memorandum of law in support of …...plaintiff conopco, inc., doing business as unilever...

UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY----------------------------------------------------------------------- xCONOPCO, INC., doing business as UNILEVER,

Plaintiff,

-against-

HAMPTON CREEK, INC.,

Defendant.

::::::::::

14 Civ. 06856 (WHW)(CLW)

ECF CASE

Motion Day: December 1, 2014

----------------------------------------------------------------------- x

MEMORANDUM OF LAW IN SUPPORT OF PLAINTIFF’SMOTION FOR A PRELIMINARY INJUNCTION

Bruce P. Keller ([email protected])David H. Bernstein ([email protected])*Michael Potenza ([email protected])Jared I. Kagan ([email protected])*DEBEVOISE & PLIMPTON LLP919 Third AvenueNew York, New York 10022(212) 909-6696 (telephone)(212) 521-7696 (facsimile)

Attorneys for Plaintiff Conopco, Inc., doingbusiness as Unilever* admitted pro hac vice

Dated: New York, New YorkNovember 7, 2014

Case 2:14-cv-06856-WHW-CLW Document 10-23 Filed 11/07/14 of 28 PageID: 198

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TABLE OF CONTENTSPage

Table of Authorities ............................................................................................................. i

PRELIMINARY STATEMENT ........................................................................................ 1

STATEMENT OF FACTS ................................................................................................. 3

I. The Hellmann’s® and Best Foods® Brands of Real Mayonnaise. ........................ 3

II. The Mayonnaise Product Category......................................................................... 4

III. False Labeling and Advertising of Just Mayo ........................................................ 5

IV. Harm to Unilever and Unilever’s Efforts to Resolve the Dispute ........................ 10

ARGUMENT.................................................................................................................... 12

I. The Standard for Relief......................................................................................... 12

II. Unilever Is Likely to Succeed on the Merits of its False AdvertisingClaim..................................................................................................................... 12

A. The Just Mayo Name is Literally False .................................................... 13B. Survey Evidence Demonstrates That The Name Just Mayo Is

Misleading................................................................................................. 14

III. Unilever Will Suffer Irreparable Harm in the Absence of a PreliminaryInjunction. ............................................................................................................. 18

IV. The Balance of Equities Favors an Injunction...................................................... 20

V. The Public Interest Favors an Injunction .............................................................. 21

VI. Unilever Also Is Entitled to Preliminary Relief Under the New JerseyConsumer Fraud Act. ............................................................................................ 22

CONCLUSION................................................................................................................. 23


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TABLE OF AUTHORITIES

CASES

Am. Home Prods. Corp. v. Johnson & Johnson,654 F. Supp. 568 (S.D.N.Y. 1987) ..........................................................................................14

AT&T Co. v. Winback and Conserve Program Inc.,42 F.3d 1421 (3d Cir. 1994).....................................................................................................22

Bracco Diagnostics, Inc. v. Amersham Health, Inc.,627 F. Supp. 2d 384 (D.N.J. 2009) ....................................................................................14, 18

Channel Cos. v. Britton,167 N.J. Super. 417, 400 A.2d 1221 (App. Div. 1979) ...........................................................22

Church & Dwight Co. v. S.C. Johnson & Son, Inc.,873 F. Supp. 893 (D.N.J. 1994) .........................................................................................16, 20

Coach, Inc. v. Paula’s Store Sportswear LLC,Civil Action No. 13–3263 (SRC), 2014 WL 347893 (D.N.J. Jan. 31, 2014)..........................23

Cont’l Wax Corp. v. Fed. Trade Comm’n,330 F.2d 475 (2d Cir. 1964).....................................................................................................14

Feiler v. New Jersey Dental Ass’n,467 A.2d 276 (N.J. Super. Ct. Ch. Div. 1983).........................................................................22

Ferring Pharm., Inc. v. Watson Pharm., Inc.,765 F.3d 205 (3d Cir. 2014).....................................................................................................12

GlaxoSmithKline Consumer Healthcare v. Merix Pharm. Corp.No. Civ. 05-898(DRD), 2005 WL 2230318 (D.N.J. Sept. 13, 2005) ......................................21

Goya Foods, Inc. v. Condal Distribs., Inc.,732 F. Supp. 453 (S.D.N.Y. 1990) ..........................................................................................16

Johnson & Johnson v. GAC Int’l, Inc.,862 F.2d 975 (2d Cir. 1988).....................................................................................................14

Kraft Gen. Foods, Inc. v. Del Monte Corp.,28 U.S.P.Q.2d 1457 (S.D.N.Y. 1993)......................................................................................14


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McNeilab, Inc. v. Am. Home Prods. Corp.,501 F. Supp. 517 (S.D.N.Y. 1980) ..........................................................................................16

Merck Eprova AG v. Gnosis S.P.A.,760 F.3d 247 (2d Cir. 2014).....................................................................................................14

Novartis Consumer Health, Inc. v. Johnson & Johnson-MerckConsumer Pharm. Co.,290 F.3d 578 (3d Cir. 2002)............................................................................................. passim

Opticians Ass’n of Am. v. Indep. Opticians of Am.,920 F.2d 187 (3d Cir. 1990)...............................................................................................20, 21

Pappan Enters., Inc. v. Hardee’s Food Sys., Inc.,143 F.3d 800 (3d Cir. 1998).....................................................................................................21

