EATRIGHT® Presentation Booklet (incl. Back & Inside Covers)
"Misleading and Deceptive Conduct: When should it be actionable under Section 2 of the Sherman Act? Joint DOJ/FTC Workshop on Single Firm Conduct"
by Frommer Lawrence & Haug LLP (ref: justice.gov/archives/atr/misleading-and-deceptive-conduct-1). Slides include "Abuse of Governmental Processes Through Deception in the Intellectual Property Setting", WALKER Process, Inc. v. Food Machinery & Chem. Corp., 382 U.S. 172 (1965), "Inequitable Conduct/Sham Litigation" and others. See also "UDAP" (Unfair or Deceptive Acts) or 'Little' FTC Act, 2:13-cv-02174 dkt 149 "Inc" and other "hard-to" un-terroir evidence.
Where the presenter was from law firm "Frommer Lawrence & Haug LLP". Of note and relevance, 2:13-cv-02174 dkt 1 to dkt 24, included "Frommer LAWRENCE & Haug LLP" for Plaintiff Eat Right Foods Ltd. The middleman name “LAWRENCE” is important. For instance, “the District Court and the parties never learned how Ms. Douglas-Clifford’s March 3, 2010 [NZST] email was actually understood by Whole Foods’ outside trademark counsel [C. “LAWRENCE” Graff]. This is because Whole Foods’ outside trademark counsel, a partner in the same law firm as Whole Foods’ trial counsel, never submitted a declaration in connection with this case and objected to Eat Right’s subpoena for deposition testimony on relevancy grounds” (ref: 9th Circuit DRAFT Appeal Brief [underline added] (8Oct15), completely omitted from final 15-35524 brief (pub. 30Oct15) and 2:13-cv-02174 dkt 27-15 id4 p7, dkt 27-16 id17). And (LAWRENCE) Zelle.com LLP 7Jun08 "costs" c/- “AIPLA Report of the Economic Survey, 2009, trademark infringement litigation costs” (ref: footnote 52; Report to Congress Apr11).
"In March 2010, when Mr. Leville and Dr. Fuhrman met with Whole Foods representatives regarding forming an Eat Right America food company…In June 2010, Dr. Fuhrman…dinned with Whole Foods’ CEO at a New York restaurant…presented their line of salad dressings" (ref: Nutritional Excellence v. Joel D. Fuhrman and Drfuhrman Online, Inc.1:2011-cv-00435 id 52 in Petition for...aid of arbitration 12Jan10). Where 2:13-cv-02174 dkt 32 id 6 “Exhibit B [dkt 32-2]…distributed or manufactured” had middle-missing "PACKER" (ref: dkt 25 p11 ln 24 "manufacturer, packer, or distributor..."), “Falsely Claiming to be Manufacturer [Packer]” (ref: FTC case 1887) and "..." includes dkt 27-11 "(5)" [dkt 1 exh D "hazelnuts....almond"], "(6)" [21 CFR 101; "perhaps the [<$500,000] exemption removal is new?" 17Jun14 ] and "(7)" [USPTO reg 4195299 1Jun12 specimen p1 "Color Added" but "canthaxanthin or asTAXanthin" not disclosed]. manufacture v.t. Produce (articles), work up (materials) into finished articles (ref: OX Dict. 4th ed), lack of meaningful “production” (ref: 2:13-cv-02174 dkt 27-16) and “lumping together”, “failed to economically cost justify” (ref: 334 U.S. 37 (1948)). And let's not forget the 'Billionaires' Dinner' with evidence "scrubbed" (ref: Julia La Roche; Yahoo!Finance; Updated 16Jul19), "dined with him anyway" (ref: Buzzfeed 10Spt19), relevant to “Damn the torpedos” behavior (ref: 9th Cir. 18-35473 dkt 55 p10, 19) and "cannot take a full-speed ahead, damn-thetorpedoes approach" (ref: 665 F.3d 1015 (2011)).
