Campbell Soup Co v. Midwest Processing - Trademark Unsaleable

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IN THE UNITED STATES DISTRICT COURT FORTHE MIDDLE DISTRICT OF ALABAMA

SOUTHERN DIVISION

CAMPBELL SOUP COMPANY; )CSC BRANDS LP; )CAMPBELL SOUP SUPPLY )COMPANY LLC; and CAMPBELL )SALES COMPANY, )

)Plaintiffs, )

)vs. ) Civil Action No.: 1:14-cv-00608

)MIDWEST PROCESSING, LLC; )DEXTER JORGENSEN, individually, )and doing business as Midwest )Processing, LLC; RICHARD TATE, )individually, and doing business as )Tate Grocery, Inc.; TATE GROCERY, )INC.; and GOLDEN VIEW )LOGISTICS, INC., )

)Defendants. )

VERIFIED AMENDED COMPLAINT

Plaintiffs Campbell Soup Company (“Campbell Soup”), CSC Brands LP (“CSC

Brands”), Campbell Soup Supply Company LLC (“CSSC”), and Campbell Sales Company

(“Campbell Sales”) (collectively “Plaintiffs” or “Campbell”), by and through their undersigned

counsel, hereby bring this Verified Amended Complaint (“Amended Complaint”) against the

Defendants. In support thereof, Plaintiffs state as follows:

NATURE OF THE CASE

1. For more than 145 years, Campbell has provided consumers with soups and other

foods, including beverage and sauce products. Campbell has invested many millions of dollars

in developing and protecting its reputation as a trusted source of these products. Campbell’s

famous red and white soup can label, including the script trademark, its V8 line of beverage

Case 1:14-cv-00608-WKW-TFM Document 4 Filed 07/11/14 Page 1 of 27

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products, its Prego Italian sauce products, its Swanson broth and stock products, and its

SpaghettiOs branded products have become known throughout the world as symbols of

Campbell’s reputation. Trademarks and trade dress associated with these brands have acquired

enormous goodwill in the United States and worldwide, and trademarks associated with these

products are also registered with the United States Patent and Trademark Office.

2. As part of its quality control process, Campbell at times deems certain products at

its production facilities unfit for sale or distribution to consumers (the “Unsalable Campbell

Products”). Products can be deemed as Unsalable Campbell Products for a multitude of reasons

including, inter alia, expiration of the product quality date or damage to the product containers.

Unsalable Campbell Products are tagged for destruction, and Campbell makes arrangements with

third party entities for such destruction.

3. Defendant Midwest Processing, LLC, was responsible for the ultimate destruction

of some Unsalable Campbell Products. Those Unsalable Campbell Products were to be

delivered to Midwest Processing, LLC’s Burbank, South Dakota facility for destruction and/or

recycling in the form of food for farm animals. Remarkably, instead of destroying or recycling

the Unsalable Campbell Products for consumption by farm animals, Midwest Processing, LLC

and Dexter Jorgensen, in concert with Golden View Logistics, Inc., Tate Grocery, Inc., and

Richard Tate, diverted the Unsalable Campbell Products to Hartford, Alabama, where the

Unsalable Campbell Products were eventually sold to consumers. In furtherance of this scheme,

and in an effort to conceal the scheme from Campbell, Midwest Processing, LLC, with the

complicity of all defendants, caused false “Certificate[s] of Disposal” to be delivered to

Campbell.

4. Specifically, Tate Grocery, Inc., through its agents, principals, and employees


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(including, but not limited to Richard Tate), purchased the Unsalable Campbell Products from

Midwest Processing, LLC and knowingly sold and continues to sell Unsalable Campbell

Products to customers of Tate Grocery, Inc. Unsalable Campbell Products diverted under the

defendants’ scheme and sold by Tate Grocery, Inc. include Campbell’s branded-soup products,

as well as V8, Prego, Swanson, and SpaghettiOs branded products. Defendants actively

concealed this scheme from Campbell.

5. Defendants’ diversion scheme effects an egregious, unauthorized distribution

and/or sale of consumer food products, dilutes Campbell’s valuable trademark and trade dress

rights, unfairly trades upon the public recognition of Campbell’s trademarks and trade dress, may

lead others to conclude that they may engage in similar conduct with impunity, constitutes unfair

competition, and confuses purchasers into concluding that the items were authorized for

distribution and/or sale by Campbell and/or sold under Campbell’s direction.