Reckitt Benckiser Inc. v. Motomco Ltd.,760 F. Supp. 2d 446 (S.D.N.Y. 2011)......................................................................................19

Smithkline Beecham Consumer Healthcare, L.P. v. Johnson & Johnson-MerckConsumer Pharm. Co.,906 F. Supp. 178 (S.D.N.Y. 1995), aff’d, 100 F.3d 943 (2d Cir. 1996) ..................................14

Value Group, Inc. v. Mendham Lake Est., L.P.,800 F. Supp. 1228 (D.N.J. 1992) .............................................................................................21

Warner-Lambert Co. v. Breathasure, Inc.,204 F.3d 87 (3d Cir. 2000).............................................................................................2, 12, 13

WPIX, Inc. v. ivi, Inc.,765 F. Supp. 2d 594 (S.D.N.Y. 2011), aff’d, 691 F.3d 275 (2d Cir. 2012). ............................19

STATUTES

15 U.S.C. § 1125(a) .......................................................................................................................12

21 U.S.C. §§ 331(a), 343(g).............................................................................................................4

New Jersey Consumer Fraud Act (“NJCFA”), N.J.S.A. 56:8-1 et seq....................................22, 23

OTHER AUTHORITIES

21 C.F.R. § 169.140 (2014) .............................................................................................................4


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5 J. Thomas McCarthy, MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION

§ 27:51 (2014)..........................................................................................................................18

JASPER WOMACH, CRS REPORT FOR CONGRESS, AGRICULTURE: A GLOSSARY OF

TERMS, PROGRAMS, AND LAWS (2005) ......................................................................................4

MERRIAM WEBSTER ONLINE DICTIONARY, available at http://www.merriam-webster.com/ ........................................................................................................................5, 13

Shari Seidman Diamond, Control Foundations: Rationales and Approaches, inTRADEMARK AND DECEPTIVE ADVERTISING SURVEYS, 201 (Shari SeidmanDiamond and Jerre B. Swann eds. 2012).................................................................................15


Plaintiff Conopco, Inc., doing business as Unilever (“Unilever”), respectfully

submits this memorandum of law in support of its motion to enjoin Hampton Creek, Inc.

(“Hampton Creek”) from distributing false and deceptive labeling and advertising for

Just Mayo, a plant-based vegan alternative to real mayonnaise that, despite its deceptive

name, is not mayonnaise.

PRELIMINARY STATEMENT

Unilever owns the Hellmann’s® and Best Foods® brands – the nation’s leading

brands of real mayonnaise. Hampton Creek competes against Unilever with a vegan

dressing and sandwich spread it calls Just Mayo. Despite its name, Just Mayo is not, in

fact, mayonnaise, but rather, is a plant-based alternative to real mayonnaise. Real

mayonnaise, under Food and Drug Administration (“FDA”) standards, common

dictionary definitions, and common usage, is a product made from eggs (along with oil

and an acidifying ingredient, like vinegar or lemon juice). Just Mayo is a vegan product

that contains no eggs. It is just not mayo.

Further, Just Mayo does not perform like mayonnaise, as consumers would expect

of a product called “Just Mayo.” Rather, unlike real mayo, Just Mayo cannot be used in

some of the many recipes that call for using mayonnaise in cooking. That is, because,

when heated, Just Mayo can separate into its constituent parts rather than maintaining the

binding qualities that make real mayonnaise a useful ingredient in certain recipes.

The Just Mayo name is thus literally false. Under well-settled Third Circuit case

law, it should be enjoined immediately. Novartis Consumer Health, Inc. v. Johnson &

Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 599-600 (3d Cir. 2002) (affirming


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injunction against literally falsely named Mylanta NightTime Strength antacid because it

contained no ingredients that made it more effective for night time heartburn); Warner-

Lambert Co. v. BreathAsure, Inc., 204 F.3d 87, 97 (3d Cir. 2000) (affirming injunction

against literally false name “BreathAsure” for breath tablets because they did not assure

good breath).

Given that the Just Mayo name is literally false, Unilever need not provide any

further evidence of the false messages communicated by the deceptive Just Mayo name

in order to obtain a preliminary injunction. Nevertheless, Unilever has gone further: It

has commissioned a consumer perception survey that confirms the overwhelmingly

confusing nature of the Just Mayo name. About half of consumers who were shown the

Just Mayo labeling and asked to consider the product as if they were making a purchase

were deceived into believing they were purchasing real mayonnaise. Unilever is thus

highly likely to succeed on the merits of its Lanham Act false advertising claim, as well

as parallel claims under the New Jersey Consumer Fraud Act.

Hampton Creek’s advertising and use of the Just Mayo name is not only

deceiving consumers, but it also is causing irreparable harm to Unilever. Unilever has

already lost sales as a result of Hampton Creek’s deceptive labeling and advertising;

initial data from one major retailer shows that more than half of Just Mayo purchasers

who had previously purchased real mayonnaise switched from the Best Foods® and

Hellmann’s® brands. If Hampton Creek’s false claims are not stopped, Hampton Creek

will lure more consumers to its brand on these false pretenses. Because advertising,

including false advertising, is just of many factors that impact consumer purchasing


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decisions, the effect will lead to irreparable harm to Unilever that is enormously difficult

to quantify. And, because Just Mayo does not perform like real mayo, Hampton Creek’s

false advertising will damage the entire product category, which has strived to maintain a

consistent definition of “mayonnaise” that fits with consumer expectations.

