We use cookies to improve your experience on our site and to show you personalised advertising. 20-2 at ¶ 6; Kluttz Decl. Ashley Furniture Industries, Inc. v. SanGiacomo N.A. The Burlington plant remains the sole production facility, where over 200 full-time workers are employed. Company records indicate that the brand was first introduced in 1954 by what was then Swanson's Cookie Co.[1] The company pioneered the retail sale of packaged "soft" cookies, which, though having a shorter shelf life, were moister and were perceived by consumers as closer to "home baked" than most other commercial cookies of the day. [Id. Lance sues Voortman Cookies . 2d 615 (1992) (quoting John H. Harland Co. v. Clarke Checks, Inc., 711 F.2d 966, 980 (11th Cir.1983)). 11-2 at 9]. Crème wafers and sugar-free cookies each account for about 39% of product sales, with specialty cookies making up the remaining 22% of sales. United States District Court, W.D. 16 at 2-5]. At the time of the sale, Mr. Callahan said Superior, while a high-performing business for Hostess since its acquisition in 2016, no longer fit into the company’s core competencies and pillars for growth. In the present case, the Archway packaging trade dress includes the following elements: red horizontal stripes on the upper and lower portions of the package outside the central label; two tones of red used as background and accent colors; gold trim on banners and other graphic elements; white lettering with gold borders; a gold-trimmed bright red banner across the top edge of the main label, notched around a medallion displaying the brand name; a light-colored background with white and light yellow gradients radiating from behind the logo medallion in a sunbeam effect; and photographs of portions of three cookies arranged against the left, right and bottom sides of the main label. Providing additional highlights of the transaction, Mr. Callahan said the acquisition provides “an attractive entry point into the adjacent wafer and cookie segment with the No. Accordingly, an injunction shall be entered prohibiting Voortman from further infringing the Archway trade dress by marketing the Voortman Package. 2d 58 (1983) (per curiam)). “Importantly, we expect our category management expertise at retail to also drive Voortman’s presence in key measured channels.”. Approximately 74% of Voortman’s sales are generated in the United States, with 21% of sales in Canada and 5% in other countries. [Carter Decl., Doc. Co., 550 F.2d 189 (4th Cir.1977), which requires a court to consider the following four elements: "(1) the likelihood of irreparable harm to the plaintiff if the preliminary injunction is denied, (2) the likelihood of harm to the defendant if the injunction is granted, (3) the likelihood that the plaintiff will succeed on the merits, and (4) the public interest." [Doc. In his Declaration, Kluttz states that, in conjunction with the Asset Purchase Agreement between Archway and Lance, Archway executed an Assignment of Trademarks, which assigned to Lance all of Archway's "registered and unregistered domestic service marks, trademarks, trade dress, service mark applications, trademark applications, trade dress applications and trade names. Most notably, the Modified Voortman Package does not contain a ribbon-like scroll in the center panel displaying the variety of the product, which is a distinctive feature of the Archway trade dress. Law Project, a federally-recognized 501(c)(3) non-profit. Do not under any circumstance buy one of these Routes unless you have money that you just need to donate to Charity. “The rating also reflects Hostess’ well-known portfolio of snack cake brands, high profit margins, good cash flows and very good liquidity. Having found that there is a likelihood of irreparable harm to Lance in the absence of an injunction, the Court now must consider the likelihood of harm to Voortman if an injunction is granted. [2] "Trade dress" consists of "the total image of the product, and may include features such as size, shape, color or color combinations, texture, graphics, or even particular sales techniques." 8]; and the Plaintiff's Motion with Consent for Leave to File Additional Evidence in Support of Motion for Preliminary Injunction [Doc. Mr. Callahan said Voortman currently generates most of its sales in traditional food and mass retailer channels within the United States, primarily because it has been working with an independent distributor model. § 1125(a), for false designation of origin; (2) common law trademark infringement and unfair competition; and (3) violations of the Unfair and Deceptive Trade Practices Act, N.C. Gen.Stat. [Voortman Decl., Doc. This was a hard lesson for me & my Family. When I went there they said that before quitting I must pay out $3000. (citations and internal quotation marks omitted) If, however, the balance of hardships is substantially equal between the parties, "then `the probability of success begins to assume real significance, and interim relief is more likely to require a clear showing of a *431 likelihood of success.'" Oatmeal and oatmeal raisin cookies in the *430 Voortman Package have been and are still being offered and sold in retail stores in this judicial district, as well as elsewhere in the United States. Lyons, 243 F.3d at 800 (quoting United States v. W.T. Scotts Co. v. United Industries Corp., 315 F.3d 264, 271 (4th Cir.2002) (quoting Direx Israel, Ltd. v. Breakthrough Med. Hostess finalizes deal for wafer and cookie maker, McDonald’s sets stage for continued momentum, Hostess has innovation plans for breakfast, Voortman, Conagra sets strategic course for snacks growth, Plant-based oils and fats: Selecting the right one for your plant-based meat application, Dow index closes above 30,000 points for first time, Ten trends emerging in the aftermath of COVID-19, Slideshow: New products from PepsiCo, Remedy Organics, Uncle Matt’s. 1998) (recognizing public interest in preventing confusion and mistake arising from misleading marks). 2d 424, Docket Number: Bad company to work for. [Id. . [Kluttz Decl., Doc. Ashley Furniture, 187 F.3d at 373. Things were not going well, and I spent more money on fuel than I made money. Defendant Voortman has been a longtime direct competitor of Archway, selling packaged cookies under its Voortman brand. In light of the Assignment of Trademarks executed by Archway, Voortman's argument that Lance does not own the unregistered trade dress at issue must be rejected.