Local manufacturer of gluten-free foods sues California company for trademark infringement


BRATTLEBORO -- A local company recognized around the country for its gluten-free products has filed a trademark infringement lawsuit against a California company.

According to documents filed in U.S. District Court for the District of Vermont, Against The Grain Gourmet Foods, located in Brattleboro, is asking the federal court to order Against All Grain to abandon all claims to the name.

The lawsuit, which was filed on Oct. 11, alleges the use of Against All Grain by the defendants "is likely to cause confusion, to cause mistake, or to deceive and therefore constitutes infringement of Plaintiff's federally registered trademark ..."

Attorneys for Against The Grain, from the law firm of Downs Rachlin Martin, contend the defendants are using a website and Facebook page and have published a cookbook of gluten-free recipes using their Against All Grain marks.

Against The Grain has manufactured gluten-free food products from its facility in the Book Press on Putney Road since it was opened in November 2006 by Thomas and Nancy Cain. It received a trademark for its logo and name in June of 2008. It also received a trademark for "Against The Grain The Gluten Free Gourmet" in July 2008.

And in January 2012, Against The Grain filed an application with the USPTO "to identify gluten-free bakery shops and other retail store services featuring gluten-free baked goods." In January of this year, Against The Grain filed another application with the USPTO "to identify cookbooks, kitchen utensils, chocolate, candy and other confections."

In the court documents, Downs Rachlin Martin state Nancy Cain is currently in the process of producing a cook book of gluten-free recipes, with an expected distribution date of October 2014.

When the Cains opened Against The Grain, they were the only two employees of the privately-held company. Today, the Cains employ 45 people.

The facility is not only gluten free, it's also nut free. There they produce baguettes, rolls, bagels, pizza crusts and pizza. Against The Grain sells its products locally and in national chains such as Whole Foods. But it wasn't enough for the Cains to produce a gluten-free product. They also believed in supporting the local economy and family farms, as well as avoiding the industrialization of food and eliminating additives.

In the court documents, attorneys for Against The Grain contend Against All Grain's alleged infringements have devalued Against The Grain's brand and will confuse consumers, some of whom might assume there is a relationship between the two companies.

"(Against All Grain's) infringing acts will permit (them) to capitalize on the strength of (Against The Grain's) success, goodwill, and reputation in promoting its own products."

On Aug. 27, Against All Grain filed an application with the U.S. Patent and Trademark Office "to identify downloadable electronic books in the field of food and drink, cook books, and on-line journals, namely, blogs featuring food and drink." On Sept. 10, Against The Grain sent an cease-and-desist letter to Against All Grain, but to no avail.

The attorneys claim Against All Grain's use of the mark is an infringement of Against The Grain's federal trademark, and its "wrongful acts have permitted or will permit it to make sales and profits on the strength of (Against The Grain's) substantial advertising, sales, consumer recognition and goodwill."

In its request for relief, the attorneys are asking the court to "permanently restrain and enjoin" the defendant from the use of Against All Grain as a trademark in any form, whether that's on its website, as a domain name or on a cookbook.

The attorneys are also asking the court to order Against All Grain to abandon its application before the USPTO.

In addition, they are asking for an accounting of Against All Grain's profits and a rewarding to Against The Grain of all damages "as a result of (Against The Grain's) unlawful conduct ..."

The attorneys are also asking the court to award costs and attorneys' fees. Attorneys for Against The Grain had no comment at this time.

Bob Audette can be reached at raudette@reformer.com, or at 802-254-2311, ext. 160. Follow Bob on Twitter @audette.reformer.


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