EATRIGHT® Moritz (soft, micro differences) Courageous Cookie Content
What's in the name of this cookie product? The "Moritz" mountain (1,800m above sea level; but without "St." [abbrev. saint n. canonized; "canon of ethics" (ref: 435 U.S. 679 (1978), CANON8ABA69 scan relevance with dkt 149 p7] but French side of Building 31, CERN (ref: Sir Tim Berners-Lee created the web in France not Switzerland [1989] ref: The Verge pub 26Jan12). Or is it more indicative of New Zealand's South Island with "60%" being "covered by ranges with peaks over 1,500m" (ref: Encyclopedia of New Zealand), the height of "K2" (8,611m), the wonders of "The ReMARKables" (1,943m) [Mountain View Rd, Queenstown 9371], "Rocky Mountain/…*", memorable mountaineers (Sir Ernest Rutherford, Mark P. Walters) and the mountainous endeavors to protect our encumbered (2:13-cv-02174 dkt 149 p4-6) EATRIGHT® mark. But equally the courageous (a. from cord [GK khorde gut] ref: Ox Dict.) corporeal considerations since "digestion…has the most powerful influence on the mental state of the individual" (ref: Jean Anthelme Brillat Savarin “ The Physiology of Taste” pub. 1825; Food Synergy NZIFST 23Jul20).
Where EATRIGHT® brand (USPTO “incontestable” IC 5, 29 & 30) includes one view-dimensional trademark design “lever” simplicity with NO “assigns”. Applying "multi views or perspectives" (industrial design considerations, Locarno class 32-0 “logos”), the lever would rotate around the “t” axis…a torsion, torque or tension wrench (n. movement that pulls or "tugs"). Since violations of Section 7 of the Clayton Act can include both damages and injunctive relief, including divestiture and definitely NOT Clayton motion or Claytons non-alcoholic cordial (ref: Wiktionary). Where EM ID 001540931 "Frustration-Free", USPTO 77752682 “…twist ties" and USPTO 97147359 admission of "same product [bundling, wasteful] packaging ['advertising' (US cl. 101) ties]". And multiple "assigns" (n. (obs.) appurtenance, design or purpose [SIGN [Emperor has no clothes]] ref: Wiktionary) that ADds gigantic complexity with gut-wrenching twists (ref: 2:13-cv-02174 dkt 26-9 (top 2nd from left photo) but dkt 21 (misstep #1 [5-Step USPTO 77201402, 77201394; Global Animal Partnership (GAP) "IRS" complaint by Center for Consumer Freedom pub. 3May17]; mediator “Molly Richard” 10Mar15 (yet WFMSI breached agreement, 2:13-cv-02174 dkt 90 filed 1-day early (misstep #2)) added to USPTO 77752682 4Feb21), tying (restrictive licensing of intellectual property) and turns (kiva n. underground chamber (ref: Wiktionary); "Distrobot" (USPTO 78451088, 78949756, 78539116)).
What you will find, with this product, is unbleached organic "soft" (Arawa) wheat flours (bleached flour (use of [E]924-6) has "never been demonstrated to be 100 per cent safe…toll [on] nutrients and destroys much of the vitamin E" (ref: Additive Code Breaker pub. Mar86); lower gluten levels of "soft" wheat (ref: PMC7925757)). Yet protein "calculated from nitrogen" ((E1091) flour, wheat, wholemeal soluble/total dietary fiber 8.3%, N=2.2g/100g, folate 71mcg/100g ref: NZ FoodComposition Database (NZFCD)) with Jones factor of 6.25 used irrespective of foodstuff (ref: Converting Nitrogen into Protein by Mariotti et al pub. 14Feb08), Folate/Folic acid (Vitamin B9) "amino acid synthesis" (ref: EFSA ID 2881) and free/bound amino acid (ref: Dietary Protein Quality FAO Expert Consultation pub. Apr11) are factors for consideration. 70% dark chocolate "BUTTONS" with NO "evaporated cane juice", "fractionated palm kernel oil", added "salt" (nb. photo of WFMI labeled product, "clam shell" pack a "rights in discoveries" (2:13-cv-02174 dkt 55-1 id (F) p9)). Grass fed, low lactose, no added salt butter as a source of preformed short chain fatty acid (SCFA 4:0) butyric acid at least 2.5% (ref: NZFCD F1050) with organic a 3-4% possibility. No "preferenced-privileged" entity WFMSI (ref: 2:13-cv-02174 dkt 61) yet a hint of extra cinnamon "bark" (PRAL value -24.5502 ref: USDA) and "Peppermint Bark candy" (ref: 3:18-cv-07548-AGT dkt 125, emphasis added). An excellent source of vitamin K2 (ref: by cream calculation), source of choline and a double dose of vanilla (Vanilla planifolia (orchidaceae) fruit) antiophthalmic (35% sucrose), antiradicular (7 x quercetin from both natural vanillin 13,000ppm to 30,000ppm (daily AI 10mg/kg) and vanillic acid) (ref: USDA Phytochemical…Database); beta-glucosidase (starch and sucrose metabolism; EC 3.2.1.21); 4-coumarate-CoA ligase (lipid metabolism; EC 6.2.1.12) et al (ref: Schomburg et al. BRENDA, ELIXIR core data resource on enzymes (pub. 2021)). And many other "remarkably", dare to be different, "unique value" "quality added" feats.
Where "show product [Prod ID: 2601] online" is a simple box tick c/-the "REMARKABLE absence [scant evidence] of any photos on Whole Foods’ website" (draft, unpublished brief of appellant 29Sep15); "REMARKABLE [emphasis added]…settlement offer to be unreasonable” (email 6Nov14 in context of 2:13-cv-02174 dkt 64-3 p11 redacted). And 2:13-cv-02174-RSM (abbr. 2:13-cv-0274) "or" 3:13-cv-06032 are mnemonics (a. of, designed to aid, the memory [Gk mnemon mindful]) that all legal rights are required for "due process". That herald (n. messenger, forerunner, sign; v.t. signal, proclaim); or¹, n. gold or yellow in heraldry [L aurum gold] (ref: OX Dict 4th ed) with incontestable rights in "gold" (ref: USPTO reg. 3045314) and "yellow" (ref: USPTO reg. 3694692 and 3694693).
