060122 Holten Meat Goes After Kroger MarketingJanuary 28, 2006Imagine an ordinary hamburger. What words can be used to describe it? If you're are thinking "thick 'n juicy" or even "thick & juicy," better think again or you could face a lawsuit. Holten Meat Inc., a Sauget distributor of frozen beef patties, recently filed a lawsuit in U.S. District Court in East St. Louis against grocery store chain Kroger for infringing on the trademarked phrase: "thick n juicy." Kroger-brand meat patties bear the slogan: "thick & juicy." Holten trademarked the phrase in connection with hamburgers in 2001 with the U.S. Patent and Trademark Office. "It's a very important issue for consumers," said Chicago lawyer Bob Sacoff, a partner with the firm Pattishall, McAuliffe, Bewbury, Hilliard and Geraldson. "You don't want someone picking up one product off the grocery store shelves thinking they are picking up another. The court must decide whether the phrase "thick & juicy" infringes on the trademark or whether it's merely a descriptive phrase, used to describe burgers, Sacoff said. The problem arises when the packaging and phrasing is meant to confuse consumers -- as Holten alleges in its lawsuit. "(Kroger) ... has palmed its products off to the consuming public as the goods of Holten," the complaint states. "Such acts copy, colorably imitate and appropriate Holten's mark and such use is likely to cause confusion ... as to the source of (Kroger's) meat patties." Kroger operates stores in Nashville, Du Quoin, Mount Vernon and Murphrysboro. Scott Sifton, Holten's lawyer, declined to comment because of the pending litigation. Kroger spokesman Gary Rhodes did not return calls for comment. But what's next for the federal suit? A taste test? "It's possible, but not likely," Sacoff said. "The test will be the packaging." If Kroger's phrase infringed on Holten's trademark, Sacoff said they may be ordered to change the packaging and phrasing and may also have to pay damages. U.S. District Judge Michael Reagan will hear the case, but no date has yet been set.
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