Of note is a 2Mar10 registration certificate issued for USPTO 76649960; 3Mar10 extension of time to file a SOU 76682572 (no actual product specimens ever provided). The “well-documented
reality that giant international rivals recognize that their mutual self-interest lies in cooperation and collusion, not HARD competition” (ref: p817 Walter Adams and James W. Brock,The Proposed Emasculation of Section 7 of the Clayton Act, 65 Neb. L. Rev. (1986) also p821 "lox"). Where lax n. [lox] smoked-dried salmon; lax a. (rare) not compact or tight; collusion n. Fraudulent secret understanding between ostensible components [L ludo play] and ostensible a. Professed, used as a blind (ref: Oxford Dictionary 4th edition).
Where the "Report on Permanent Weight Loss" by Roberta Russell (pub. 29Sep16) "Whole Foods advertisement (Appendix 3) featuring Dr. Joel Fuhrman as Eat Right America’s Chief Medical Officer quoted the flawed study on line in its 28 Day Challenge plan, boldly quoting his “53-pound-weight-loss” study in its headline. Even after Dr. Campbell informed members of the Whole Foods board and its leader John Mackey that Fuhrman misrepresented not just the longevity of the weight loss, and was discovered to be mistaken about the amount of weight loss, they did not remove the Whole Food’s wrong representations (Appendices 3 & 4). This retrospective study of Fuhrman’s own patients was apparently not checked against the raw data by the journal editors to compare it with the study’s conclusions". See also Appendix 1 "Recession of Authorship" 7Jul11 and Appendix 2 "Letter from T. Colin Campbell, PhD to John Mackey, Whole Foods" 19Nov11 including issues such as "this behavior can ruin personal careers as well as seriously distort the credibility of this field". Where deal done 4Aug11 (ref: 2:13-cv-02174 dkt 55-1 excluded p41 disclosure of legal correspondence pre- USPTO TTAB 91202219 filing 21Oct11). And use of “ERA” in WFM stores was a sophisticated bundle ie a “ERA/ANDI hybrid logo” (refer appeal 18-35473; ER910 (redacted). On 16th October 2019, Amazon was assigned (from WFM) one part of this “hybrid” logo ie the ANDI trademark see USPTO...77868087 (ref: 2:13-cv-02174 dkt 149 p9).
"Fraud on U.S. Patent and Trademark Office" also present in case 2:09-cv-06988-DSF-JEM dkt 482 p4 "Plaintiff is only required to prove the applicant’s – i.e., NuVasive’s –KNOWLEDGE and INTENT" [emphasis added]. And 2:13-cv-02174 dkt 108-10 p14, during the full deposition, "Margaret Wittwnbeg [Wittenberg] contradicted herself regarding searches for TM [trademark] clearance. She first said she doesn't know about that. "That's not my job". Then we found emails in 2010 regarding naming the 4 pillars of HSH [Health Starts Here] where she is like "make sure we clear that trademark before we use it "Priceless" [L pretium]. And Ms. Wittenberg [^] was Vice President of Governmental and Public Affairs prior to position of Global Vice President of Quality Standards see eg "USDA/National Organic Standards Board Dairy Pasture Symposium" (April 18-19, 2006) slides including "Organic [50%] price premium is real", "pasture-based system as a requirement, is more important than watering them down to increase supply or keep prices down". Also Ms. Wittenberg knowledge of confusion (ref: "confidential" WFM019226-31]. See also draft TTAB 91202219 Settlement Agreement where “Leville Parties” included “Clancy Holdings LLC" (formed Jan13) and other shifty [a. not shiftless (rare), (of wind) variable (rare), (usu.) addicted to indirect courses or deceit ref: 4th ed. OX Dict.] affiliates. And "Clancy”, Matt, a former ERS USDA staffer, "HOLDING gains and losses, net of the related tax effect, on available-for-sale investments are excluded from earnings" (ref: 2:13-cv-02174 dkt 27-1 p45 [emphasis added]), "Whole Foods ignores the foundation that this Court reviews judgments [no double “e” (USPTO 97359794)], not holdings or opinions. Weissman v. Quail Lodge, Inc., 179 F.3d 1194, 1200 (9th Cir. 1999)" (ref: 9th Cir 18-35473 p20), "current good manufacturing practice in manufacturing, packing, or HOLDING human food" (ref: Code of Federal Regulations, Title 21, Part 117) and Food Safety and Modernization Act of 2011 “food facility” is any entity “engaged in manufacturing, processing, packing, or HOLDING food” that isn’t sold to customers directly" [^^] [emphasis added].
