Mastronardi Produce Limited, a Canadian greenhouse company marketing produce using the “Sunset” brand, filed an opposition to Driscoll’s Inc.’s trademark application for the “Berry Big” trademark for use with fresh berries before the Trademark Trial and Appeal Board on Tuesday.
The opposer claimed that the Berry Big trademark is similar to phrases that have been used to describe its products, both in its advertising and in various press coverage the company has received. Mastronardi produces the “Wow” brand of strawberries, which specifically includes the “Dreamberry brand, the Pearberry brand, and the Lolliberry Brand.” These have reportedly been sold since 2014 and “have been associated with the words ‘berry’ and ‘big.’”
Mastronardi explained that the applicant intended to use the Berry Big trademark with “fresh and juicy big strawberries,” and has similarities to how the opposer markets its berries. The opposer claimed that the requested trademark was too generic and could impact its use. Additionally, the opposer noted that the application for the trademark filed by Driscoll’s did not contain a disclaimer of exclusive rights for either “Big” or “Berry,” despite how common the words are in use with their products.
The opposer alleged that use of generic terms like “big” and “berry” are “necessary” for it and other third parties to use in advertising. Because the berries from both parties will be sold in similar channels and promoted to a similar group of consumers, this could reportedly cause issues. Mastronardi claimed that the terms Driscoll’s requested in the trademark are “generic and incapable of distinguishing Driscoll’s goods from berry products offered by others,” specifically by Mastronardi.
As grounds for the opposition, Mastronardi cited that the Berry Big trademark would be merely descriptive, generic, lack a secondary meaning, and not function as a trademark. Mastronardi, represented by Dinsmore & Shohl LLP, asked the Trademark Trial and Appeal Board to reject the application.
