and encourage engagement in social responsibility initiatives, including pro bono legal work and volunteering. Lara is a proud member of the Social Venture Network. Brand Geek is a member of 1% for the Planet and a Certified B Corporation, whose Incline Village office is certified under the regional Keep the Sierra Green program. Exemplar Companies is the most innovative professional services firm in the New Economy. Our unique, diversified expertise spans the disciplines of corporate law, business advisory, and capital/investment banking to better meet the needs of our high-potential customers. We have assembled a comprehensive suite of service to meet the complex issues facing companies in today’s challenging business environment. Our unique, holistic approach ensures the growth and success – and greatly increases the competitive advantage - of our customers. The Exemplar team is comprised of knowledgeable, highly skilled experts in a wide range of industries and disciplines. They work closely with our customers to provide trusted advice, incomparable support, expert guidance and the ultimate competitive advantage as they accelerate their businesses and position themselves to transform industries.

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