Where New Zealand is known as the "Long White Cloud" (ref: Te Ara). cumulus n. form of CLOUD consisting of rounded masses heaped on horizontal base often like range of snow-mountains [L cumulus heap] (ref: OX Dict.) not Cumulus used by WFM to “download signage and design assets…GOLD Coast LOGIN" [emphasis added] (ref: wholefoodsmarketmidwest…Cumulus). Where "gold coast", "Project Goldmine" (ref: 548 F.3d 1028 (2008), coast n. seaboard (the c. is clear, there is no one to observe or interfere) and accumulator n. (esp.) apparatus for storing electricity [CUMULUS] (ref: OX Dict. 4th ed). And 5.7 magnitude quake (v.i. tremble, rock to & fro (of earth, bog, person with or for fear or cold), quaking-grass, tremulous kinds [eg wheat, buckwheat or brank, oats etc]) reminder on 6Oct23 at 5.08am; quaker n. (US) dummy gun in ship or fort]; hamper (n. (naut) necessary but cumbrous part of ship’s equipment (ref: OX Dict. 4th ed)) for wind powered vessels includes "top" upper masts, spars, rigging including Optimists, Lasers, AC75's etc.
“Common” mole scalopus aquaticus or other mole(s)² (n. burrowing mammal…smallness of its eyes to be blind (ref: OX Dict)) species “remain absent” from New Zealand (ref: PMID 36676105 pub. 5Jan23) due to "strict biosecurity controls ensur[ing] fewer pests and diseases" (ref: NZ Story IFRS 3 "government grant"). However, Port Nelson has a distinctive bolder bank (mole³ break water, causeway [L moles mass] ref: OX Dict). Where [1996] 3 NZLR 554 (rival tug business) fundamentally changed “conduct” challenges (ref: Predatory Conduct under Commerce Act 1986 (1998) 28 VUWLR; Misuse of Market Power Guidelines pub. Mar22) ...the third "conduct" case against Port Nelson Ltd (PNL). The preceding "REPEAT offender" [emphasis added] cases were [1992] NZAR 5 (rival stevedoring; coy # 169275, including USA 98006, USA 98033 directors) and [1990] 2 NZLR 662 (rival FORKlift business).
Compare with Steve & Sons (ref: 19-1397 (4th Cir. 2021)) a "door business" and Lfurca pitchfork or furcation [FORK] (ref: Dict) ninth circuit appeal 18-35473 dkt 55 p8 "bifurcation". In 2:13-cv-02174 dkt 149 p7-8 fork (f. out sl., pay up) to "WFMSI" [†††] but "WFMI" involvement in "preferential" due diligence (ref: dkt 149 p6). Where “the word fork was thieves’ slang for finger and ‘forking over’” (ref: Origins of the Phrases We Use Everyday, non fiction book by "A Jack[up]" ie pen name for Graham Willmott). So finger n. [to] have a f. in the pie, take part in a matter (ref: OX Dict. 4th ed) "not controverted by any evidence submitted by WFMI" (dkt 25 p15 ln9). Also "forks_over_knives_", (ref: photo produced by "ERF" 24Feb14 for "RFP" No. 2 instore at WFM San Mateo & Petaluma; presumably extracted from WFMI then used by LeVille in dkt 57-2 p2 bottom LHS blurred DVD. And "forks_over_knives_", Joel Fuhrman, M.D. and 20 redacted lines in email from Meta Platforms Inc on 24Jan23. "Forkish" (in "Vendor Partners" of "WFM" email 30Nov11 incl. Ricardo Martinez (SW SDD)), "Apple Pie…Source: Amazon.com, Inc." (ref: foodbusinessnews.net pub. 14Jan20).
And "finger in the pie", "finger in the cookie [box, carton]" (ref: "finger scoop with chamfered box" (WIPO design database D678052 filed 29Jun11), camfered carton (D678048, 31May11) c/- EATRIGHT® [structural and display] boxes with inside out "original appearance", at the time, for edge standing cookies (ref: local novelty standard) used in first shipments to WFM (Aug04 nb. excluding chamfer) but not the middle or the last shipments. scoop n. gouge-like instrument, (sl.) large profit made quickly, chamfer n. bevel on an edge (concave c., as if gouged) [F (CANT¹, FRACTION)] cant¹ v.t. & i. hold out of level; take, be in, tilted position [Rom. = edge] ref: OX Dict). Instead both WFMI "hands in [GOUGING] the cookie jar" (sl., the act of stealing ref: Wiktionary) yet "REPEATEDLY disparages" [emphasis added] (ref: 2:13-cv-02174 dkt 123)
Interestingly, New Zealand is NOT a participant in the Hague System on Industrial Designs (1999). But "rights in product designs can be protected in two ways: industrial copyright, under the Copyright Act 1994, and design registration, under the Designs Act 1953" (ref: Ben Cain, JAWS pub. 2Jun20). Where "LOOKALIKES [added emphasis] pose a threat (1) revenue squeeze, (2) brand dilution, (3) innovation reduction, (4) packaging change waste…"
■ Locarno Cl. 09-03 (boxes, cases, containers, (preserve) tins or cans); EATRIGHT® buff colored, inner buttons (from mold) potato starch "trays" of select shapes included for in "hibernation" Prod ID: 1615 et al. Leverageable NZ factors "limited presence of major global potato diseases" (ref: the Coriolis Report pub. Jun23) c/- D684456 Molded tray package filed 31May11 [Inventor, Applicant] Bakker et al (San Francisco, CA US), [Assignee] Amazon Technologies, Inc. (Reno, NV US).