Yet "sewage sludge^" [2:13-cv-02174 dkt 27-1 p6] or effluent [Walker Process equipment] organic practice differences was not covered in USDA/National Organic Standards Board Dairy Pasture Symposium. Where cow v.t. Terrorize into submissiveness [obs. slype dung] (ref: OX Dictionary 4th ed). Also escalating incidences of wild fires, depending on geographical location, encourage or restrict use of Polybromodiphenyl ethers (PBDEs) retardants [^^^] aerial application rotor-wing "buckets" or (not stationed in New Zealand) fixed-wing "hoppers".
See also, a very interesting reference to “sewer” in [2:13-cv-02174] “List of computers, people with custody and ftp file” email (19Mar14). "effluent n. Stream from larger stream, sewage, manure; manure v.t. Treat with m. [MANOEUVRE]; manoeuvre n. strategical or tactical movement" (ref: Oxford Dictionary, 4th ed). Where shipping container exports of EATRIGHT® products have had no “S.H.I.T.” (Store High In Transit or Ship High In Transit) stamp or special storage requirements. And fecal consistency stool testing, fecal excretion of saturated fats by soluble dietary fiber are important EATRIGHT® ingredient attributes. For instance, depending on the product, corresponding EU and/or FSANZ “fibre” ("fiber") approved health effects include “contributes to normal bowel function”, “acceleration of intestinal transit”, “contributes to regular laxation”, “improves gastrointestinal comfort”.
“Once Rare Digestive Disease Now Striking 1 in 133 Americans” (ref: Thrive Allergy & Gluten-free Expo; 2Feb09; rs6.net; constantcontact.com). One in every 12 individuals has received a diagnosis of a rare or "orphan" disease. "There are more than 5,000 rare disorders that, taken together, affect approximately 20 million Americans" (ref: UIA Encyclopedia of World Problems & Human Potential ). rare a. Of loosely packed substance, NOT dense; rarity [L rarus]; density n. (opp. rarity) (ref: Dictionary, Oxford, edition 4). Where "nutrient dense" [ANDI® (Aggregate Nutrient Density Index) ref: 2:13-cv-02174 dkt 91; dkt 108-4 p6-7; dkt 108-5 p10,16] included fruit and vegetables in water retentive state. But "Chicory, raw" (X40; 96.2% [bound (incontestable, essential) & unbound (contestible, non-essential)] water ref: NZFoodCompositionDatabase); Chicory greens, raw (11152; 92% [bound & unbound] water ref: FoodData Central) and Chicory roots, raw (11154; 80% [bound & unbound] water ref: FoodData Central). And Chicory (raw/dried and part unspecified ie greens, spindle-shaped taproots, flowers etc; Common/vernacular names: Blue sailors, succory, witloof, endive) Indications: Water Retention (1; FAD; PNC; VVG; WO2); Activities: Diuretic (1; FAD; PNC; VVG; WO2) (ref: Handbook of Medicinal Herbs 2nd ed.).