The final two factors of the preliminary injunction standard similarly favor entry

of an injunction here. Because Hampton Creek’s Just Mayo is deceiving consumers, the

public interest is furthered by an injunction prohibiting this deceptive conduct. In

addition, given the irreparable harm Unilever will suffer in the absence of relief and the

lack of any legitimate basis for Hampton Creek to pass off its non-mayo product as real

mayo, the balance of hardships tips decidedly in Unilever’s favor.

STATEMENT OF FACTS

I. The Hellmann’s® and Best Foods® Brands of Real Mayonnaise.

Unilever sells the popular Hellmann’s® and Best Foods® brands of real

mayonnaise. The Hellmann’s® brand was born more than a century ago, in 1905, when

Richard Hellmann, an immigrant from Germany, began using his family recipe for

mayonnaise in salads in his delicatessen on the Upper West Side of Manhattan.

Hellmann’s mayonnaise came to be so enormously popular that Hellmann soon devoted

his entire business to jarring and selling Hellmann’s Real Mayonnaise. Declaration of

Ryu Yokoi (November 7, 2014) (“Yokoi Decl.”) ¶ 3.

At about the same time in California, a company called Best Foods introduced an

equally popular mayonnaise product. In 1932, Best Foods acquired Hellmann’s and

decided to keep both brands. For over a century, Best Foods® mayonnaise has been the


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most popular brand of mayonnaise west of the Rocky Mountains, and Hellmann’s® has

been the most popular brand east of the Rockies. Id. ¶ 4. As a result of their inherent

quality and tremendous popularity for over one hundred years, Best Foods® and

Hellmann’s® remain the nation’s leading brands of mayonnaise.

II. The Mayonnaise Product Category

Federal regulations provide a specification for products that are allowed to be

marketed as “mayonnaise.” The FDA’s standard of identity defines mayonnaise as “the

emulsified semisolid food prepared from vegetable oil(s),” an “acidifying” ingredient of

either (1) vinegar or (2) lemon juice or lime juice, or both, and an “egg yolk-containing”

ingredient. 21 C.F.R. § 169.140 (2014). The need for regulation in this area arose in

response to prior efforts by unscrupulous manufacturers to pass off diluted products,

which did not meet consumers’ expectations for mayonnaise, as actual mayonnaise.

Yokoi Decl. ¶ 5. As the Congressional Research Service branch of the Library of

Congress explains, the standard of identity was developed to “protect the consumer by

ensuring that a label accurately reflects what’s inside (for example, that mayonnaise is

not an imitation spread . . . . ).” JASPER WOMACH, CRS REPORT FOR CONGRESS,

AGRICULTURE: A GLOSSARY OF TERMS, PROGRAMS, AND LAWS, CRS-243-44 (2005).

Identifying a product that does not meet this definition as mayonnaise is a violation of

FDA regulations. 21 U.S.C. §§ 331(a), 343(g).

“Mayo” is defined in multiple dictionaries as a shorthand for mayonnaise, and is

regularly used that way by the media and the trade. It also is understood by consumers to

be synonymous with “mayonnaise.” Yokoi Decl. ¶ 14. In addition, consumers have


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come to understand, and expect, that real mayonnaise will contain egg, oil and an

acidifying ingredient. That is reflected in common dictionary definitions of mayonnaise,

which define mayonnaise as “a dressing made chiefly of egg yolks, vegetable oils, and

vinegar or lemon juice.” MERRIAM WEBSTER ONLINE DICTIONARY, available at

http://www.merriam-webster.com/ (emphasis added); see also Yokoi Decl. ¶ 8.

Advertising for Hellmann’s® and Best Foods® has stressed for decades the

importance of the key constituent ingredients of mayonnaise by emphasizing that

Hellmann’s® and Best Foods® are made with real, simple ingredients: eggs, oil and

vinegar. Yokoi Decl. ¶ 6 & Ex. A. Similarly, advertising for Hellmann’s® emphasizes

that real mayonnaise can be used not only as a spread on sandwiches, but in recipes for

cooking as well. Id. ¶ 15 & Ex. L.

III. False Labeling and Advertising of Just Mayo

In or around September 2013, Hampton Creek

began selling a variety of sandwich spreads that it packages

and sells under the name Just Mayo. As shown at right, the

Just Mayo packaging prominently features the name Just

Mayo with the word “Just” appearing in small cursive

writing above the significantly larger word “Mayo,” which

is presented in bold, block letters. The name appears

below an image of a large egg on a brown label that is

wrapped around a transparent container such that the

sandwich spread inside is visible. Id. ¶ 9 & Ex. D.


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Because Just Mayo does not contain any

egg ingredients, it is not mayo. As shown at right,

the Just Mayo packaging lists the ingredients as:

“Non-GMO Expeller Pressed Canola Oil, Filtered

Water, Lemon Juice, White Vinegar, 2% or less of the following: Organic Sugar, Salt,

Pea Protein, Spices, Modified Food Starch, Beta-Carotene.” In some versions of the

product, a preservative is added to render the product shelf-stable. Id. ¶ 10 & Ex. E.

Hampton Creek concedes that its product does not contain egg, with a small disclaimer –

“Egg Free” – that appears on the left side of the label. Id. ¶ 11.