■ Locarno Cl. 09-10 (handles for [KIDEATS® cookie] buckets); handle (n. fact that may be taken advantage of (ref: OX Dict.)) c/-D937527 [fly] wheel[ed] cart handle filed 10Apr20 (HALL[ie] llc and "[] Hall" dkt 32-5 p2); ”fringe competition” for individual products within [cart] may not protect consumers who need the whole [cart] from market power” (ref: 548 F 3d 1028, 1043-49 (DC Cir 2008) at p. 1038). [Applicant, Assignee] Amazon Technologies, Inc. (Seattle, WA US)
■ Locarno Cl. 09-07 (closing means and attachments) “Pride and Print Awards Highly Commended (2008)" (2:13-cv-02174 dkt 26 id 2) "Title of Entry: Eatright[®] Cookie Carton” with "original [buff color] appearance", at the time, fiber "box closure flap" in a "tilted position" nuances. See also "fasteners" in 590 U. S. ____ (2020), the non-generic, customer specific packaging proofs sent to "Royce" [3] c/- D707123 filed 13Mar13 ([Inventor] Bakker (San Mateo, CA US) et al; [Applicant, Assignee] Amazon Technologies, Inc. (Reno, NV US)) [†] and 2:13-cv-02174 dkt 27-1 p13 WFMI "self preferencing-privileging" of "2007...fiber [including polyfluoroalkyls (PFAS) ref: Chowhound pub. 2Sep24] packaging" with PFAs limits "putting drinking water under threat" (ref: Tom Perkins, The Guardian pub. 2Oct24)
The “continuing absence of a rapid and effective legal remedy to prevent the rewards from brand investment being misappropriated by imitators [L imitor] means that such action will likely continue, with the upshot that manufacturer and retailer competition may be distorted (tort n. (legal) breach of duty imposed by law whereby some person acquires a right of action for damages (ref: OX Dict 4th ed)) to the detriment of consumer welfare and the public interest” (ref: The Competition Effects of Lookalike Private Label Products by Paul W. Dobson and Li Zhou pub. May14).
Interestingly, the one pack EATRIGHT® Moritz Cookies [c/- 4x75g cookies in "tilted position" non-stack donut trays] were tasted tested and "liked" by "Vice President, Operations & Marketing Coordinator Whole Foods Market Northern Pacific Regional Office" in June 2004, meeting at EmeryVILLE, CA 6Aug04 at 3pm [emery n. coarse corundum [Gk smeris] ref: OX Dict.] c/- LeVILLE. Asked if we "could get these to Vancouver as the current labeling looks to meet Canadian requirements" with that store just about to open, "putting them on...coffee counter...could make good margins on them ie by retailing them at US$ 1.99". And, although US Nutrition labeling work was undertaken at that time, it did not make it onto the "perishables" tables [††] but a relevant remnant [n. leftover (ref: Thesaurus). And "Win a trip to New Zealand" concept (2Dec04 email) not WFMI "preferencing-privileging" of "Win a Trip to Australia!" (13Sep07) where "subscribed using the following email address [was personal email of Declarant "@xtra.co.nz"]" (c/- 2:13-cv-02174 dkt 26 id 13, dkt 26-6 p4 "@hud.gov")
See also WFMI "preferenced-privileged" "SERVING SUGGESTION" included milk with "NO LEFTOVERS" but ~5ml milk in photo (ref: 2:13-cv-02174 dkt 32 id 6, dkt 32-2 p4, 6) and "peanut butter...bulk ["non-perishables" dkt 27-1 p6] grocery" with "Whole Foods Market Inc...CA" (c/- dkt 32 id 5 [not just] “Pacific Northwest” [††] with same WFMI labels also in produce prepaks, org almonds "Dist. by WFM" et al) "preferencing-privileging". But tip toeing round the verge[s] n. border-line or brink…[mixture of L virga wand & L vergo incline] (ref: ed.4 Ox Dict) rather than the guts. This includes, but not limited to, “contractual obligations…executed in Texas and New York” (ref: 2:13-cv-02174 dkt 60 p2-3; but WFMI dkt 149 p4) and… “petitioner did NOT make a good faith effort to determine its TAX [including "all domestic and foreign corporations"] liability after the 2007 amendment”
(ref: State of New York Division of Tax Appeals Determination Whole Foods Market Group, Inc.: Dta No. 826409 (pub. 14Jul16; deficiency 2May13) [added emphasis]). Subject to a "trademark License Agreement [WFMI then WFMSI]…effective September 25, 2000" with intra-company "franchising" rather than reinvesting [thin capitalization] into intangible assets. “Differences between…internally-generated intangible investments [NB. not M&A’s, nuances when product markets include patented goods] and…genuine business performance shortfalls. Standard accounting performance measures…do NOT properly reflect these differences and their implications” (ref: All [lawsuit] Losses Are Not Alike by Baruch Lev et al pub. Nov21)
See also "Washington State’s Consumer Protection Act, RCW 19.86.10 et. seq" (ref: 2:13-cv-02174 dkt 1 id 31; WA v. Amazon "price fixing" under RCW 19.86 complaint 22-2-01281-1 SEA filed 26Jan22). Where “shaming criminals, tax evaders…should be used by small businesses and individuals to punish trademark bullies and deter future trademark bullying” (ref: 2011 Wis. L. Rev. 625 (2011) by Leah Chan Grinvald). So NO "vanilla" coating of "Project Goldcrest" [crest n. (informal) design or logo ref: Wiktionary] with $1.5bn (£1bn) in unpaid taxes liabilities (ref: The Guardian by S. Marks et al pub. 18Feb16). Antitrust and tax law claims…severed from the trademark issues (ref: Cuban Cigar Brands N.V. v. Upmann International, 457 F. Supp. 1090, 1096 (SDNY 1978); in Ninth Circuit Appeal 15-35524 Brief of Appellant p18 p48 and “defendant’s conduct was calculated to trade on plaintiff’s reputation” (ref: footnote 289 in FTC v. 1-800 Contacts, Inc dkt 9732 p93/182).
2nd Cir. Court of Appeals case 22-427 dkt 95-2 "mistakes can let corporate wrongdoers avoid accountability…withheld material information on the prior art…case-by-case basis that a patent DOES confer market power” [emphasis added] and 2:13-cv-02174 dkt 149 p6 "inherently suspect" contracts, agreements, merger reality. The need to look, EYE-ball, sight, observe, discern, notice EATRIGHT with no geographic indicator (ref: 2:13-cv-02174 dkt 16-5; "spot check…different geographic locations…EATRIGHT™ by itself on or in connection with food products" dkt 98 id29, dkt 98-15 p3). Where "Congress neither adopted or rejected…tests…370 US 320" of "division of markets - territorial" (ref: USPTO TTAB # 91202219 dkt 74 “trial brief” (EAT RIGHT America, EAT RIGHT Canada, EAT RIGHT United Kingdom NOR No. 15, 27 and 29, also EAT RIGHT Europe, EAT RIGHT Australia)) or "division of markets - product" (ref: 2:13-cv-02174 dkt 27-1 p6 “perishables” (produce (eg dkt 16-5), bulk, prepared food (salad bars, bakery etc)), "non-perishables” (dkt 32-2)). But "tying arrangements" ("product markets that include patented goods"; critical distribution infrastructure), "refusals to [settle]" et al are more than sufficiently evidenced elsewhere.