6. This Amended Complaint seeks injunctive and monetary relief against the

Defendants who have profited and participated in such illegal, willful, and deceptive activity.

PARTIES

7. Plaintiff Campbell Soup Company is incorporated under the laws of the State of

New Jersey, with its principal place of business at 1 Campbell Place, Camden, New Jersey

08103-1799.

8. Plaintiff CSC Brands LP is a Delaware Limited Partnership having a place of

business at 1 Campbell Place, Camden, New Jersey 08103-1799. CSC Brands is the owner of

the trademark registrations for the trademarks at issue in this case and is licensor to its affiliate

company, Campbell Soup.

9. Plaintiff Campbell Soup Supply Company LLC is a Delaware limited liability


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company, with its principal place of business at 1 Campbell Place, Camden, New Jersey 08103-

1799.

10. Plaintiff Campbell Sales Company is incorporated under the laws of the State of

New Jersey, with its principal place of business at 1 Campbell Place, Camden, New Jersey

08103-1799.

11. Midwest Processing, LLC (“Midwest”) is a South Dakota limited liability

company, with its principal place of business at 47033 Burbank Road, Burbank, South Dakota

57010. Midwest maintains or otherwise uses a warehouse in Hartford, Alabama.

12. Upon information and belief, Defendant Dexter Jorgensen (“Jorgensen”) is a

resident of South Dakota with offices at 47033 Burbank Road, Burbank, South Dakota 57010,

and is a principal, member, and/or manager of Midwest. Jorgenson is the alter-ego of Midwest.

13. Defendant Golden View Logistics, Inc. (“Golden View”) is incorporated under

the laws of South Dakota, with its principal place of business located at 3285 477th Street, Elk

Point, South Dakota 57025-6804.

14. Defendant Tate Grocery, Inc. (“Tate Grocery”) is incorporated under the laws of

Alabama, with its principal place of business located at 300 East Mill Street, Hartford, Alabama

36344.

15. Upon information and belief, Defendant Richard Tate (“Tate”) is a resident of

Alabama with offices at 300 East Mill Street, Hartford, Alabama 36344 and is a principal,

manager, officer and/or director of Tate Grocery. Tate is the alter-ego of Tate Grocery.1

JURISDICTION AND VENUE

16. This Court has original jurisdiction over the instant action pursuant to 28 U.S.C.

§§ 1331 and 1338, with reference to 15 U.S.C. § 1125(a), 15 U.S.C. § 1114(1), and 15 U.S.C. §

1 All Defendants collectively are referred to herein as “Defendants.”


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1125(c). This Court has supplemental jurisdiction over plaintiffs’ common-law claims pursuant

to 28 U.S.C. § 1367(a).

17. Personal jurisdiction exists over each respective Defendant because, through each

Defendant’s conduct and participation in the scheme to divert Unsalable Campbell Products to

Alabama for sale to consumers as set forth in detail below, each such Defendant has engaged in

substantial activities within the State of Alabama and within the Middle District of Alabama.

Moreover, as a result of this diversion scheme, each Defendant has established sufficient

minimum contacts with the State of Alabama to satisfy the requirements of Due Process.

Additionally, each respective Defendant’s intentional torts targeted Campbell in Alabama.

18. Venue is proper in this judicial district pursuant to 28 U.S.C. § 1391(b)(2) or,

alternatively, 28 U.S.C. § 1391(b)(3).

GENERAL ALLEGATIONS

A. Campbell Products and Property Rights

19. Campbell, through its affiliates, is the world’s leading manufacturer of soup.

Campbell Soup has built a large and profitable business as a result of the high quality of its soup

products.

20. Campbell has invested many millions of dollars over decades in developing and

protecting its reputation as a trusted source of these products.

21. Since at least as early as 1898, Campbell has used, and to this day continues to

use, a number of distinctive and nonfunctional trade dresses, including the distinctive and

nonfunctional trade dress of Campbell’s famous soup and related products.

22. In the case of the “Icon” Campbell Trade Dress, the border of the red and white

portions of the label is a straight line. This Icon Campbell Trade Dress is currently in use and


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has been in use since 1898. While the specific execution of the Icon Campbell Trade Dress has

evolved and been modernized over the years, from the time of its adoption in the late 1800’s, it

has consistently included prominent use of a two-color layout, primarily red and white, in

separate, horizontally articulated sections of the label and text, including a distinctive upper case

“C” as the first letter of the brand name in the distinctive Campbell Soup script font in the upper

portion of the can. An image of the Icon Campbell Trade Dress is attached hereto in Exhibit A.