Hampton Creek also sells flavored sandwich spreads that include the name Just

Mayo with a term describing added flavors, including Just Mayo Chipotle, Just Mayo

Garlic, and Just Mayo Sriracha. As shown below, the labeling for these flavored Just

Mayo sandwich spreads is nearly identical to the labeling for the unflavored Just Mayo

spread, except the name of the flavor appears below the words “Just Mayo.” As with

unflavored Just Mayo, none of the flavored Just Mayo spreads contain any egg


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ingredients, despite the prominent image of the egg on the label. On the flavored

products, the disclaimer “Egg Free” appears in small letters only on the back label of the

product. Id. ¶ 12.

In addition to falsely naming its vegan sandwich spread “mayo,” Hampton Creek

has explicitly and falsely referred to Just Mayo as “mayo” and “mayonnaise” in

advertisements:

As shown immediately below, on its website, Hampton Creek has stated:

“Just Mayo is an outrageously delicious mayonnaise . . .” (emphasis

added). More recently, in an apparently acknowledgement that the

product is not “mayonnaise,” Hampton Creek as removed the word

“mayonnaise” from this page of its website (see second image below).

Id. ¶ 13 & Ex.G.


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As shown below, on its website, Hampton Creek is currently stating that

Just Mayo is “[c]reamy rich mayo for any sandwich, anytime.” Id. ¶ 13 &

Ex. H (emphasis added).

On its Facebook page, Hampton Creek states that it is the “#1 selling

mayo at Whole Foods Market!” Id. ¶ 13 & Ex. I (emphasis added).

Hampton Creek’s conduct is particularly deceptive because Just Mayo does not

perform like real mayonnaise. Real mayonnaise is used by home and professional chefs

alike as an essential ingredient in many recipes, including as an ingredient that binds

together other ingredients. Because Just Mayo lacks the ingredients of real mayonnaise,

it can separate into its constituent parts when it is heated and fail to bind together

ingredients. Id. ¶ 15. By calling itself “mayo” and failing to perform like mayonnaise,

Just Mayo deceives consumers who may attribute the failed performance to all


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mayonnaise products. Hampton Creek’s false advertising thus damages the entire

product category, which, as discussed above, has strived for decades to protect a

consistent definition of “mayonnaise” that fits with consumer expectations. Id. ¶¶ 6, 16.

Consumers deceived into believing Just Mayo is real mayonnaise and who are

subsequently disappointed by its failure to perform adequately will falsely believe those

sub-standard characteristics are common to mayonnaise generally, including Unilever’s

Best Foods® and Hellmann’s® brands. Id. ¶ 21.

Hampton Creek is well aware of the consumer confusion its false advertising

causes. In a video interview that was posted to YouTube on November 4, 2014,

Hampton Creek’s CEO, Josh Tetrick, stated that “most” consumers do not know that,

when they buy Just Mayo, they are getting a product that is “different” than real

mayonnaise. Id. ¶ 18 & Ex. M.

Deceiving consumers into believing that Just Mayo is real mayonnaise is part and

parcel of Hampton Creek’s business strategy. During the same November 2014

interview, Mr. Tetrick explained why Hampton Creek wants its Just Mayo product to be

understood as mayonnaise rather than as a mayonnaise substitute:

“Focusing on substitute and focusing on alternatives is a recipe forloserdom for us. It’s a recipe for being a niche company. It’s a recipe forlots of folks who are in the natural world to sort of give us a big round ofapplause and a recipe for someone in Birmingham, Alabama to ignore uscompletely. And that’s something we don’t want. So, we’re trying tofocus more on not the alternative, but the only thing” – i.e., not“substitute” mayo, but “just” mayo.

Id. ¶ 19. In another recent interview – this time, with Stuart Varney of Fox Business

News – Mr. Tetrick was asked directly why Hampton Creek avoids truthfully calling its


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product “vegan.” Mr. Tetrick explained that calling the product “vegan” mayo would not

be “too effective” because Hampton Creek is “all about making the thing accessible,”

including to shoppers who are not looking for a vegan product. Id. ¶ 20 & Ex. N. The

clear implication is that a truthful label accurately describing Just Mayo as a vegan

substitute for mayonnaise would undermine Hampton Creek’s business strategy.

Hampton Creek does not want its customers to know that Just Mayo is a vegan mayo

substitute; rather, it wants its customers to think that it is just regular mayo.

IV. Harm to Unilever and Unilever’s Efforts to Resolve the Dispute

Unilever has given Hampton Creek ample notice of its complaints regarding the

Just Mayo name, packaging and advertising. In March 2014, shortly after it first learned

about Just Mayo, Unilever contacted Hampton Creek to demand that Hampton Creek

correct its false and misleading labeling and advertising for Just Mayo. The primary

concern that Unilever expressed was Hampton Creek’s deceptive use of the name Just

Mayo. Id. ¶ 23.

Since then, the parties have exchanged a number of letters – the most recent of

which were dated October 31, 2014 and November 4, 2014 – and Unilever has continued

to explain its concerns regarding the name Just Mayo. In the October 31st letter,

Unilever also put Hampton Creek on express notice that Unilever would seek a

preliminary injunction if Hampton Creek continued its use of the Just Mayo name.

Despite Unilever’s efforts to convince Hampton Creek to correct its false and misleading

labeling and advertising, Hampton Creek refused to do so. Id. ¶ 24.