The EATRIGHT® Moritz Cookies were also sent out in "Order Number:5947" (ref: USPTO TAAB 92048847 exh 5). And Mr Gilmore “Midwest”; Regional President 2004 (ref: 2:13-cv-02174 dkt 32-5; SEC Form 4 transaction 6/1/2004 but also in 10-K yr end 6Sep04 p7 "relative lack of national brands...unique private label opportunity...private label sales in grocery and nutrition accounted for approximately 14% of total [] sales in those product categories"), "Whole TREATS" USPTO serial # 76614403 (applied for 1Oct04, abandoned 24Mar09) and first samples sent 2Oct07 to "MidWest Region" "Vice President Purchasing & Distribution" but samples still being requested and sent 4Jul08. Hence, the EATRIGHT® Moritz Cookie's recent resurrection including restoration work.
Where the first internet order, on record, sent to the US was
“Order Number:4038
Address1 : Alameda
Zip Code : 94501
State : California
Country : United States
Order placed on 17 Jul 2001 06:02:13 +1200
Comments: Very easy to do...I am looking forward to trying these treats” [1], [2]
treat v.t. & i. Act or behave towards in a specified way, deal with or apply process to, heal, remedy, cure. n. Thing that gives rare pleasure; treatment n. mode of dealing with a person or thing; treaty n. formally signed contract [L tracto handle] (ref: Dictionary, Thesaurus) c/- "international treaty provisions" (2:13-cv-02174 dkt 27-8)
Where "a man of that kidney" is descriptive of "nature or temperament" (ref: Dictionary 4th ed; Oxford Languages) and "spill the beans" used for "secret is out…a brown [bean] meant an objection" (ref: Red Herrings and White Elephants by Albert Jack). "Organic KIDNEY beans" (ref: 2:13-cv-02174 dkt 99 id 23 exhibit J id 3, dkt 99-10 p2 id 3, dkt 99-10 p6) and Judge BROWN writing the opinion of the court (FTC v. Whole Foods Market 548 F.3d 1028 (2008)).
See also 2:13-cv-02174 dkt 99 id 2, id 4 "often requested by Whole Foods customers [including by customers in other regional office areas]".
As a prior consultant to Safeway Inc, under the provisions of agreements negotiated in USPTO TTAB 92049105 (ref: 2:13-cv-02174 dkt 99 id 5), Mr Leville was prohibited from the use of EAT RIGHT, EATRIGHT and EAT-RIGHT. But subsequent to the “Safeway agreements”, Leville-Nutritional Excellence LLC entered into a license agreement with WFM and yet another "self-preferenced, self-privileged" agreement with WFMI involvement. Safeway required, as per the agreements, to take action against Leville-Nutritional Excellence but no action against its prior "consultant" (ref: 2:13-cv-02174 dkt 99 id 8 & 9 ie NOT bona fide [L = in good faith] use) with ERF left carrying the can. And WFMI was required by 548 F.3d 1028 (2008) to certain "conduct" requirements but, again, promises were broken (2:13-cv-02174 dkt 149 p6).
And what's rare (astonish v.t. render speechless astound v.t. overwhelm [L tono thunder]) or unfair about Delaware (symbol: Del.) with corporate "self preferencing, self privileging" via "fiduciary obligation" waivers [4]. Waiver [waif], waif n. drifting in sea, odds & ends [c/- 603 F.2d 263, 276 (2d Cir. 1979) (Judge MULLIGAN et al), 9th Cir. Appeal 18-35473 dkt 26 p20 “mulligan"]; del an operator used in vector ["rA on the bar" ref: Wikipedia] analysis; abbreviation for [Gk] delta (ref: OX languages). For instance, what 'wheel cart handle' tech acquisition involvement by Hallie LLC [Amazon], company number 5409251, 251 Little Falls Drive, Wilmington, Delaware, registered agent "Corporation Service Company" (CSC), incorporated 3Oct’13 origins? Differences but one stakeholder "preferential" type "sell off" similarities to C & S Wholesale Grocers Inc, non-Delaware.
INGREDIENTS: certified organic soft NZ (Arawa) wheat flours (whole-grain, white)^, cert. organic unsalted grass fed butter^ (milk), certified organic raw sugar^, fair trade cert organic chocolate ((cocoa solids 70% min), cocoa liquor, cane sugar^, cocoa butter^, sunflower lecithin, natural vanilla)), cert. organic fresh eggs, cert organic secret spice mix, natural [nothing added] vanilla powder (fiber: soluble+insoluble 15.3g/100g min to 26.3g/100g max (ref: USDA Phytochem…Database)).
Contains: wheat, gluten, milk, eggs
USDA Database for the Choline Content of Selected Foods (release 2, 2008). Recommended Daily Allowance or RDA=500 mg/day
* Wheat flour, whole-grain. (Choline 31.0mg/100g; Betaine 73.0mg/100g) (NDB No. 20080) NB. “betaine content of plants depend[s] on the plant variety and growing conditions; thus more data...needed on such variability”
* Wheat flour, white, all purpose, enriched, bleached (Choline 10.0mg/100g; Betaine 70.0mg/100g) (NDB No. 20080). NB. no data for organic, not enriched or non-bleached
* Baking chocolate (Choline 46mg/100g; Betaine 2.6mg/100g) NB. no data for specifics
* Butter, with salt (Choline 19mg/100g; Betaine 0.3mg/100g). Data n/a for no-added salt
* Egg, whole, raw, fresh (Choline 250mg/100g; Betaine 0.6mg/100g). NB. no data for organic
* Cinnamon (Choline 11.0mg/100g; Betaine 3.9mg/100g)
Choline "contributes to: normal homocysteine metabolism, normal fat metabolism, maintenance of normal liver function" (FSANZ Std. 1.2.7)
Vitamin K Content of DAIRY Products; National Library of Medicine; PubMed ref: PMC5998353 (pub. 1Jun17); "No conflicts of interest" but "USDA Human Nutrition Research Center on Aging at Tufts University…Department of Biology, Tufts University" and "Tufts...licence fee of 2%" LeVille food scoring involvements.