Lopsided or asymmetric oligopolist price information, also referred to as “rockets and feathers” (ref: Bryan Chapple, ComCom), entails quick speed price increases yet slow [WFM promises but over a year to enact] price decreases. See also rocket acquisitions [2:13-cv-02714 dkt 55-1] yet feather [additional year license; even longer in use time] trademark offending. And purge n. An aperient (laxative [L aperio open]) on 1Dec12 IP history 64.132.0.4 change to 23.21.241.79 contributing to “no longer accessible…after litigation was reasonably foreseeable” (ref: 880 F.3d 1109 (2018)) a NO candor "tyrant" operative (ref: AG Kanter speech foreignaffairs.co.nz pub. 29Jun24). tyrant n. (Gk hist.) absolute ruler owing his office to usurpation [Gk turannos]; usurp v.t. & i. Sieze, assume, (throne, power, &c) wrongfully (ref: Ox Dictionary 4th ed).
Where "Grandfather Clause" vested rights in, among others, the FTC Act section 13(b) “disgorgement” et al. The list of enacted Grandfather Clauses (grandfather policy or grandfathering) includes the Federal Communications Commission (ref: Wikipedia). Pre-1930 the 3 letter call signs of United Broadcasting Company (UBC) [“The Silver Network”, “precocious baby chain of the Pacific Coast”] included KXA Seattle, KXL Portland, KGB San Diego (see: USPTO 3253018 a sub-brand of "DLM" and “middle” assignment). On 1Apr31 UBC “suspended operations”, "Federal Trade Commission…rules of business practice", "curtails its activities...lack of financial support" [L curtus short; -tail corrupt. of obsolete adj. curtal ref: OX Dict. ed4], merged with The Northwest Broadcasting System (KGA Pokane, KEX Portland, KJR Seattle). Post-1930, 4 letter call signs were adopted (ref: The Broadcast Archive, Broadcasters News Bulletin 11Apr31). Securities and Exchange Commission (SEC) pre-Wild Oats merger 4 letter ticker “WFMI”; post-Wild Oats a 3 letter ticker “WFM”; not the inference “completed our initial public offering in January 1992, and our common stock trades on the NASDAQ Global Select Market under the symbol “WFM.”” With missing in the middle “WFMI” (ref: 2:13-cv-02174 dkt 27-1 p5) "mastery of complex [command the middle] distribution systems can matter more than having the best product on the shelf" (ref: Geoff Tuff and Stephen Wunker, "Beacons for..." [signal], pub. 2014). prize n. prize-court, department of admiralty concerned with prized possession; award v.t. Adjudge (payment, prize, penalty, to. n. Judicial sentence; thing awarded (ref: 4th ed. Oxford Dictionary); “award” (ref: dkt 26 id 2).
"DLM" (Dorothy Lane Market) "Honestly Better" trademark in "X-Search...third party registrations" USPTO 85746373 "Gluten Smart by Eating Right" classification of goods "gluten free" to be in BOTH (29&30) classes (5Dec12 Offc Action Outgoing) not "50 percent". And subsequent related application had “INSUFFICIENT fees” paid (ie 4 classes (cl. 5, 29, 30 & 32) but ONLY 3 class payment) by “sophisticated”, address hopping, well versed in his clients antics (n. "or trick, (usu. pl.); (arch.) mountebank" ref: Ox Dict.), trademark attorney. Of note are the legal "breadcrumb" textual [L texo weave] obligations by “Esquire” [L scutum shield] eg 85914688 & 85914677 "insufficient" in correspondence 9-10Jul13 and the "peanut” bar specimens. peanuts [n. trifles, chicken feed, a paltry sum] paid in USPTO fees c/- "EXCESSIVE" fees, on-charges (eg "introductory", "settlement", "warehouse", "distribution", "quantity buy", "ullage", "other rebate", "volume rebate", promotional "$coop"). Where “Fort Worth grand jury charged that Safeway…prices lower…sales quotas stores in Texas and New Mexico, amounting to from 25 to 50 percent” [25% insufficient fees] (pub. 7th Jul 1957; 5 Mar 22) USPTO 76660246 filed only one class 29 with "knowledge and intent". And here, id 106.2.1 "settlement agreements…restraint that is longer in duration than the remaining life of the intellectual property right at the heart of the dispute" (ref: NZ ComCom; Guidelines on the Application of Competition Law to Intellectual Property Rights pub. Apr23), is a grocery store sub- or by-brand symptomatic of market power [Gk pipto fall (ref: Ox Dict)] id 46.2 “barriers to entry and expansion are high, a persistently high market share…substantial market power” (ref: NZ ComCom; Misuse of Market Power pub. Mar22).
