Last week I told the story
– as told through this TTAB opinion
— of Carl Vennitti’
s seven-year tug of war with NestlÃ© (properly “NestlÃ©’s,” I guess — but that’s a lot of punctuation to ask people to put in your name, so sorry guys), maker of Hot Pockets food-type product and owner of the HOT POCKETS trademark. The battle was over Carl’s attempt to use and register the trademark SANDWICH POCKETS. I promised that part 2 would consist of Carl telling his own story, because I believe, as a blogger, in the Freedom Principle.
What is the Freedom Principle?
I, as a blogger, have an obligation to use material submitted to me for free if there’s any rationale way it fits with the editorial and I can thereby get a post out of it.
There is no greater freedom than this.
There’s an extra surprise, because this guest submission comes with its own introduction by another trademark blogger, Benjamin Ashurov, who writes a blog called Trademark Bully. I have added some explanatory links to his introduction to the SANDWICH POCKETS saga, regarding which, you may have noticed if you read this and the prior post carefully, I have actually offered no opinion. I also take no responsibility for any factual claim in this post or this introduction and in fact welcome any opportunity to correct or clarify the record if appropriate. I defer, instead, to the Freedom Principle along with a good-faith belief that the narratives published here are materially correct. I have copy-edited the introduction and Carl’s magnum opus, but very lightly; readers familiar with this blog will see that both guest contributors here are speaking in their own voices.
Cue music, please — first, Benjamin:
After seven years of agonizing litigation, this forum shall allow us to present the over-reaching conducted by one of the world’s largest food companies, foreign owned, and the havoc that they can wreak on a family owned American business, what the results are, and how it affects individual family members who toil at manual labor.
His name is Carl. He owns and operates a food manufacturing company in Warren, Ohio. He makes a great “pocket sandwich,” the term mandated by the USDA Food Safety and Inspection Service, that has found its way into schools throughout the midwest.
Not everyone thinks that he makes an outstanding product. According to a claim by NestlÃ© Prepared Foods, Hand Held Products’ division in Colorado, he made an inferior product! At the onset of the attack he was quite surprised at that published statement, because in fact he used to use a lot of NestlÃ© products in his (he doesn’t use any more). It’s a ridiculous scenario, so you will have to use your own best judgment about the quality issue.
The whole purpose of the “quality” claim, of course, was to suggest that Carl’s use of a trademark claimed by NestlÃ© was harming its reputation. Yet just recently one of NestlÃ©’s Hot Pockets employees was arrested — for war crimes in Bosnia. Inferior products? Higher standards?
Most importantly for purposes of this forum, NestlÃ©’s also claims to have exclusive right to the word POCKET in a trademark. Left un-addressed, the consuming public may have to quit calling those extra pieces of fabric on clothes “pockets,” or NestlÃ©’s may accuse them of infringement, too!
Regardless of these claims, Carl, his family and his company are still supposed to call their food products “pocket sandwiches” by the USDA FSIS definition, and by the former definition in the USPTO’s “Trademark ID Manual.” Today he can.
Here, now, Carl’s story in his own words. You may want to stick something in the microwave — it’s a long one!
I owe this essay to everyone who believed in creating a dream, and helped build his or her own company into the company we almost were. The following is truthful and factual, which makes it hard to dispute unless, alas, you possess, and are willing to spend, untold amounts of good money to destroy dreams and hard labor, credit, business, integrity and family, such as NestlÃ©’s did to me and my family.
Prior to July of 2003, V&V Enterprises, Inc., did business as Mauro Brand Products and been marketing and selling “pocket sandwiches” since coming under inspection by the USDA in 1991. Before coming under Federal Inspection with the USDA, we had marketed and sold our products as “pizza turnovers” since 1981. It was quite a traumatic change at that point, because the USDA did not have a category in which to classify our product. Their category was “Multi-Component Products”, and “Pocket Sandwiches” came under that category. We adjusted our customers to the name changes with quite a bit of explanation, but because we made such a well-accepted product, our customer base soon made the adjustment acceptable. We had slowly evolved into a food company which had enjoyed distribution of its’ Pocket Sandwiches in school food service from New York City to Los Angeles. Our years of financial struggle were over. Our commitment to children and to the disabled Americans, which we employed, and still do, was reaching the highest levels of fruition. Our commitment to those less fortunate was driving our goals. St. Jude Children’s Research Hospital became our ‘friend in need’, along with the ‘Make a Wish’ Foundation. Above and beyond our monetary contributions, Micaela, my wife of 33 years, formed a ‘club’ for making rosaries, and taking any and all donations to our beloved charities, so that more people would feel compelled to help those poor children with nowhere else to turn.
We started our company in a back room at Sorrento’s on Parkman Rd. in Warren, Ohio. Keeping both businesses under one roof was proving to be very difficult so we built a new facility right up the street so the business could grow and flourish. After a few years, our small building was virtually bursting at the seams and we needed to expand the ‘brick and mortar’ to allow for continued growth. With a ‘lease to own’ agreement, we completely renovated a former bowling alley to become a state of the art, USDA inspected food facility, which was eight times our former size, with extra acreage for future expansion. With bona fide contracts in hand, we ordered new manufacturing lines, which would easily triple our daily, single shift output. Everybody was our friend.
With multiple years of successive double-digit growth and profits, our internal team, and acquired minority business associates, felt that the timing was right for a Reverse Merger into an existing Shell; a ‘public offering’ of the company. Lawyers and professionals were hired to properly formulate a new company, which would embody all that we were and all that we could be, and the process was set into motion. As we were reaching the finish line of dreams that can come true, we received a simple letter from Nestle USA; Nestle Prepared Foods Group; Hand Held Products Division, Englewood, Colorado.
In the side pocket
They demanded that we cease and desist our current path or they would sue for Trademark Infringement, Deceptive Trade Practices and Unfair Competition, among other things. We had been making ‘pizza pockets’ since 1991, showing them at trade shows, sometimes next to the ‘Hot Pockets’ brand with no exchange of concerns, but it was now time to get rid of their annoyance. They had told us that they had monitored us since 1998. We made a great product, which was in growing demand, and they needed to maintain market share. It was stated by NestlÃ©’s that we could not afford to defend ourselves and our only option would be to change our name and what we called our product.
This multi billion-dollar company was attacking our less than 1.4 million dollar company. We were making an impact. Making a good product, hard work and dedication had gotten the attention of the world’s largest food company. We thought it was funny. Still being somewhat naive, we didn’t notice that no one else was laughing. Read More…