H.J. Heinz Company Brands LLC and Kraft Heinz Foods Company can now freely use the trademark for their product “Mayochup” after a judgment in their favor in the Eastern District of Louisiana.
Dennis Perry, represented by Tola, Harrigan & Morris, filed the complaint against Heinz in January 2019 alleging the defendants’ use of “Mayochup” was a counterfeit of his registered trademark for “Metchup” calling it “confusingly similar.” Perry received the trademark for “Metchup” in February of 2011, U.S. Reg. No. 3,920,035, and used it for a mixture of ketchup and mayonnaise or ketchup and mustard.
Heinz created Mayochup along with other mixtures of sauces including mayonnaise and barbecue sauce called Mayocue and ketchup and ranch called Kranch. As part of the pre-launch campaign for Mayochup Heinz invited the public to submit proposed names and received a submission for Metchup.
The plaintiff claimed he had manufactured and sold a mayonnaise and ketchup condiment sauce under that name since 2010 and alleges when Heinz started advertising Mayochup consumers were led to the Heinz product when searching online for Perry’s product.
Judge Greg Gerard Guidry also ruled that the plaintiff did not adequately show that there would be consumer confusion between the two products because of the difference between the two names. He also ruled that the plaintiff “abandoned his trademark” by not continuing to use it in commerce.
“Plaintiff has sold approximately thirty-four bottles in total of ‘Metchup,’ which consists of Wal-Mart store brand ketchup mixed in equal parts with either Wal-Mart store brand mayonnaise or Wal-Mart store brand mustard. Plaintiff has sold Metchup only from the reception area of the Star Motel in Louisiana and has not sold Metchup in any store or online,” the Order states. Conversely, Heinz Mayochup has been sold in retail stores around the United States and online.
Heinz was represented by Holland & Knight.