“Strong, innovative supplier network...products that NO ONE ELSE CAN…suppliers are highly innovative, continuously improving the quality” but also “creative IMITATION…assimilate our competitors innovations” [emphasis added] (ref: 2:13-cv-02174 dkt 111-12 p5, 7). With use of “supplier” rather than vendor (2:13-cv-02174 dkt 25 p14 ln 20-22 “doctrine of contributory infringement…corporate principals…“willfully blind” to the infringement by vendors”) and “vendor-reseller” (9th Cir Appeal 18-35473 dkt 8 p17); imitation n. copy; counterfeit [L imitor] (ref: Oxford Dictionary 4th ed). EATRIGHT® "brands…restored" (ref: mccabes.co.nz; IP location Amazon.com Inc) not just protected and renewed. Also, 2:13-cv-02174 dkt 111-12 p5 “70 to 80 percent of the value…is created by suppliers” (note 2: “Collaborative Marketing”, Invited Presentation at the Conference, “Does Marketing Need REFORM”, Bentley College, Boston, July 2004 by Mohanbir Sawhney. See also "marketing effectiveness is down…academics aren't relevant…ethical and moral crisis" by D. AUSTIN Prof. of Mkting, Glen L. Urban) “I'm not a scientist”, “no control, no input” (TTAB 91202219; LeVille testimony 26Apr11 p38,143)…2:13-cv-02174 dkt 1 exh. D-E.
USPTO registration 2738837 has, in its 'related property information claimed ownership', a river [*] registration 1930917 [registrant 'Advanced Computer Communications' (Ericsson Inc) where other river applications included “Nile” 74521329, “Danube” 74521344, “Yukon” 74650835, “Tahoe” 74521330, “Congo 74652559”]. But "Indian RIVER Fruit & Vegetable Distributors, Inc., et al and Frank C. Spadaro" (ref: FTC dkt 4730 decision: 6Jun44) a “terroir” characteristic. Also “river blindness” (onchocerciasis or “craw-craw” ref: UIA 134153) is caused by parasitic worm (Onchocerca volvulus) with “no vaccine or drug to prevent”. It is considered the “second-most common cause of blindness due to infection, after trachoma” a neglected tropical disease (NTD) ref: cdc.gov/parasites/resources/pdf/NTD_FactSheet_2024.pdf et al. Where pepper (Piper nigrum [also piperine source: Kawakawa]) has “craw-craw” ethnobotany use (ref: phytochem.nal.usda.gov) where “food is the best vaccine against chaos” (ref: 2020 Nobel Peace Prize). Hence, EATRIGHT® anti-[Soil-Transmitted]-Helminths (ie Hookworm, Roundworm, Whipworm) bioactive ingredients are listed for various products.
But, because “people from developed Westernised countries experience less parasitic diseases (ie hookworm infection), they [do] have higher rates of inflammatory and autoimmune disease including coeliac, asthma, allergy, MS and IBD” (ref: Hookworm clinical study; Malaghan Institute of Medical Research updated 30May24). Hence EATRIGHT® attributes, bioactives and supporting research are also listed for those aliments, where applicable. NO myope n. short-sighted; myopic a. [Gk muo shut, ops eye] innovations. For instance, for biological activity “myoprotective”, the phytochemical is non-ubiquitous rutin with significant source buckwheat 468,900ppm (USDA Dr. Duke Databases).
P.S. "E-Mail[s] and...attachments were free of any virus, worm, Trojan horse, and/or malicious code" (ref: Doctor Gluten team; 27May08).