* Cream, heavy, 58.1% water: phylloquinone 2.4µg/100g ± 0.1; menaquinones (MK4, MK9-12) 583.4µg/100g; Total (vitamin K) 587µg/100g ± 27.8 (FoodData Central 11.4µg/100g (PK, MK4))
* Cream, water-lessened by drying, powder (cream, skim milk): data n/a (NZ the "largest global supplier of ingredients used by others" eg possible creamer for ["Allegro Coffee Company, Colorado"; 2:13-cv-02174 dkt 27-2 in eg "...Rocky Mountain/Southwest L.P.*, Texas"], "milk chocolate (…dry whole milk" WFMI or milk solid possibility in '111100134 eating right 100 calorie' (product examples email re: affidavit 9Sep08) Chewy Bars with Yogurt Coating… "[Sugar, Modified Palm Kernel Oil and Palm Oil, Partially Demineralized Whey Powder, Yogurt Powder (Cultured Nonfat Milk), Calcium Carbonate, Soy Lecithin (an Emulsifier), Citric Acid]"
* Cream, water-lessened by churning, (butter): 17.4% water; phylloquinone (PK or vitamin K1) n/a; menaquinones (MK or vitamin K2) n/a or "KO'd" (sl. for kicked out) not "OK" (abbrev. Oklahoma)
* Whey permeate, sweet, dried: data not currently available
* Cottage cheese ("Motion to Compel" 2:13-cv-02174 dkt 64-3 p14): water 78.1%; Total (vitamin K) 52.7µg/100g ± 3.4 (FoodData Central 1.6µg/100g (PK, MK4 excludes MK5-11)) not a "single ingredient" (dkt 7 id 22 p4; "multi-ingredient spinach orzo feta salad" email 4Dec14) with WFMI availing itself of "self preferenced" liability
* Yogurt, Greek, plain, nonfat: (n=10, ?Whole Foods 365 Fat-Free Plain Greek Yogurt "11g sugar per cup"? (ref: 1:14-mc-02588 "intentional destruction", "knowingly concealing" for 16mths)); water 85.1%; Total (vitamin K) 0µg/100g (NDB # 1256 [incl. for "USDA's Food Distribution Program]), ND (no data), Gk (Greek)
Vitamin K "multiple roles independent of its known biochemical function as an enzyme cofactor, such as anti-inflammation, a ligand for steroid, and a xenobiotic receptor (SXR)". Also footnote 12: "high menaquinone intake reduces [emphasis added] the incidence of coronary heart disease". Vitamin K "Recommended Dietary Intake" is 120µg (increased from 80µg in May16), based on an average adult diet of 8,700KJ or 2,000 calories a day. Other directly relevant, to this product, vitamin K sources include egg yolks, molasses, wheat, alfalfa ([“Father of all foods”] also source of vitamin U [S-methyl-L-methionine a sulfonium betaine; PubChem CID 10197842]) (ref: Prescription for Dietary Wellness; Dr & Mrs Balch pub 1992).
MADE in NEW ZEALAND: ("Certificate of manufacture" (# 19/24)) from 70% grown in "more sun, LESS pollution, less pests and diseases" NEW ZEALAND ingredients
FOOD SAFETY VERIFICATION: Certificate Number 2699 (an International Accreditation NEW ZEALAND (IANZ) third-party inspection body audit, pursuant to the Food Act 2014) issued to Eat Right Foods Ltd at MPI's highest risk level, for the manufacture, processing, exporting, packing, holding and distribution of food products. And the independent audit company is ISO 17020 accredited.
ADDITIONAL Audited Compliance: Australian NEW ZEALAND Food Standards Act 1991 (FSANZ Act) and Code 2002; CAFTA Model Recall Procedure: Food Australia, 45(7), 313-316 1993; Codex Alimentarius Commission: Hazard Analysis Critical Control Point (HACCP) System & Guidelines Annex to CAC/RCP 1-1969, Revised 2022; Food Regulations 2015 (LI 2015/310), version July 2023 and Fair Trading Amendment Act 2021
SHELF LIFE: 18 weeks or more. Can be chilled or frozen indefinitely (at 0ºC (32ºF) or less)
AVAILABILITY: An EATRIGHT® Online Shop Only Product
ADDRESS: PO Box 1525 [Level 1, 6 Church St], Nelson 7040, NEW ZEALAND
PACKAGING: Label wrap around, now redundant, "clam shell" packaging assisted in tamper proofing and retail store tables/shelves stack-ability [no use of "twist ties"]. NB. The "clam shells" were replaced by buckets/tubs 5Jun07. Multiple subsequent packaging improvements have been made, with orders sent out using the latest type, unless packaging nostalgia is required. For example, shell weights included (2:13-cv-02174 dkt 27-12 p2 pack "TARE WT" blank for WA 98005 !!!) v. clam shell weight excluded (photo "TARE WT 0.0050 lb" for CA 94608 "one year" investigation SC122679 pub. 24Jun14) perfunctory differences. NZ "cockles" = US little neck "clams" [L clamo call out], US sl. a dollar, a taciturn person or refuses to speak (ref: Wiktionary) eg Soumit Roy (CEN) "moved on from the company, not that he…is unavailable to testify" (ref: 9th Cir. 15-35524 dkt 48-1 p20; 2:13-cv-02174 dkt 99-16 p5 ("inconsolable", solatium), dkt 27-15 interrogatory no. 4).
FREE display [**] from wood fiber boxes are available when purchasing ten or more one pack cookies. And "New Zealand’s solid capabilities in biomass production and processing can enable the scale up of numerous small scale bioplastic innovators" (ref: the Coriolis Report pub. Jun23).
"Wild Oats Reno" (NC RNO) store (NV 89502) supplied "Mixed Cookie 10.6oz Tubs" (21Nov07), significant sales during Sep08 to "Whole Foods Reno" (ref: 2:13-cv-02174 RFP # 41) then fringe [vertical-vendor-competitor] eliminated from a [horizontal-competitor] eliminated store…the actuality of "If we agree [to Safeway proposal] would that be in anyway to our detriment in our relationship with [Whole Foods] ?!?" (ref: 8Oct08 reply email to John Clougher (PN RSF) ie WFMI has acted with knowledge and intent). And PO Box 8102, NV 89507 (ref: 77752682 pre-Aug15) only 11 miles away. "Postcode…upped risk of tacit…collusion" (ref: Newsroom by A. Bevin pub. 24Oct24) tacit a. [L taceo be silent]; tach clasp or buckle [F (TACK)] ref: 4ed OX Dict. See also “Godzilla…Elimination of competition will enhance that success perhaps greatly…As a combination, we would be dominant” (US v. Microsoft Corp and Intuit Inc; complaint filed 27 Apr 1995; p3 ln13-14,22; updated 17Jul15 c/- 2:13-cv-02174 dkt 123) and repeat offending (ref: FTC v. Intuit Inc (file # 192 3119 dkt 9408 19Jan24) deceptive "free" cla[i]ms).