23. In the case of the Campbell “Wave” Trade Dress, such dress incorporates a gold-

bordered wave element to horizontally separate the articulated red and white sections of the

label. The Campbell Wave Trade Dress has been in use since June 2010. An image of the

Campbell Wave Trade Dress is attached hereto in Exhibit A.

24. For the “V8” Trade Dress, while the specific execution of the V8 Trade Dress has

evolved and modernized over the years, from the time of its adoption in the early 1930’s, it has

consistently included a distinctive uppercase letter V adjacent to the numeral “8” within a

circular logo that has a green border trim. Further, this circular logo is encompassed within a

label bearing pictures of the ingredients comprising the beverage. An image of the V8 Campbell

Trade Dress is attached hereto in Exhibit A.

25. For the “Prego” Trade Dress, while the specific execution of the Prego Trade

Dress has evolved and modernized over the years, from the time of its adoption in the early

1980’s, it has consistently included the phrase “Prego” in black letters and with the “P”

capitalized. The phrase is consistently placed against a light-colored background. An image of

the Prego Trade Dress is attached hereto in Exhibit A.

26. For the “Swanson” Trade Dress, while the specific execution of the Swanson

Trade Dress has evolved and modernized over the years, from the time of its adoption, it has


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included a red uppercase letter “S” superimposed in the middle of the “S” by a cylindrically-

shaped logo with red border trim that has rounded ends and is oriented with the right end slightly

higher than the left end. The phrase “SWANSON,” in red uppercase letters, has consistently

appeared inside this trade dress. An image of the Swanson Trade Dress is attached hereto in

Exhibit A.

27. For the “SpaghettiOs” Trade Dress, while the specific execution of the

SpaghettiOs Trade Dress has evolved and modernized over the years, from the time of its

adoption in the mid 1960’s, it has consistently included the phrase “SPAGHETTIOS” in all

capital letters in black font with a two-tone yellow border trim that is darker on the periphery of

the border. The “O” in the phrase is the sole exception, as it appears in a yellow font that is

larger than the other letters. More specifically, the “O” resembles the distinct circular noodle

found in the product. An image of the SpaghettiOs Trade Dress is attached hereto in Exhibit A.

28. Unless otherwise apparent from the context, the Icon Campbell Trade Dress,

Campbell Wave Trade Dress, V8 Trade Dress, Prego Trade Dress, Swanson Trade Dress, and

SpaghettiOs Trade Dress shall be collectively referred to herein as the “Campbell Trade Dress.”

29. In addition to the rights that exist by virtue of the Campbell Trade Dress, CSC

Brands obtained Federal Trademark Registrations relating to the Campbell’s, V8, Prego,

Swanson, and SpaghettiOs brands. Copies of relevant trademark registrations are attached hereto

as Exhibit B, and are collectively referred to herein as the “Campbell Trademarks.”

30. The Campbell Trade Dress and Campbell Trademarks are famous throughout the

world as symbols of Campbell’s reputation and the quality of its goods, and have garnered

expansive goodwill. Campbell has expended an enormous amount of resources over decades in

promoting its goods in connection with the Campbell Trade Dress and Campbell Trademarks.


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31. The Campbell Trade Dress and Campbell Trademarks, when used in connection

with Campbell products, are entitled to immediate and strong protection against unfair

competition, infringement, dilution, and injury.

B. Defendants’ Diversion Scheme

32. To protect public health and Campbell’s reputation associated with its products

and the Campbell Trade Dress and Campbell Trademarks, Campbell expends and continues to

expend substantial resources ensuring the quality of its products sold to consumers.

33. Part of this quality control process includes Campbell’s identification of

Unsalable Campbell Products—products in its manufacturing facilities that do not meet

Campbell standards for distribution and sales to the public. Products can be deemed Unsalable

Campbell Products with regard to Campbell standards for a multitude of reasons including, inter

alia, expiration of the product quality date or damage to the product containers. Upon

identification of such products, Campbell makes arrangements with third party entities for

destruction of the Unsalable Campbell Products.