P.S.S. Photo proofs of EATRIGHT® Presentation Booklet Back and Inside Covers [ref: 2:13-cv-02174 dkt 26-2]. Stock image flowers are not "CUT" flowers in tin/metal buckets/cans [230 F. 859 (1916)] where Blumebox (female entrepreneur) was another WFM containment story.
P.S.S.S For Eat Right Foods Ltd, it was Professor J.R.L WALKER, University of Canterbury, Department of Botany (rather than Walker Process Inc) and others who uncovered "Antibiotic substances from New Zealand plants. II. Polygodial, an anti-Candida agent from Pseudowintera colorata; Planta Med 1982 Mar;44(3):134-8 ... a remarkable breakthrough. Where EATRIGHT® ingredient : product attributes include "yeast reduced", "suitable for a low yeast diet" etc. See also, recent great work by Massey University on "enzymes deaminate cytosine" (ref: Nat Commun 14, 6382 (2023)).
[*] Gk phasis river; L vulgus people (ref: 2:13-cv-02174 dkt 38-6 p3 PREPARED [foods and catering; foods and bakery dkt 27-1 p6] Bean; Phaseolus vulgaris).
Inconvenient data (i): Only one eatrighteurope.com (archive.org 17Jul13) but part of "en masse" domain registrations by Nutritional Excellence LLC with dubious assignments of bundled assets. See Nov09 id 4 (v) a. "including, but not limited to...The ERA Café - (eatrightcafe.com) ("ERA Café") a social network" (ref: 9th Cir. 15-35524 ER759; WFM001289), USPTO 85486204 and "required consents...privacy policy...users' information will NOT be sold to third parties...website database is a Purchased Asset...NO assurance that this is a effective waiver" [emphasis added] (ref: 2:13-cv-02174 dkt 55-1 p36 [4Aug11] and "terms & conditions" dkt 27-8). Where the emperor (n. L impero command) had NO [attire (“n. Dress, apparel [TIER; orig. = put in order]” ref: OX Dict. 4th ed)] wearables (“pedometers etc” ref: WFM019228) naked assignments (ref: USPTO TTAB 91202219 LeVille deposition 26Apr11).
Inconvenient data (ii): Pedometers and "accelerometer…caution must be observed. It is well recognized that these devices are prone to errors such as under-measurement of steps if worn on the wrist, and over-measurement if the wearer uses tools or other devices that cause vibration" (ref: eNutrition - The next dimension for eHealth? by Boland & Bronlund; Riddet Institute (pub. 9Aug19). “Some courts have already found that the loss of data and privacy do constitute harm to competition or antitrust injury, even under existing law. E.g., Klein v. Facebook, Inc., 580 F. Supp. 3d 743, 803–04 (N.D. Cal. 2022); Fed. Trade Comm'n v. Facebook, Inc., 581 F. Supp. 3d 34, 55–56 (D.D.C. 2022)” (ref: CLRC Tech Platforms Working Group’s Report).
Inconvenient data (iii): Despite having a trade account Aug'01 to Feb'13; post Feb'13 a securities register mandatory requirement was made by Trents Wholesale Ltd (companies register 921537), with highly unusual inclusion "Eat Right Foods Ltd Eat Right Foods Cafe" not the prior 12 year "Eat Right Foods Ltd" for Customer Number: 372277. Where EATRIGHT® products were "direct to retail store" not through Foodstuffs South Island "wholesaler".
Inconvenient data (iv): “Because of the relative lack of national [emphasis added] brands within the natural products marketplace…unique private label opportunity” (ref: WFMI 10-K filed 8Dec05).