[^] New Zealand “novel” patent protected "anti-diabetes" from preformed whey permeate [not FDC ID: 171282 or ID: 171283 or Survey Food (FNDDS): 11825000] syrup has been trial tested (Oct23) in cookie products. In addition, the syrup or powdered form are good possibilities for (NZTE Enterprise Development Grant) "chocolate" project (shelved late 2004). The permeate considered nutritionally better than stevia, allulose or erianthus officinarum (canesugar), offering both sugar replacement, good mouth feel fat reduction opportunities. "Scale up" once clinical trials are complete. Where “[100 year] history of innovation in milk fractions” and "the world’s largest dairy exporter and a global low cost producer of dairy ingredients" (ref:
"Saccharum complex" alternatives include miSCANThus genera (not just erianthus [officinarum (Poaceae) common name(s): canesugar, molasses]) and miSCANThus japonicas (silver grass) ethnobotanical uses: "EYE" in country/region: Samoa (ref: USDA Phytochemical and Ethnobotanical databases).
Triticale flour, whole-grain (NDB 20070) a hybrid crop from wheat (Triticum) and rye (Secale) with 37.7% higher dietary fiber (14.6mg/100g c/- whole-grain-wheat NCB 20080 10.6mg/100g). Also a possible source of "fiber, low molecular weight (LC)" [water soluble fibre] from rye (FCDB E10010 4.9%)
Bio-economy, bio-diverse emerging (IFRS "future value" c/- GAAP "fair value" intangibles) alternatives (ref: The Coriolis Report pub. Jun23 an "intangible…government grant"; "Coriolis" not to be confused with but relevant "colitis", "enterocolitis"))
Scan [L scando climb], scant adj. (archaic exclamation in certain phrases) (ref: ed.4 OX Dict.)
[^^] Will the "permeate" and its "remark-ability" be enough to cut through digital "gatekeepers" (ref: Investigation into Competition into Digital Markets pub. Jul22 p33 "dual role, a dominant platform can mine [added emphasis] commercially valuable information"; with "undermine" [abusive] CONDUCT in multiple instances; p287 "conflating practices that may be unremarkable in competitive markets but abusive in monopoly markets")?
[^^^] From experience, “self preferencing [self privileging] practices” ie abuse of dominant position companies have included, but not limited to: “preferential-privileged” use of controversial ingredients, disparagement, "fringe" location labels & signs, copycat products, restricting products and product range, product category [pigeon hole] conveniences, trade dress [packaging design] infringements, demo takeovers, distribution tie-ups, predatory pricing, antitrust-illegal contracts, brand infringements, entity eliminations, jurisdictional forum shopping, fiduciary duty funebrial [a. (rare except predicate &c) ref: OX Dict.], merger impediments with back-to-front importance.
[^^^^] “I had expected better from a company like Whole Foods, which holds itself out to the public as being concerned with more than just its bottom line", "You can't destroy evidence. If everyone could get out of a lawsuit by burning documents, then everyone would do that" (ref: Stephen DeNittis "priceless comments" in email to "ERF" counsel 13Mar16) but yet another case of privileged contracts (ref: 9th Cir. Appeal 18-35473 dkt 13,14 does hurt "ERF" for the documents to be made public) . See also “in search of retail outliers” (ref: Motley Fool pub. 22May09; where WFMI co-founder and co-CEO joined the Company's Board of Directors) and "Investor Island [app]…compete online to destroy [emphasis added] each other's bases and gain a monopoly" (ref: Wikipedia).
[^^^^] In September “2015, rabbit meat sales…officially ended, leaving [non EATRIGHT®, WFMI preferenced--privileged] fruit snacks and cookies…in the shape of bunnies” (ref: Chowhound pub. 2Sep24). But rabbit ((sl.) feeble player or person) or easy to intimidate (v.t. frighten, cow, esp. in order to influence conduct), cow² (v.t. terrorize into submissiveness), cowardice (n. cowardly conduct [L cauda tail]) and tail² (n. provision limiting possession of an estate to a person…to a special class of these [TALLY (tally n. L talea rod)] (ref: ed.4 OX Dict.)). See also lethal dose levels for common herbs LD50 (EO) = 5000 intradermal rabbit (sage), LD50 >10 ml/kg dermal rabbit (rosemary) ref: Handbook of Medicinal Herbs 2nd ed. by James A. Duke pub. 2002 (USDA Dr Duke's Phytochemical…Databases n/a).
[^^^^^] PEDantic n. technicalities, dry-as-dust, doctrinaire [L pes foot; pediculus louse] (ref: OX Dict.). Where trademark international class 05 includes “preparations for destroying vermin” (not claimed in IPONZ, USPTO cl. 5 EATRIGHT registrations) and louse (n. pl. lice) c/- "Lousewife" [Housewife] (ref: 386 F.2d 936 (3d Cir. 1967)). And pest prevention "PO70" important in Food SAFETY Manual: verification # 2699, pest n. noxious person, p.-house (arch.) hospital for plague &c [L pestis plague, noxa harm] (ref: OX Dict). Where the hallmark of "fungibility" is considered to be a "merchant's commercial indifference…test of "functionally interchangeability" spawns absurdity-for instance, by holding all foods "interchangeable" for eating and hence legally alike" (ref: Price Differentials And Product Differentiation: The Issues Under The Robinson-Patman Act, The Yale Law Journal, vol. 66:1).