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Furthermore, developments since March 2014 have exacerbated the harm to

Unilever. When Just Mayo initially was introduced, it was sold in specialty markets, like

Whole Foods, that do not carry any of Unilever’s brands. It also had a limited test in

Costco wholesale club. Because the Just Mayo product sold at Whole Foods lacked a

preservative and therefore was not shelf stable, it was stocked in those stores in the

refrigerated foods section, often next to other imitation mayonnaise products such as

“Vegenaise.” Id. ¶ 25.

In April 2014, mainstream supermarkets that carry the Best Foods® and

Hellmann’s® brands, like Safeway, began carrying Just Mayo in a shelf-stable version.

In at least some of these stores, Just Mayo began to compete directly with Best Foods®

and Hellmann’s® for shelf space. Several months later, Unilever learned Just Mayo

would be carried by Walmart nationally in a shelf-stable version, which also would

directly compete for shelf space with Best Foods® and Hellmann’s® mayonnaise.

Id. ¶ 26.

Just Mayo is already impacting sales of Best Foods® and Hellmann’s®

mayonnaise. Data obtained from a leading supermarket chain, for example, shows that

more than half of Just Mayo purchasers who had previously purchased real mayonnaise

had switched from the Best Foods® or Hellmann’s® brands. As Just Mayo gains greater

penetration in the market, harms in the form of lost sales are bound to increase. If Just

Mayo is not enjoined, it will win some consumers’ brand loyalty based on false pretenses,

and will irreparably harm Unilever in a way that is enormously difficult to quantify.

Id. ¶ 28.


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ARGUMENT

I. The Standard for Relief

To obtain a preliminary injunction, a plaintiff must establish (1) a likelihood of

success on the merits; (2) irreparable harm; (3) a balance of equities in favor of the

plaintiff; and (4) that the public interest favors an injunction. Ferring Pharm., Inc. v.

Watson Pharm., Inc., 765 F.3d 205, 210 (3d Cir. 2014); Novartis Consumer Health, Inc.

v. Johnson & Johnson-Merck Consumer Pharm. Co., 290 F.3d 578, 586 (3d Cir. 2002).

As explained below, Unilever satisfies these elements and is thus entitled to a preliminary

injunction.

II. Unilever Is Likely to Succeed on the Merits of its False Advertising Claim.

Section 43(a) of the Lanham Act makes actionable:

any . . . false or misleading description of fact, or false or misleadingrepresentation of fact, which . . . in commercial advertising or promotion,misrepresents the nature, characteristics, qualities, or geographic origin ofhis or her or another person’s goods, services or commercial activities.

15 U.S.C. § 1125(a). That language also prohibits false statements embodied in the name

of a product. See Novartis, 290 F.3d at 599-600 (“Mylanta Night Time Strength” name

for antacid enjoined as false because it was not specifically formulated for night time

heartburn and did not remedy heartburn more effectively at night than during the

daytime); Warner-Lambert Co. v. BreathAsure, Inc., 204 F.3d 87, 96-97 (3d Cir. 2000)

(name “BreathAsure” for product that did not assure against bad breath was literally

false). Where a product name either literally states a false claim, or necessarily implies a

false claim, no evidence of consumer confusion is required to demonstrate that


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Section 43(a) has been violated. Novartis, 290 F.3d at 586-87. As discussed in detail

below, the Just Mayo name and labeling are literally false. Further, although consumer

perception evidence is not required in these circumstances, a well-designed consumer

perception study shows that confusion is rampant, thus confirming the need for injunctive

relief to protect consumers against further deception.

A. The Just Mayo Name is Literally False

Just Mayo is literally false because it literally means that the product is “just” –

“exactly,” “precisely,” “only,” “simply”1 – mayonnaise. Just Mayo, however, is not

“exactly,” “precisely,” “only,” or “simply” mayonnaise. Most significantly, it has no

eggs, which is a necessary ingredient in real mayonnaise. Instead, it is an entirely vegan

product. It is, therefore, expressly false for Hampton Creek to use the name “Just

Mayo.” See Novartis, 290 F.3d at 590 (finding “Mylanta Night Time Strength” name for

antacid literally false where product was not specifically formulated for night time

heartburn and did not remedy heartburn more effectively at night than during the

daytime); BreathAsure, Inc., 204 F.3d at 96-97 (finding “BreathAsure” name literally

false where product did not promote fresh breath); Merck Eprova AG v. Gnosis S.P.A.,

760 F.3d 247, 256 (2d Cir. 2014) (defendant’s use of the common name for a pure dietary

ingredient in product specification sheets, brochures, and product data sheets was literally

false where defendant was actually selling a “mixed product”); Johnson & Johnson v.

1 Merriam Webster Online Dictionary, available at http://www.merriam-webster.com/(definition for “just”).


14

GAC Int’l, Inc., 862 F.2d 975 (2d Cir. 1988) (naming orthodontic brace “polysapphire,”

in light of consumer demand for competitor’s sapphire-containing bracket, was false and

misleading where product was not made of sapphire); Cont’l Wax Corp. v. Fed. Trade

Comm’n, 330 F.2d 475, 477 (2d Cir. 1964) (requiring company to remove designation

“Six Month” from name of floor wax because product name conveyed false impression

that “[the] product would last and be effective for six months”); Kraft Gen. Foods, Inc. v.