Where only "10 companies control everything you buy” (ref: 166 Oxfam Briefing Paper pub. 26Feb13) despite the illusion [L ludo play] that "stores carry on average approximately 21,000 SKUs” (2:13-cv-20174 dkt 27-1 p6) consumers "bamboozled" (ref: footnote 83 of Resurrecting the FTC Act’s Penalty Offense Authority by Rohit Chopra & Samuel A. Levine (USA v. Amazon Inc 1:13-cv-00002-TFH dkt 2-1 3Jan13), "data harvesting" p42). For instance, it would not be unreasonable for Coca-cola (up to "400 brands") x 10 = 4,000 SKU's, P&G ("80 brands") x 10 = 800 SKUs, “General Mills, Pepsi and Kellogg” (ref: 2:13-cv-20174 dkt 27-10 p3), “HEINZ Road, IA 522[40]” for WFM Midwest (dkt 26-2 p4) etc. Hence, it is entirely possible (without specific data access) that "10 companies" would have 20,000 SKUs in a store, leaving only 1,000 SKUs or less to the non-"10".
Such is the rarity [L rarus] or scarcity (ref: EverEdge Global) of Eat Right Foods Ltd as an
■ OEM (original export MANUFACTURER) not just "packer" or "holder"
■ NO venture capital (<2% to women; where Nutraceuticals [including ANZSIC [1199] and [1841]..."packaging services [7320]"..."other grocery wholesaling [3609]" etc "has attracted global investment" (the Coriolis Report pub. Jun23))
■ NO “Local Producer Loan” (2:13-cv-02174 dkt 27-1 p7; dkt 27-5) funding ("suggestive" Mr. Milam via Skype 14Dec12, available to Milam County etc but NZ n/a)
■ "Approved" [not "suggested" WFM019226] vendor "Pacific Northwest and Northern California, Mid-Atlantic, Southwest, and Rocky Mountain…“global” distribution" (2:13-cv-02174 dkt26 id4)
■ A NON-"10" with 15 Whole Foods (WFM) loaded SKU's (10-12pk cookies up to 5; 1-3pk cookies x 4 (PN, NC only); global cookies x 3; global (& MA) jams x 3). Where SKU's sold in the 19% "Prepared foods and bakery" (ref: 2:13-cv-02174 dkt 27-1). Hence an 8% (ie 15/1000) non-"10" vendor of "brand I know…provides the nutrition I'm looking for" (ref: Kantar research) awareness by "WFMI Leadership Team" (ref: 2:13-cv-02174 dkt 27-7; dkt 26-5) prior to "EatRight America" mark "start[ed] using...[in] January 20, 2010" (ref: 880 F.3d 1109 (2018)). [NB. SKU's excludes outer, shipped to store]
■ With NO signed "WFM Vendor…NDA" (NON-DISCLOSURE AGREEMENT) including an only in WFM's interest clause ("Title: VP, Global Purchasing-Perishables" Rev. date 18Dec06, Created date 26Feb07 post OATS, received date 6May09) oddity [Old Norse oddi point, angle]
■ Online shop, in operation since at least 2001
■ With "no brokerage services…performed" for WFM stores [360 U.S. 55 (1959)]
■ WFMI the exception "exceptional" in "Motion for Attorney Fees" [WFMSI, WFMPN] 2:13-cv-02174 dkt 126 "denied"
■ EATRIGHT® acquired distinctiveness section 2(f)” USPTO serial Nos. 77470886 and 77471111 (9May08); section 2(f) Robinson-Patman Act “buyer liability”
■ Class 5 with BROAD "foods adapted for medical purposes" incontestable registration(s). Where "barriers to entry in this space are high…research is expensive…as is [NZFS MPI "high risk" level (cert. 2699)] approval process" (ref: footnote 315 "Are We Running Out Of Trademarks?" pub. Feb18 by Fromer et al [Frommer et al LLP 2:13-cv-02174 dkt 1 to dkt 24]
■ NAPCS code 31256 “Exclusive rights” for “EAT RIGHT, EAT-RIGHT, EATRIGHT…contemporaneous [a. belonging to, dating from] worldwide use” in “most important” [trademark] class 5 c/- highly "congested" class 9 electronic goods (USPTO 85486284), IC 35, 41, 42, 16 and 25
