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Ralcorp ups the ante in row with PepsiCo over Frito-Lay Tostitos Scoops

By Elaine Watson , 16-Feb-2012

Branded snacks giant Frito-Lay and store-brand specialist Ralcorp have become embroiled in a legal battle over corn chips designed to scoop up salsa and dips.

Last week, Frito-Lay North America (a subsidiary of PepsiCo) sued Ralcorp and its Medallion Foods subsidiary for trademark and patent infringement.

Frito-Lay: Store brand product has ‘nearly identical’ product shape to Tostitos Scoops!

In the suit, filed in federal court in Sherman, Texas, Frito-Lay claimed that Medallion’s new BOWLZ corn chips packaged for Walmart infringed patents and trademarks protecting Frito-Lay’s Tostitos Scoops!

In a letter sent to Medallion before Frito-Lay filed suit, Baker Botts LLP partner Timothy Durst wrote that his client (Frito-Lay) had been selling Tostitos Scoops since 2001 and had secured a US trademark registration (#2,766,278) for the “famous and recognizable” design in 2003.

In the letter, which was filed with court papers from Medallion last week, he added: “Obviously, your company’s use of a nearly identical product shape on identical goods is likely to cause confusion among consumers…In addition the package design for your product utilizes an architecture that is confusingly similar to our client’s Tostitos Scoops packaging…

“Further, we have reason to believe that the manufacturing of your chips may violate Frito-Lay’s patent rights.”

Ralcorp/Medallion: ‘278 registration is invalid

However, in a complaint for declaratory judgment filed in a federal court in Arkansas (where Medallion Foods is based), Ralcorp insisted that it did not infringe any of the patents or registrations at issue.

It also argued that the scoop design mark in the disputed ‘278 registration is “functional and therefore invalid”, adding that the ‘278 registration “should be cancelled from the register by the US Patent and Trademark Office”.

No likelihood of confusion

‘It added: “Frito-Lay has abandoned the scoop design mark because Frito-Lay is not now and has not been using the scoop design mark… for at least the past three years.”

“Plaintiffs have not and do not infringe the ‘278 registration because the mark and the registration is functional and has been abandoned. Alternatively, there is no likelihood of confusion between the registered bowl-shaped configuration mark and the plaintiffs’ BOWLZ product.”

Newport, Arkansas-based Medallion Foods is a leading manufacturer of store brand corn-based snack foods including tortilla chips, corn chips and extruded corn meal products.

Ralcorp acquired the business in 2005.

PepsiCo was unavailable for comment as this article went to press.

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