Del Monte Corp., 28 U.S.P.Q.2d 1457, 1460 (S.D.N.Y. 1993) (enjoining use of “Gelatin

Snacks” as name of product where product contained gelatin-like ingredient derived from

seaweed, rather than real gelatin from animal products).2

B. Survey Evidence Demonstrates That The Name Just Mayo IsMisleading.

Given that the Just Mayo name is literally false, Unilever does not need any

further evidence that the name is deceiving consumers. Novartis, 290 F.3d at 586-87.

Nevertheless, to measure scientifically the extent to which consumers are likely to be

2 That the Just Mayo label discloses that it is “egg free” cannot dispel the literal falsitythat Just Mayo is exactly (or simply) “mayo.” Because consumers have little reasonto question an apparently unambiguous statement, courts routinely reject similarattempts to “correct” literally false statements in advertising with an inadequate orinconspicuous disclaimer. See, e.g., Bracco Diagnostics, Inc. v. Amersham Health,Inc., 627 F. Supp. 2d 384, 464 (D.N.J. 2009) (disclaimer that “purports to change theapparent meaning of the claims and render them literally truthful, but which is soinconspicuously located or in such fine print that readers tend to overlook it, will notremedy the misleading nature of the claims” (citation omitted)); Smithkline BeechamConsumer Healthcare, L.P. v. Johnson & Johnson-Merck Consumer Pharm. Co.,906 F. Supp. 178, 182 (S.D.N.Y. 1995) (same), aff’d, 100 F.3d 943 (2d Cir. 1996);Am. Home Prods. Corp. v. Johnson & Johnson, 654 F. Supp. 568, 590 (S.D.N.Y.1987) (same).


15

confused into believing the Just Mayo is real mayonnaise, Unilever engaged Dr. Michael

Mazis, a leading consumer perception survey expert who has done similar survey work

for the Federal Trade Commission. Dr. Mazis conducted a survey in which he showed

consumers images of the Just Mayo label and product and asked them how they would

describe the product. 53.7% of those consumers gave a response indicating that they

mistakenly believed Just Mayo is mayonnaise. Declaration of Michael Mazis (November

7, 2014) (“Mazis Decl.”) ¶ 4.

In order to determine how much of that confusion was attributable to the use of

the word “mayo” and/or the failure to clearly communicate that the product is not really

mayonnaise, Dr. Mazis showed two alternative labels to other groups of consumers. One

label used the name Just Delicious Dressing instead of Just Mayo, but was otherwise

identical to the Just Mayo label; the other changed the name from Just Mayo to Not Quite

Mayo. Only 10.2% of the consumers who saw the Just Delicious Dressing label

mistakenly believed that it was mayonnaise, and only 5.8% of the consumers who saw

the Not Quite Mayo label mistakenly believed that it was real mayonnaise. Id. ¶¶ 4, 5, 6.

Even if these percentages are subtracted from the results as a measure of survey “noise,”

it remains the case that more than 40 percent of all respondents in the surveys, net of

noise, are deceived into believing that Just Mayo is mayonnaise. Id. ¶ 25.; see, e.g.,

Novartis, 209 F.3d at 591 n.7 (“netting out . . . ‘noise’” to calculate level of confusion);

see generally Shari Seidman Diamond, Control Foundations: Rationales and

Approaches, in TRADEMARK AND DECEPTIVE ADVERTISING SURVEYS, 201, 201-16 (Shari

Seidman Diamond and Jerre B. Swann eds. 2012). This level of confusion is well above


16

the minimum confusion levels required to support findings of implied falsity in violation

of the Lanham Act. See, e.g., Novartis, 290 F.3d at 594 (15% confusion “is sufficient to

establish the actual deception or at least a tendency to deceive a substantial portion of the

intended audience” (citation and internal quotation marks omitted)); Church & Dwight

Co. v. S.C. Johnson & Son, Inc., 873 F. Supp. 893, 911 (D.N.J. 1994) (“[c]ourts have

found survey figures to be sufficient when they revealed that 21 percent to 34 percent,

‘over 25 percent,’ and 33 percent of respondents received a misleading message from the

ad” (citation omitted) (alteration in original)); McNeilab, Inc. v. Am. Home Prods. Corp.,

501 F. Supp. 517, 525, 527 (S.D.N.Y. 1980) (23% confusion provides “ample support”

for Lanham Act claim); see also Goya Foods, Inc. v. Condal Distribs., Inc., 732 F. Supp.

453, 457 n.7 (S.D.N.Y. 1990) (expert witness’ “opinion that any figure greater than 7

percent is meaningful is supported by the relevant case law”; 8-9% confusion sufficient

in Lanham Act case).3

The numbers alone do not tell the entire story. When consumers’ verbatim

responses in the survey are reviewed, it is apparent that the deception is being caused by

the Just Mayo name and packaging, and not other aspects such as the look of the product

3 Dr. Mazis tested a third modified label, in which he added the word “dressing” to theJust Mayo name, to test whether the addition of that word to the name Just Mayowould correct the misimpression communicated by the name. He found that, evenwith the addition of the word “dressing”, more than 40 percent of consumers weredeceived into believing that the Just Mayo product was real mayonnaise. MazisDecl. ¶¶ 4, 26. Dr. Mazis is in the process of testing a fourth alternative – JustDressing – as a formal “control” cell; he will report the results of that cell in asupplemental declaration that Unilever intends to submit with its reply papers.Mazis Decl. at 27.