Inconvenient data (v): “Lookalike private label products…a threat to healthy manufacturer competition: (1) revenue squeeze, (2) brand dilution, (3) innovation reduction, (4) packaging change waste, (5) secondary brands elimination, and (6) diversion of advertising (e.g. Phillip et al.,)…reluctan[ce] to legally fight against the retailer copycats, in the fear of being delisted or losing shelf space (Sethuraman & Raju, 2012)” (ref: The Competition Effects of Lookalike Private Label Products by Paul W. Dobson and Li Zhou). Where lazy (adj. indolent, sluggish, slothful (sloth bear; melursus ursinus 2:13-cv-02174 dkt 32-5 “bears”)) duopoloies and oligopolies impose a "sloth" (ref: 603 F.2d 263 (1979)) tax [L taxo censure] on non-"10". The NON-"10" manufacturing suppliers providing [endangered] innovation, energy and resilience [ref: Operation Dynamo (L dunamai have power), little ships of Dunkirk, “miracle” (L mirus wonderful)] in lopsided confinement. Gol’conda n. Mine of wealth (lit. or fig.); gaol, jail n. (without a) confinement in; conda (n. cord, thread); Gol’iath n. Giant; gol’uptious a. Delicious (esp. of food) (ref: Oxford Dictionary 4th ed.)
Inconvenient data (vi): When litigation was reasonably foreseeable, Oct’11, a copy of USPTO TTAB 91202219 proceedings was sent to "Chris" Graff (2:13-cv-02174 dkt 27-16 id 17 p9) AND "Roberta" Lang (2:13-cv-02174 dkt 27-6 p4 "Governing People...ROBERTA LANG [^^^^])". Where nearly all USPTO applications and specimens, prior to early 2017, 18 U.S.C. Section 1001 signatory declaration by “Roberta Lang, President” eg application 85170215 5Nov10, application 76503973 2Apr03. However, from Mar’17 till at least mid '20, nearly all USPTO applications &/or section 8&9 declarations (eg registration 3253018) were changed to “Albert Percival, President”. However, there was one notable exception 28Apr17 USPTO 87430418 18 U.S.C. Section 1001 signatory declaration “Christopher L. Graff, Attorney of record, Texas bar member”.
- [^] Keywords: Whole Foods Market Inc.; Margaret Wittenberg; launched; prepared foods.
Austin Business Journal (pub. 10Jan11)
- [^^] 'Food' applies to almost anything a human being might ingest—baby formula, candy, supplements, booze, even plain old bottled water.
FDA wants to regulate Amazon’s fulfillment centers as food facilities (by Joe Fassler pub. 10Apr14)
- [^^^] Problem 139662: US sewage sludge contains 'high concentrations of Polybromodiphenyl ethers (PBDEs)'; Problem 142785: 'INAPPROPRIATE transfer of technology…multinational who controls key technological factors…becomes a COMPETITOR in technology transfe
[emphasis added] ref: UIA Encyclopedia of World Problems & Human Potential
- [^^^^] 'Mailing Address: ATTN: TAX TEAM; Governing People: ALBERT PERCIVAL et al (2:13-cv-02174 dkt 27-6 p4)
International scheme to tax billionaires’ wealth technically feasible, study finds (pub. 25Jun24)
- 'Why this dominance is especially noteworthy is because…99% of Amazon Prime subscribers do NOT check other sites prices! Wow'.
Why Amazon Buying WholeFoods Will Attract Serious Antitrust Scrutiny by Scott Cleland (pub. 16Jun17)
- 'The real interest is in two things: first, the treasure trove of consumer DATA that comes with this acquisition; and second, Whole Foods’ PRIVATE brand'
Amazon's Acquisition Of Whole Foods Is About Two Things by Greg Petro (pub. 2Aug17)
- Grocery stores include incontestables and contestables. Where decreasing # of innovations is REAL.
Bayly calls for ComCom to be ‘courageous litigator’ (pub. 22Jun24)