“There are not very many shapes that a sandwich can be made into,” Washelesky writes, adding that for Smucker's to claim a round shape as exclusively doesn’t leave much room for competition. “Further, there is an aesthetic aspect to a round sandwich. Most plates are round, and a round sandwich on a round plate is more aesthetically pleasing than a square sandwich on a round plate.
“It is functionally necessary to show a bite taken out of a food product which consists of an outside and an inside, so that consumers can view the inside of the product,” Washelesky writes. “Since the product is meant to be bitten into with teeth, it is natural to show a bite mark instead of, say, a cut made by a knife. Showing a bite taken out of a food item meant to be bitten is a common usage and therefore not exclusive to Smucker.
Washelesky concludes her letter by informing Smucker that Gallant is ready to defend his position in the world of round crustless sandwiches. “We trust that Smucker is not willing to see a court declare the Smucker trade dress trademarks invalid, which we are quite confident would be the outcome if Smucker were to press this matter,” Washelesky writes.To confirm, in our cease and desist, we do not reference patents, rather three trademarks we have attained.
For his part, Mohamed hopes that this dispute will be resolved amicably as well, albeit in a different way.
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