[^^^^^^] Insurance Policy # HO.BSP.3187390 correspondence (01 October 2010 10:05) to "ERF" included “with all the quake-related bedlam [emphasis added] at the moment completely forgot to pursue further !” And “North American Liability Exposures – Risks Questionnaire” completed and sent. Where "Betts Patterson & Mines, P.S.…Convention Place…insurance is an industry of immense complexity" c/- "Manual for Complex Litigation (4th edition)". Where bedlam (n. scene of uproar) antonym includes order, contract etc; quake (abbrev. earthquake) and adversity n. a. fortune, misfortune [L verto turn] (the Adversary, the Devil) (ref: ed.4 OX Dictionary, Thesaurus) and "natural disasters or other catastrophic occurrences" (ref: 2:13-cv-02174 dkt 27-1 p17 "perishable...materially impact…66.2% of total sales"). Compare with AMZN SEC filing 15Jun17 p24 (q) Intellectual Property (ii) …Material Adverse Effect: (A)…free and clear of all Liens… (C)…has not, since September 28, 2014, , infringed, misappropriated or otherwise violated…. Importantly, "before" 20Sept14 (ref: 2:13-cv-02174 dkt 1 to dkt 59) yet "after" misappropriations or others includes "scientific substantiation" (dkt 27-1 p18) such as "Multiple Vitamin K Forms Exist in Dairy Foods" (ref: 1Jun17) et al. And lien n. (obsolete) A tendon [ethnobotany use of Heavenly Bamboo Nandina domestica ref: USDA Dr Duke c/- "bamboo" 2:13-cv-02174 dkt 32-5 p2]; (law) A right to take possession of a debtor’s property as security until a debt or duty is discharged (ref: Wiktionary) [L ligo bind].
[^^^^^^^^] What is so strange about Mrs. or Mrs [not Mr. or Mr] Gooch?
Is it the "Barbe to Queue" ["multi-ingredient…vegan peach bbq tofu salad" (email 4Dec14), 2:13-cv-02174 dkt 7 id 6 p7; to "Grill" in 888 F.3d 651 (2018)], "whiskers to [re]tail[er]" (ref: USPTO 73639295 specimen) or "soup [to] nuts" including “multi-factor selection” (ref: 3:18-cv-07548 dkt 125)
or "Mrs Gooch’s Natural Food Markets, Inc*" (ref: 2:13-cv-02714 dkt 27-2 p2) and Food Fighter article by Nick Paumgarten (pub. 27Dec09) “Correction, February 11, 2010: ‘Sandy Gooch and HER [emphasis added] head...merchandising of meat.*' not ‘Sandy gooch and HIS head’. mission (n. (obsolete) dismissal (ref: Wiktionary)).
or the "Goo…" (c/- .ch (Switzerland) v. .gle), "Goochable" (USPTO 74305162)? (“Substantial portions of the American population have simply been born too late to claim their surnames as single-word marks” (ref: Are We Running Out of Trademarks? Harvard Law Review Vol. 131:945; Congestion of surnames p987))
or abandoned "tail² (adj. limited by a t. (esp. fee t. (ref: ed.4 OX Dict))" of USPTO 74727652, 74727719?
or USPTO 73639295 ("digestion enzymes" [c/- WFMI wholezyme USPTO 75506914]) where IC 005, IC25 (yogurt) deleted in entirety 24Feb09, IC 030 deleted in entirety 24Sep19 post 1:14-mc-02588. And supplement testing, inspection and certification (TIC) entities Eurofins, NSF International and UL Solutions the “gatekeepers in the Amazon marketplace” (by Rachel French, New Hope Network pub. 19Oct24)
or the conflict of interest of "Mrs Gooch" (IPONZ 166555 class 5, 30) agent, at that time, "McCabe & Co" (also "ERF NZTE Beachheads Application" 12Jun08; "Legal McCabe & Company") emailed for Dr Nickerson Rebuttal Report 1Mar15?
or a subsidiary with "*" (ref: 2:13-cv-02714 dkt 27-2)?
or its original base at "Sherman [Antitrust Act] Oaks, US 91403" assigned 3Jul00 "corporation" to "corporation" (IP Inc) but then to "partnership" (IP LP)?
or "tree-free" [fiber not specified] plates with GTIN "0 85692 0005…" 28Jul16 specimen (§8, §9) in class 21 "household or kitchen utensils and containers…[S.O.S. 386 F.2d 936 (1967)] steel wool" (ref: USPTO 78812265 "Green Mission" (ref: 2:13-cv-02714 dkt 38 id 3)) c/- design code 11 "household utensils…" in EATRIGHT®?
or USPTO 73220931, 73407388 "…grocery supermarket…retail gift" incl. design code cl. 3 goose, geese […that lays the golden eggs; wild…chase], cl. 5 "baskets of…, containers of", cl. 26 "as carriers"?
or a party in EPA Docket No. RCRA-HQ-2017-0001 Proceeding Under Section 3008(a) of the Resource Conservation and Recovery Act, 42 U.S.C. § 6928(a) pub. 18Jan17 signatures: "R…Lang" (p21,22) but excl. id 16, 17 "Whole Foods Company, Inc [Jurisdiction of Incorporation Louisiana, LA] …Whole Foods Market Rocky Mountain/Southwest, L.P. [Jurisdiction TX]" and "stores…Oklahoma [OK]". Where "Roberta Lang" (ref: 2:13-cv-02174 dkt 27-6 p2, dkt 27-5 id 4 p7, dkt 93-22 p16 cc'ed) "moved on from the company, not that…she is unavailable to testify" (ref: 880 F.3d 1109 (2018) p20). And settlement, 5Jun24 by "…Group, Inc * [DE]" at the expense of California, CA and Hawaii, HI (ref: dkt 27-2) jurisdictional differences, coincided with "Judiciary letter on DESTROYED evidence" (pub. 3Jun24, emphasis added)!
or a party in CV18-1578 (yolocounty.org) where "deficiencies were systemic…properly label, package” (pub. 20Sep18)? "Pollution [incl. hazardous waste] the result of too much funding and not enough intangible assets" (ref: Intangible Matters, EverEdge Global pub. Oct24) with EPA recent approval of "Warehouse ISR Rule 2305" (pub. 11Sep24).
or non-price "discrimination" where 'differential that "puts the unfavored competitor at a disadvantage"' (ref: Automatic Canteen Co. v. FTC, 346 U.S. 61 (1953), Yale Law Journal vol. 66:1 p37))?