34. Campbell made arrangements with a non-party entity to dispose of a portion of

Campbell’s Unsalable Campbell Products. That entity in turn enlisted Defendant Midwest to

destroy those Unsalable Campbell Products, or otherwise to recycle the Unsalable Campbell

Products for consumption by farm animals. These Unsalable Campbell Products were to be

shipped to Midwest’s Burbank, South Dakota facility for destruction or recycling for

consumption by farm animals.

35. However, unknown to Campbell, and without authorization from Campbell,

Defendants Midwest, Jorgensen, Golden View, Tate Grocery, and Tate, all acting in concert,

negligently, wilfully, and/or intentionally arranged for the Unsalable Campbell Products to be


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diverted to Hartford, Alabama for eventual sale to consumers. Defendants were aware that the

Unsalable Campbell Products were designated for destruction and did not meet the quality

standards established by Campbell.

36. In furtherance of the diversion scheme, and in an effort to conceal the diversion

scheme from Campbell, Midwest, with the complicity of Defendants, caused false “Certificate[s]

of Disposal” to be delivered to Campbell, or otherwise was aware that the Certificates of

Disposal would be delivered to Campbell. That is, Midwest, acting individually, in concert with

the other Defendants, and as an agent of the other Defendants pursuant to the diversion scheme,

represented to Campbell that the Unsalable Campbell Products had been destroyed or recycled

when, in reality, the Unsalable Campbell Products were being diverted to Hartford, Alabama for

eventual sale to consumers.

37. Defendant Midwest maintains or otherwise uses a warehouse in Hartford,

Alabama. Unsalable Campbell Products were diverted to this warehouse by Midwest, and

potentially other locations unknown to Campbell at present, in concert with the other

Defendants.

38. Eventually, the Unsalable Campbell Products were transported to Tate Grocery,

also in Hartford, Alabama, and potentially other locations unknown to Campbell at present,

where they are available for sale—and were sold—to consumers. Tate Grocery, through its

agents, principals, and employees (including, but not limited to Richard Tate), purchased or

otherwise acquired the Unsalable Campbell Products from Midwest, and knowingly and

intentionally sold Unsalable Campbell Products to customers of Tate Grocery. Such Unsalable

Campbell Products include Campbell Campbell’s soup products, as well as Campbell’s V8,

Prego, Swanson, and SpaghettiOs branded products. Photographs of some of the Unsalable


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Campbell Products purchased at Tate Grocery on April 28, 2014 are attached hereto as Exhibit

C.

39. Campbell did not authorize Defendants to sell Unsalable Campbell Products.

40. Defendants acted in concert for the unlawful sale and distribution of the Unsalable

Campbell Products in contravention of Campbell’s rights. Each Defendant acted as the agent of

each other Defendant and is vicariously liable for the actions of each other Defendant.

41. This diversion scheme was actively and intentionally concealed from Campbell.

CSSC first discovered the scheme in mid-April 2014 through a shipping document generated by

Defendants to further their diversion scheme (the “Blind Shipment Document”). The Blind

Shipment Document, which was to be concealed from Campbell pursuant to the diversion

scheme, was inadvertently acquired by a CSSC employee. The Blind Shipping Document

indicated that a truckload of Unsalable Campbell Products, which were to be shipped to

Burbank, South Dakota, instead were being diverted to Midwest’s warehouse in Hartford,

Alabama. Remarkably, the Blind Shipping Document indicates that the ultimate destination of

the Unsalable Campbell Products was being actively concealed from Campbell. The driver of

the truck who was responsible for delivering that particular load of Unsalable Campbell Product

to Midwest’s warehouse in Hartford, Alabama further explained to a CSSC employee that he

was familiar with the destination in Alabama, and that he had recently transported other loads of

Campbell products—believed to be Unsalable Campbell Products—to this location. Defendant

Golden View is listed as the billing party on the Blind Shipment Document. Campbell quickly

and thoroughly investigated the matter, uncovering the scheme set forth herein.

