Prior to 1989, Del Monte Foods — then a subsidiary of RJR Nabisco Inc. — consisted of both a processed foods operation and a fresh division. The fresh fruit operations were sold to Polly Peck International late in 1989 and ultimately became known as Fresh Del Monte Produce Inc. (“Fresh Del Monte”). With the sale, the owners of Fresh Del Monte were granted perpetual, royalty-free rights and license to use the Del Monte brand and marks in connection with the production, manufacture and sale of “fresh fruit, fresh vegetables and fresh produce.” The same agreement provided, with a few exceptions, that Del Monte Foods retained the right to use the Del Monte brand and marks on the sale of any processed food, or goods other than “fresh fruit, fresh vegetables and fresh produce.” The two Del Monte company’s products appeared in different sections of supermarkets — Fresh Del Monte products in the fresh fruits and vegetables sections, with Del Monte Foods products in the canned foods sections — and the distinction seemed clear, fresh versus processed. When a dispute arose over the scope of Fresh Del Monte’s rights, a judge ruled in 1999 that Fresh Del Monte’s exclusive rights included the right to sell fresh-cut fruit.
By the mid 2000’s, Del Monte Foods began selling processed cut-fruit in thin, flexible see-through plastic containers (similar in appearance to those frequently used for fresh fruit) and having these containers placed on refrigerated shelving situated in the fresh produce sections of supermarkets. At that point, Fresh Del Monte sued Del Monte Foods alleging that the type of container + refrigeration + section of the supermarket where the goods were being displayed was, in combination, likely to deceive a not insubstantial proportion of consumers into believing that the products (sold under such names as “Fruit Naturals” and “SunFresh”) contained fresh cut-fruit, not preserved cut-fruit.
Skadden Arps, counsel for Fresh Del Monte, retained Jacoby to design and conduct a survey to determine whether consumers were deceived into believing that DMC’s Fruit Bowl cut-fruit products consisted of fresh (not preserved) fruit. A mall intercept study was conducted that involved testing 600+ respondents. Qualified respondents were brought into a shielded testing facility where they first were shown one of several videos. Approximately one minute in length, each video provided a “from the shopper’s eyes view” of what a shopper would see upon entering a supermarket and walking either to the chilled refrigeration area within the fresh produce section, or to the canned foods aisle of the supermarket. The videos also differed in terms of how they ended, with each zooming in on one of three DMC products being displayed either in the chilled refrigeration area within the fresh produce section, or in the canned foods aisle of the supermarket. When the video ended, either a chilled or room temperature exemplar of the product corresponding to the one shown in the video was placed in front of the respondents who were asked to examine the product as if they were considering whether or not to buy it. After indicating they were done examining the product, each respondent was asked whether the product contained preserved fruit or fresh fruit.
Although there were many other aspects to the study, the principal findings were as follows. After viewing a video showing DMF’s Red Grapefruit Fruit Bowl product displayed in the chilled refrigeration area within the produce section and then being handed a chilled exemplar of this product, 52.4% of the respondents in this condition said they thought this product contained fresh fruit. In contrast, after viewing a video showing the same DMF Red Grapefruit Fruit Bowl product displayed in the canned foods aisle of a supermarket and then being handed a room temperature exemplar of this product, 32.3% of the respondents in this condition said they thought this product contained fresh fruit. The 20% difference (52.4% – 32.3%) represents a substantial level of deception attributable to combined effect of the type of container + refrigeration + section of the supermarket where the goods were being displayed. In finding for plaintiff, the jury agreed.
“This was the most complicated survey I have ever personally worked on in a Lanham Act deceptive advertising case. Jack did a terrific job designing a credible survey to account for a number of non-verbal stimuli that were at the heart of the dispute. He was also very adept at explaining the research to the jury.” – Kenneth A. Plevan, Partner, Skadden Arps, Slate, Meagher & Flom, LLP
Fresh Del Monte Produce, Inc. v. Del Monte Foods Company and Del Monte Corporation, U.S.D.C. SDNY, Case # 08-Cv-8718 (SHS).