17

or the shape of the jar. For example, in response to questions asking consumers to

describe the product that they just saw, respondents gave answers like the following:

“all natural mayo” (Panel ID 12780242)

“Mayonayse” [sic] (Panel ID 14169732)

“Just plain mayonnaise nothing fancy in the label.” (Panel ID 15537385)

“A jar of mayonnaise with a brown wrapper from Hampton Farms.”(Panel ID 4188061)

Mazis Decl. Ex. E. These and many similar responses show that many consumers

understand the product to be actual mayonnaise rather than an imitation, non-mayonnaise

sandwich spread. Further, when respondents were asked why they thought Just Mayo

was mayonnaise, they provided reasons that explicitly indicated that their confusion

stemmed from the name Just Mayo that appeared on the label:

“The jar said mayo.” (Panel ID 14410408)

“The label said so.” (Panel ID 13182998)

“That’s what the label said.” (Panel ID 10136314)

“The name ‘Just Mayo’ makes me think that it is real mayo.” (Panel ID149708224)

Id.

Focus group research conducted by Unilever confirms this confusion. Consumers

who participated in a recent focus group were shown a jar of Just Mayo and were asked

their reactions to the product. The consumers mistakenly believed that it was real,

egg-containing mayonnaise until they carefully scrutinized the label and discovered that

it does not contain eggs. After making that discovery, one of the consumers stated: “It’s


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not ‘Just Mayo,’ it’s a lie.” Yokoi Decl. ¶ 17. The results of Dr. Mazis’ survey and

Unilever’s focus group research show that a significant number of consumers understand

the Just Mayo name and labeling to convey the false message that Hampton Creek’s

vegan sandwich spread is real mayonnaise.

The high level of consumer confusion demonstrated by Unilever’s consumer

perception study and focus group further underscore the necessity of preliminary

injunctive relief in order to prevent continued widespread consumer deception. That

confusion should hardly come as a surprise to Hampton Creek, whose CEO has publicly

admitted that “most” consumers are confused, and do not realize that Just Mayo is

different from regular mayo. See id. ¶ 18 & Ex. M. Where, as here, an advertiser

engages in a deliberate strategy to deceive consumers, the conclusion that consumers

actually are deceived follows as a matter of course. See 5 J. Thomas McCarthy,

MCCARTHY ON TRADEMARKS AND UNFAIR COMPETITION § 27:51 at 27-122 (2014); see

also Bracco, 627 F. Supp. 2d at 477.

III. Unilever Will Suffer Irreparable Harm in the Absence of a PreliminaryInjunction.

“To demonstrate irreparable harm in a Lanham Act case, a party must show two

things: (i) that the parties are competitors in the relevant market, and (ii) that there is a

logical causal connection between the alleged false advertising and its own sales

position.” Reckitt Benckiser Inc. v. Motomco Ltd., 760 F. Supp. 2d 446, 454 (S.D.N.Y.

2011) (citation and internal quotation marks omitted).


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Hampton Creek and Unilever are direct competitors in the market for sandwich

spreads, and Hampton Creek’s false advertising has already had a negative effect on the

market share enjoyed by Unilever. For example, data obtained from a leading

supermarket chain shows that more than half of Just Mayo purchasers who had

previously purchased real mayonnaise had switched from the Best Foods® and

Hellmann’s® brands.4 See Novartis, 290 F.3d at 595-96 (decrease in sales and loss of

market share constitute irreparable harm).

Because Just Mayo is the name of Hampton Creek’s product, there is no doubt

that consumers are exposed to this falsehood at the point of purchase. Although

advertising, including false advertising, impacts consumer decision-making, the effect of

the advertising itself is enormously difficult to quantify because so many other factors

impact consumer purchases. Every day that Just Mayo remains on the shelves, and each

additional dissemination of the falsehoods in Hampton Creek’s advertisements, exposes

millions of consumers to Hampton Creek’s deceptions and necessarily harms Unilever in

a manner that is enormously difficult to quantify. Yokoi Decl. ¶ 27. The inability to

quantify harm is itself a form of irreparable harm. See WPIX, Inc. v. ivi, Inc., 765 F.

Supp. 2d 594, 618 (S.D.N.Y. 2011) (“These losses are ‘notoriously difficult’ to prove and

4 The actual data is highly confidential and, under Unilever’s agreement with thesupermarket chain at issue, can only be shared on a confidential basis, under seal.Unilever will work with Hampton Creek to submit a proposed protective order to theCourt, and as soon as the protective order is in place, upon receipt of a documentrequest from Hampton Creek, Unilever will make the underlying informationavailable to Hampton Creek and will file a declaration under seal to provide thisinformation to the Court. Yokoi Decl. ¶28.


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nearly impossible to quantify, and accordingly are considered irreparable.” (citation

omitted)), aff’d, 691 F.3d 275 (2d Cir. 2012).

In addition, Unilever has invested significant resources to educate consumers that

real mayonnaise can be used not only as a spread on sandwiches, but also in recipes

where it is heated. For example, one of the signature recipes associated with the

Hellmann’s® brand is Parmesan Crusted Chicken, but when that recipe is made with Just

Mayo, the Hampton Creek product separates and fails to provide the coating that real

mayonnaise would provide. Yokoi Decl. ¶15 & Ex. L. Consumers who are deceived into

believing Just Mayo is real mayonnaise and who are subsequently disappointed by its

failure to perform adequately when heated will falsely believe those sub-standard

characteristics are common to mayonnaise generally, including Unilever’s Best Foods®

and Hellmann’s® brands. Id. ¶ 21.