42. By way of one example only, Campbell has determined that a 14.5 oz can of

unsalable Campbell’s Beef Gravy purchased from Tate’s Grocery on April 28, 2014 was illegally


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diverted by the Defendants. By way of background, on or about August 14, 2012, Campbell

declared thousands of cases of Campbell’s Beef Gravy produced on that date from a single

Campbell facility, which included the particular can at issue, to be Unsalable Campbell Products

(defined herein as the “Unsalable Beef Gravy Products”, a subcategory of Unsalable Campbell

Products). On or about August 28, 2013, Campbell had two truckloads of the Unsalable Beef

Gravy Products, packed in cases, picked up for transportation to Defendant Midwest’s Burbank,

South Dakota facility for disposal. Defendant Midwest thereafter represented to Campbell

“under penalties of perjury,” in two separate written Certificates of Disposal, one for each

truckload, that the thousands of cases of Unsalable Beef Gravy Products all “ha[d] been

successfully recycled on or before 10-16-13.” The Certificates of Disposal, which are attached

hereto collectively as Exhibit D, each indicate that Defendant Golden View “delivered” the

product. However, based on the April 28, 2014 purchase from Tate’s Grocery noted above,

Midwest clearly did not “recycle” all such Unsalable Beef Gravy Products as it had represented

six months earlier. Instead, all or at least some of the Unsalable Beef Gravy Products were

diverted to Hartford, Alabama for sale to consumers. In fact, upon information and belief,

additional paperwork submitted to Campbell together with Defendant Midwest’s Certificates of

Disposal bears the signature of an employee or agent of Defendant Tate’s Grocery.

43. Moreover, after Campbell uncovered Defendants’ diversion scheme, Campbell’s

investigation into the scheme revealed for the first time that Defendants Jorgensen, Richard Tate,

and Tate Grocery, as well as entities with which Jorgensen allegedly was previously affiliated—

“Jorgensen Farms, Inc.” and “Food Waste Recycling Systems,” were parties to a lawsuit filed by

Energy Brands, Inc. d/b/a Glaceau (the “Glaceau Lawsuit”)2 in which Glaceau alleged a

2 The lawsuit was styled Energy Brands Inc. d/b/a Glaceau v. Jorgensen et al., No. 09-CV-591A (W.D.N.Y. June25, 2011).


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diversion scheme strikingly similar to the scheme at hand. Additionally, Ben Baldwin, who,

upon information and belief, is a principal or affiliate of Defendant Golden View, was named as

a defendant in the Glaceau Lawsuit based on his alleged affiliation with Jorgensen Farms, Inc.

In the Glaceau Lawsuit, which ultimately settled on undisclosed terms, Glaceau alleged that the

defendants in that case engaged in a diversion scheme through which unsalable Glaceau

“vitaminwater” product, which was to be destroyed or recycled, was diverted to Tate Grocery,

among other entities, for eventual sales to consumers. In fact, Defendant Jorgensen admitted

under oath in the Glaceau Lawsuit that he “picked up the vitaminwater from Glaceau and sold it

on the secondary market to Tate Grocery of Hartford, Alabama.” Glaceau further alleged, as in

this case, that Jorgensen submitted false “certificates of destruction” to Glaceau. Apparently

undeterred by the Glaceau Lawsuit, Defendants targeted Campbell through virtually the same

scheme as they allegedly employed against Glaceau.

44. Unless Defendants are enjoined from the unauthorized distribution and sales of

Unsalable Campbell Products, consumers and others familiar with Campbell Products, Campbell

Trade Dress, and Campbell Trademarks will believe that the Unsalable Campbell Products

Defendants have placed in commerce are authorized by Campbell, and that the products meet the

quality standards of Campbell and the Campbell Trade Dress and Campbell Trademarks, when in

fact such products do not meet the quality standards of the Campbell Trade Dress and Campbell

Trademarks. This unauthorized use of the Campbell Trade Dress and Campbell Trademarks can

seriously injure the reputation that Campbell has established for its goods and resulting goodwill,

which will result in a loss of sales and damage to Campbell. These injuries suffered by Campbell

due to Defendants’ conduct cannot be adequately compensated by money damages; therefore,

Campbell has no adequate remedy at law and has suffered irreparable harm.


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45. Defendants have engaged in serious negligent, willful, and/or intentional conduct

involving the unauthorized use, distribution, and sales of Unsalable Campbell Products and the

unauthorized use of Campbell property rights. Defendants’ diversion scheme effects an

egregious, unauthorized distribution and/or sale of consumer food products, dilutes the Campbell

Trademarks and Campbell Trade Dress, unfairly trades upon the public recognition of the

famous Campbell Trade Dress and Campbell Trademarks, may lead others to conclude that they

may engage in similar conduct with impunity, constitutes unfair competition, and confuses

purchasers into concluding that the Unsalable Campbell Products were authorized for

distribution and/or sale by Campbell and/or sold under Campbell’s direction.