or “evidence on the effects of the patenting of software [was, in 2002] inconclusive”. But, each and every, “patent is, literally, a license to overcharge…benefits from awarding the patent [MUST, emphasis added] outweigh the costs” (Reinventing the Bazaar a Natural History of Markets by John McMillan (pub. 2002)). For instance, US Patent 5,960,411 or "1-Click" (filed 1997) challenged by "Kiwi" [yank v.t. (sl.) pull (lever & c.) with a jerk (ref: ed.4 OX Dict)] actor Peter Calveley (ref: SMH by Stephen Hutcheon pub. 23May06). Comparison shop "blocker" Patent US9665881B1. "Treatment Program" Patent 7,788,113 (2:13-cv-02174 dkt 55-1 id 1.1 (a)(iv) p2; a "naked" assignment). And possibly, as yet, unknown ors (abbrev. others). Where Eat Right Foods Ltd ("ERF") rights include "unpatented technologies", "work[s] of artistic importance" (ref: 3:18-cv-07548-AGT dkt 125) et al (ref: Brand Finance GIFT 2021 p11; IFRS 3, FAS 141)
or "patent protection" of Webvan (ref: eGrocery:… by Coriolis Research pub. Nov00), "From the ashes of Webvan…AmazonFresh (Mountz (Founder, Kiva Systems), Herrington, Ham, Mastandrea)" (ref: Reuters by Alistair Barr pub. 19Jun13) c/- "rise out from the ashes" (ref: Business Proof for ExpoWest badge #'s 226074 & 226084 (email 12Feb15) confinement to "manufacturer" or "distributor" or "retailer" [adhoc or palm tree justice] rather than exporter, from New Zealand, that is a "manufacturer, processor, distributor and [online] retailer")
or timing of "IpVenture [primary industry Buildings and Property] Announces Sale of WebVan Patent Portfolio" (ref: PRNewsWire pub. 29Oct14) c/- 2:13-cv-02174 dkt 65 and 2:15-cv-01550-RSL dkt 53
or legal evidence so damning it needed to be destroyed (ref: 0:99-cv-00548-RHK-RLE cause: 15:1125 dkts 52-56), evidence in House Judiciary Report on Digital Markets (p223 Kiva's broken "promise to non-Amazon customers" in 2015; "ANTICOMPETITIVE [discriminatory] CONDUCT" [emphasis added]) c/- Notice of Motion, “this House, congratulate Nelson small business Eat Right foods… with exports to Singapore, Australia and the US” (pub. Sep06)
or “Zappos.Com, Inc., and Zappos Retail, Inc” (an Amazon.com Inc 2009 acquisition ref: Investigation of Competition in Digital Markets: 117th US Cong (pub. Jul’22)) also tied up in Romag FASTENERS, Inc v. Fossil, Inc with the case involving both US Patent 5,722,126 and Trademark 2,095,367 before decision 590 U.S. _ (2020).
or "rivet [r] brand" USPTO 87649324 filed 17Oct17 (ref: 3:18-cv-07548 dkt 1, design patent D815,452 infringement) owner "Tech…, Inc" includes IC20 furniture, "[smoke and] mirrors"; IC21 "trays"; IC24 covers, [on notice for genericide 1:13-cv-00002-TFH on "Amazon Green" webpage, baby] blankets" et al [USPTO 78365348 owner began as ".com, Inc" and IC20 includes US Class 25 "locks and safes" with no matching/overlap design class. US Class 22 c/- EATRIGHT® with design class 21 "title" significant overlap)]. See also 'arguments against liability for algorithmically-selected photos would essentially lead to rules where no one's responsible if artificial intelligence machines commit "dystopian mass murder"' (ref: www.law360.com/cases/5c143c15250c832c1cdc5456) and USPTO 88649324 IC9 integrated with Google Assistant that coinciding with the Oct20 settlement
or rivet fastener [button], etymology Old French river (“to fetter [a person]”), Old French rive (“rim, edge”)…footman’s armour” (ref: Wikitionary). US v. Bazaarvoice Inc (3:13-cv-00133-WHO) “Project Peloton” 9Dec11; DOJ case-documents: 26Sep13 p65 “creates significant competitive barriers to entry and protects our flank”
or in attachment “How to Update an Existing Promo File in VIP 2.2.doc” id 2 & id 4 “Select the “promo” File Type BUTTON””, attachment “How to Update an Existing Cost File in VIP 2.2.doc” id 10 “Select the “regular” File Type BUTTON” (ref: 2:13-cv-02174 dkt 26 id 11, dkt 26-4) c/- “shopbtn-bg.jpg” green "Online Shop" BUTTON image/background colour (emphasis added) (ref: Cactus Software Ltd)
or “Amazon utilizes existing loopholes in Generally Accepted Accounting Principles (GAAP) disclosure regulations to EXCLUDE [emphasis added] a significant portion of its expenses…For example, lease repayments alone total[l]ed $200 million in 2017” (ref: Prime Predator: Amazon and the Rational of Below Average Variable Cost Pricing Strategies Among Negative-Cash Flow Firms by Shaoul Sussman p12 pub. 15Aug19) c/- “ERF” damages calculations (30Jan15) that DID include “rent” [ie "lease agreement" IFRS 3 intangibles] of resource consented food manufacturing facilities (incl. warehouse, eGrocery) but with NO anti-competitive retail grocery sector (incl. supermarket, warehouse, carparking) "property controls" (restrictive covenants, ratchet (sl. rat shit) clauses, length etc)
or [¹, n. gold or yellow] totality of circumstances
- 'Broken promises WITHOUT consequences'. To a Bain [of Founder's Mentality] consultant 'be careful with FTC. We want to say we can run them'.
A Flawed Divestiture, Dynamic Pricing on Steroids... by Corey Lipton, The Sling pub. 27Sep24
- 'Any single action by one of these companies can affect hundreds of millions of us in profound & lasting ways' (Hearing by Chair Cicilline). Antitrust Guarantee provides another means of protection.
The Antitrust Guarantee by Asst. Prof. Kevin T. Frazier pub. 23Sep24
- 'Frankly dumbfounded…entire product line…mysteriously disappeared off the planet…repeatedly assured…being preserved'
DeNittis Osefchen P.C. Announces Whole Foods Market Accused Of Destroying Crucial Evidence In Yogurt Class Action pub. 4Mar16
- Congress asked to probe tech companies hiding antitrust evidence.
Judiciary letter on DESTROYED evidence pub. 3Jun24
- Evidence of rampant abuse of privilege [an 'abuse of market power'].
CA State Bar Urged to Hold Google Counsel Accountable for Evidence Destruction pub. 22Oct24