IV. The Balance of Equities Favors an Injunction.

Because Unilever will suffer irreparable injury absent an injunction, the Court

need only consider whether an injunction would unduly harm Hampton Creek. See

Opticians Ass’n of Am. v. Indep. Opticians of Am., 920 F.2d 187, 197 (3d Cir. 1990);

Church & Dwight Co., 873 F. Supp. at 912. The self-inflicted nature of any harm to

Hampton Creek weighs in favor of injunctive relief. Hampton Creek cannot complain

about the harm to it that will ensue if it is ordered to stop its false and misleading conduct

because the benefits it is receiving from deceiving customers through the Just Mayo

name and advertising are illegitimate and not legally cognizable. See Novartis, 290 F.3d

at 596 (“the injury a defendant might suffer if an injunction were imposed may be


21

discounted by the fact that the defendant brought that injury upon itself”); Opticians

Ass’n, 920 F.2d at 197; see also Pappan Enters., Inc. v. Hardee’s Food Sys., Inc., 143

F.3d 800, 806 (3d Cir. 1998) (applying “self-inflicted” injury rule in trademark case);

Value Group, Inc. v. Mendham Lake Est., L.P., 800 F. Supp. 1228, 1234 (D.N.J. 1992)

(applying rule in copyright case).

V. The Public Interest Favors an Injunction

“[T]here is a strong public interest in the prevention of misleading

advertisements.” Novartis, 290 F.3d at 597 (citation and quotation marks omitted);

GlaxoSmithKline Consumer Healthcare v. Merix Pharm. Corp., No. Civ. 05-898(DRD),

2005 WL 2230318, at *12 (D.N.J. Sept. 13, 2005) (“There is an obvious public interest in

preventing misleading advertisements. . . .”). As discussed above, Hampton Creek’s

misleading name falsely states that its vegan sandwich spread is mayonnaise, when, in

fact, it is not. This false advertising deceives consumers, and damages the entire product

category, which has strived for decades to protect a consistent definition of “mayonnaise”

that fits with consumer expectations. Yokoi Decl. ¶ 16. Because Just Mayo is just not

mayonnaise and does not fit with the expectations of mayonnaise, it is in the public

interest to eliminate Hampton Creek’s false and deceptive claims. Moreover, the strength

of Unilever’s showing above – that there is a likelihood that Unilever will succeed on the

merits – means that Unilever’s burden on this factor is lessened. See AT&T Co. v.

Winback and Conserve Program Inc., 42 F.3d 1421, 1427 n.8 (3d Cir. 1994) (“As a

practical matter, if a plaintiff demonstrates both a likelihood of success on the merits and


22

irreparable injury, it almost always will be the case that the public interest will favor the

plaintiff.”).

VI. Unilever Also Is Entitled to Preliminary Relief Under the New JerseyConsumer Fraud Act.

Unilever also is entitled to a preliminary injunction because of Hampton Creek’s

violation of the New Jersey Consumer Fraud Act (“NJCFA”), N.J.S.A. 56:8-1 et seq.

The NJCFA is a broad consumer protection measure enacted to “eliminat[e] sharp

practices and dealings in the marketing of merchandise.” Channel Cos. v. Britton, 167

N.J. Super. 417, 418, 400 A.2d 1221 (App. Div. 1979). As such, it prohibits

[t]he act, use or employment by any person of any unconscionablecommercial practice, deception, fraud, false pretense, false promise,misrepresentation, or the knowing, concealment, suppression, or omissionof any material fact with intent that others rely upon such concealment,suppression or omission, in connection with the sale or advertisement ofany merchandise, . . or with the subsequent performance of such person asaforesaid, whether or not any person has in fact been mislead, deceived ordamaged thereby . . . .

N.J.S.A. § 56:8-2. Competitors have standing to bring claims for false advertising under

the statute. See Feiler v. New Jersey Dental Ass’n, 467 A.2d 276, 279 (N.J. Super. Ct.

Ch. Div. 1983).

The same operative facts that establish a violation of Section 43(a) of the Lanham

Act also establish a violation of the NJCFA. See Coach, Inc. v. Paula’s Store Sportswear

LLC, Civil Action No. 13–3263 (SRC), 2014 WL 347893, at *3 (D.N.J. Jan. 31, 2014).

Because Unilever has demonstrated that the labeling and advertising for Just Mayo is

false, it has made the required showing under the NJCFA as well.


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CONCLUSION

For the reasons set forth above, Unilever respectfully requests that this Court

immediately enjoin Hampton Creek from using the name Just Mayo and from further

disseminating the false claims in its advertising for Just Mayo.

Dated: New York, New YorkNovember 7, 2014

DEBEVOISE & PLIMPTON LLP

By: /s/ Michael PotenzaBruce P. Keller ([email protected])David H. Bernstein ([email protected])*Michael Potenza ([email protected])Jared I. Kagan ([email protected])*

919 Third AvenueNew York, New York 10022(212) 909-6696

Attorneys for Plaintiff Conopco, Inc. dba Unilever*admitted pro hac vice


memorandum of law in support of …...plaintiff conopco, inc., doing business as unilever...

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