COUNT I

All DefendantsFalse Designation of Origin and False or Misleading Description or Representation of Fact

15 U.S.C. § 1125(a)

46. Plaintiffs reallege and incorporate by reference as if fully set forth herein the

allegations contained in paragraphs 1 through 45 above.

47. Defendants, either by their direct sale of Unsalable Campbell Products, by their

control of one or more Defendants, or by their participation in the scheme to sell Unsalable

Campbell Products unlawfully, are directly, contributorily and/or vicariously liable for the acts

complained of herein.

48. Defendants’ unauthorized sale of Unsalable Campbell Products and use of the

Campbell Trade Dress and Campbell Trademarks is and was without authorization by Campbell.

Such use constitutes a false designation of origin and a false or misleading description or

representation of fact, which is likely to cause confusion, mistake, or deception, and constitutes

unfair competition.


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49. Defendants have used the Campbell Trade Dress and Campbell Trademarks in a

manner that is likely to cause the public to believe that the Defendants are authorized resellers of

Campbell products, and/or that the Defendants are otherwise sponsored or approved by, or

affiliated with, Campbell, also constituting unfair competition.

50. Defendants’ actions have been willful, intentional, and with full knowledge of the

false designation of origin and false or misleading description or representation of fact.

51. Defendants’ actions constitute a violation 15 U.S.C. § 1125(a)(1).

52. Plaintiffs have suffered and will suffer great and irreparable injury as a result of

Defendants’ conduct.

53. Plaintiffs have suffered damage as a result of Defendants’ actions in an amount to

be determined at trial.

COUNT II

All DefendantsTrademark Infringement

15 U.S.C. § 1114(1)







56. Defendants’ use of the Campbell Trademarks is and was without authorization by

Campbell. Such use is likely to cause confusion, mistake or deception, and, accordingly,

constitutes trademark infringement.


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57. Defendants have used the Campbell Trademarks in a manner that is likely to

cause the public to believe that the Defendants are authorized resellers of Campbell products,

and/or that the Defendants are otherwise sponsored or approved by, or affiliated with, Campbell,

or that the product designated for destruction met the quality standards associated with the

Campbell Trademarks.

58. Defendants’ actions have been intentional, willful, and with full knowledge of the

trademark infringement.

59. Defendants’ actions constitute a violation of 15 U.S.C. § 1114(1).


Defendants’ conduct.



COUNT III

All DefendantsFalse Advertising Under the Lanham Act § 43(A)

15 U.S.C. § 1125(a)







64. Upon information and belief, Defendants made statements and representations to

consumers and others that Defendants were and/or are affiliated with, or sponsored or approved


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by Campbell and/or that Defendants are authorized resellers of Campbell products. Such

statements and representations were untrue, deceptive, and misleading.

65. Upon information and belief, such statements and representations were made by

Defendants in interstate commerce, and/or otherwise appeared in commercial advertising or

promotion by Defendants.

66. Defendants made such statements and misrepresentations in connection with

representations regarding products, services, and/or commercial activities offered by Defendants

and/or the products, services, and/or commercial activities of Plaintiffs.

67. Defendants’ actions have been willful, intentional, and with full knowledge of the

falsity of their advertisements.

68. Defendants’ actions constitute a violation of 15 U.S.C. § 1125(a).


such false, misleading, and deceptive statements and representations by Defendants.



COUNT IV

All DefendantsDilution

15 U.S.C. § 1125(c)



72. Campbell has expended millions of dollars extensively and continuously

promoting and using the Campbell Trade Dress and Campbell Trademarks both in the United

States and throughout the world. The Campbell Trade Dress and Campbell Trademarks have


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become famous and well-known symbols of Campbell’s goods and services throughout the

United States and the world.

73. Defendants are making commercial use of the Campbell Trade Dress and

Campbell Trademarks in a manner that dilutes and is likely to tarnish and degrade the positive

associations and prestigious connotations of the Campbell Trade Dress and Campbell

Trademarks, and otherwise lessening the capacity of the Campbell Trade Dress and Campbell

Trademarks to identify and distinguish goods and services.

74. Defendants’ actions demonstrate an intentional, willful, and malicious intent to

trade on the goodwill associated with the Campbell Trade Dress and Campbell Trademarks or to

cause dilution of the Campbell Trade Dress and Campbell Trademarks, to the great and

irreparable injury of Campbell’s brands.

75. Defendants’ actions constitute a violation of 15 U.S.C. § 1125(c).

76. Plaintiffs have suffered and will suffer damage as a result of Defendants’ actions

in an amount to be determined at trial.

COUNT V

All DefendantsDilution

Ala. Code § 8-12-17



78. Campbell has expended millions of dollars extensively and continuously

promoting and using the Campbell Trade Dress and Campbell Trademarks in the State of

Alabama, the United States, and throughout the world. The Campbell Trade Dress and Campbell

Trademarks have become famous and well-known symbols of Campbell’s goods and services


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throughout the United States, the world, and the State of Alabama.

79. Defendants are making commercial use of the Campbell Trade Dress and

Campbell Trademarks in a manner that dilutes and is likely to tarnish and degrade the positive

associations and prestigious connotations of the Campbell Trade Dress and Campbell

Trademarks, and otherwise lessening the capacity of the Campbell Trade Dress and Campbell

Trademarks to identify and distinguish goods and services.

80. Defendants’ actions demonstrate an intentional, willful, and malicious intent to

trade on the goodwill associated with the Campbell Trade Dress and Campbell Trademarks or to

cause dilution of the Campbell Trade Dress and Campbell Trademarks, to the great and

irreparable injury of the Plaintiffs.

81. Defendants’ actions constitute a violation Ala. Code § 8-12-17.



COUNT VI

All DefendantsCommon-Law Infringement







85. Defendants’ acts constitute common-law infringement.



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COUNT VII

All DefendantsFraud











89. By way of one example only, Campbell has determined that a 14.5 oz can of

unsalable Campbell’s Beef Gravy purchased from Tate’s Grocery on April 28, 2014 was illegally

diverted by the Defendants. By way of background, on or about August 14, 2012, Campbell

declared thousands of cases of Campbell’s Beef Gravy produced on that date from a single

Campbell facility, which included the particular can at issue, to be Unsalable Campbell Products.

On or about August 28, 2013, Campbell had two truckloads of the Unsalable Beef Gravy

Products, packed in cases, picked up for transportation to Defendant Midwest’s Burbank, South

Dakota facility for disposal. Defendant Midwest thereafter represented to Campbell “under

penalties of perjury,” in two separate written Certificates of Disposal, one for each truckload,


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that the thousands of cases of Unsalable Beef Gravy Products all “ha[d] been successfully

recycled on or before 10-16-13.” The Certificates of Disposal, which are attached hereto

collectively as Exhibit D, each indicate that Defendant Golden View “delivered” the product.

However, based on the April 28, 2014 purchase from Tate’s Grocery noted above, Midwest

clearly did not “recycle” all such Unsalable Beef Gravy Products as it had represented six

months earlier. Instead, all or at least some of the Unsalable Beef Gravy Products were diverted

to Hartford, Alabama for sale to consumers. In fact, upon information and belief, additional

paperwork submitted to Campbell together with Defendant Midwest’s Certificates of Disposal

bears the signature of an employee or agent of Defendant Tate’s Grocery.

90. Other Certificates of Disposal, believed to be fraudulent, were transmitted to

Campbell from in or about 2009 to 2014.

91. The misrepresentations made in the Certificates of Disposal were material to

Campbell in that had Campbell known that the Unsalable Campbell Products were being

diverted to consumers, Campbell would have not entrusted the Unsalable Campbell Products to

be handled by any Defendant.

92. Campbell reasonably relied upon the representation in the Certificates of Disposal

that the Unsalable Campbell Products had been destroyed or otherwise recycled.

93. Because Midwest was acting in concert with the other Defendants and as an agent

of each other Defendant in furtherance of the diversion scheme, all Defendants are vicariously

liable for Midwest’s fraudulent misrepresentations.

94. Defendants’ misrepresentations proximately caused Campbell to suffer damages


95. Defendants, or a combination of their principals, agents, and affiliates, have


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engaged in a pattern and practice of fraudulent activity relating to similar diversion schemes

involving unsalable food products, as evidenced, in part, by the allegations in the Glaceau

Lawsuit.

COUNT VIII

All DefendantsNegligence, Gross Negligence, and/or Wantonness



97. Defendants owed a duty to Campbell to ensure that the Unsalable Campbell

Products were destroyed or recycled.

98. Defendants breached this duty by diverting or otherwise allowing the diversion of

the Unsalable Campbell Products to Hartford, Alabama for eventual sale to consumers.

99. Defendants’ conduct was negligent, or, alternatively, was carried out with

knowledge of the circumstances and with a reckless disregard of the consequences.

100. Defendants’ breaches of duty proximately caused Campbell to suffer damages in

an amount to be determined at trial.

COUNT IX

All DefendantsCivil Conspiracy



102. Defendants were aware that the Unsalable Campbell Products were designated for

destruction and did not meet the quality standards established by Campbell. Nevertheless,

Defendants Midwest, Jorgensen, Golden View, Tate Grocery, and Tate, all acting in concert and


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pursuant to a common plan, negligently, wilfully, and/or intentionally arranged for the Unsalable

Campbell Products to be diverted to Hartford, Alabama for eventual sale to consumers.









104. Defendants’ conspiracy proximately caused Plaintiffs to suffer damages in an

amount to be determined at trial.

WHEREFORE, Plaintiffs demand judgment against Defendants, jointly and

severally, and respectfully request:

a. A preliminary and permanent injunction against each Defendant and its owners,

directors, officers, employees, agents, representatives, licensees, and affiliates, enjoining and

restraining the use of the Campbell Trade Dress and Campbell Trademarks or any colorable

imitation thereof, including, but not limited to, the use of the Campbell Trade Dress and

Campbell Trademarks on websites, social media, metatags, in sponsored links, and in advertising

or marketing materials.

b. A preliminary and permanent injunction against each Defendant and its owners,


restraining the unauthorized distribution of Campbell products.


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c. A preliminary and permanent injunction against each Defendant and its owners,


restraining them from representing or creating the impression that they are authorized

distributors or resellers of Campbell products.

d. An accounting and disgorgement of the revenues and profits received by each

Defendant relating to its or his sales using the Campbell Trade Dress and Campbell Trademarks

and/or unauthorized sales of Campbell products.

e. An Order compelling Defendants to recall all Unsalable Campbell Products, at

Defendants’ expense.

f. An Order compelling Defendants to deliver to Campbell, at Defendants’ expense,

all materials and goods bearing the Campbell Trade Dress and Campbell Trademarks.

g. An award of monetary damages against each Defendant, jointly and severally, for

the injuries sustained by Campbell as a result of Defendants’ fraudulent representations, unfair

competition, trademark infringement, false designation of origin and false or misleading

description or representation of fact, false advertising under the Lanham Act, dilution of the

Campbell Trademarks and Campbell Trade Dress, and all other conduct alleged in this Amended

Complaint.

h. An award of treble damages against the Defendants for damages sustained by

Campbell as a result of the Defendants’ willful trademark infringement, false designation of

origin and false designation of origin and false or misleading description or representation of

fact, false advertising under the Lanham Act, and dilution of the Campbell Trademarks and

Campbell Trade Dress under 15 U.S.C. § 1117.

i. Costs and disbursements incurred in the prosecution of this action, including


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reasonable attorneys’ fees, as provided under common law and 15 U.S.C. § 1117.

j. Statutory damages, punitive damages, and exemplary damages.

k. Such other and further relief as the Court deems just, proper, and appropriate to

protect the rights of Plaintiffs.

DATED: July 11, 2014

____________________________W. Edward Bailey (9729-Y82W)Alvin L. (“Peck”) Fox (FOX005)Thomas W. Thagard III (THA006)J. Ethan McDaniel (MCD065)

Attorneys for Campbell SoupCompany, CSC Brands LP,Campbell Soup Supply CompanyLLC, and Campbell Sales Company

OF COUNSEL:

Maynard, Cooper & Gale P.C.1901 Sixth Avenue North2400 Regions/Harbert PlazaBirmingham, AL 35203-2618205-254-1000




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CERTIFICATE OF SERVICE

I hereby certify that I have served a copy of the foregoing document by Certified U.S.

Mail on this the 11th day of July, 2014 to the following:

Midwest Processing, LLC47033 Burbank RoadBurbank, SD 57010

Dexter Jorgensen47033 Burbank RoadBurbank, SD 57010

Golden View Logistics, Inc.3285 477th StreetElk Point, SD 57025

Tate Grocery, Inc.300 East Mill StreetHartford, AL 36344

Richard Tate300 East Mill StreetHartford, AL 36344

__________________________

Of Counsel


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Campbell Soup Co v. Midwest Processing - Trademark Unsaleable

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