Legal battle intensifies over Campari tomato - The Packer

Legal battle intensifies over Campari tomato

10/31/2008 12:00:00 AM
Ashley Bentley

(Oct. 31, 2:12 p.m.) A little tomato is causing a big stir in the greenhouse industry.

Despite recent claims by Mastronardi Produce Ltd., Kingsville, Ontario, that it has signed a long-term deal as exclusive North American grower and marketer of Campari cocktail tomatoes, the other marketers of the tomato, Eurofresh Farms, Willcox, Ariz., and Village Farms LP, Eatontown, N.J., plan to continue to carry the variety.

In early September, Mastronardi announced the exclusive agreement with the Dutch seed company that developed the campari seed in the mid-1990s, Enza Zaden.

The claim met opposition from the other two greenhouse companies marketing the variety, after Mastronardi continued to make the claim in the days before the Oct. 24-27 Produce Marketing Association’s Fresh Summit, where it displayed the Camparis.

That sparked a response from Village Farms chief executive officer Mike DeGiglio, who issued a statement Oct. 22, referring to recent movement in a trademark dispute against Mastronardi. While Mastronardi still retains the “Campari” trademark, DeGiglio alleged the company obtained it fraudulently because the trademark application didn’t identify Campari as a variety name.

DeGiglio declined to comment on the record when contacted by The Packer.

Mastronardi applied for a trademark for the Campari name in 2003, which is the same year the company unveiled the tomato variety in its booth at PMA. The U.S. Patent and Trademark Office issued the trademark Jan. 3, 2006. No opposition was filed against the request — until four months later.

Westgro Sales Inc., the exclusive marketer of Enza Zaden greenhouse vegetable seeds to the Western U.S. and Canada, filed a motion to cancel Mastronardi’s trademark on the name Campari in May 2006.

Enza Zaden, not Mastronardi, named the seed when the company developed it, said Rob Keene, Enza Zaden’s director of export.

“When the variety was born in the mid-90s, you have to register a name to sell it, and we registered it under the name campari,” he said.

Keene would not say whether Mastronardi has a new agreement to be the exclusive North American marketer of the tomato.

“We do have an exclusive agreement with Enza for the North American market,” said Chris Veillon, marketing manager for Mastronardi, on Oct. 30.

Houweling Nurseries, Oxnard, Calif., was the first North American grower of the variety in 1996 and marketed it through BC Hot House Foods Inc., Vancouver, said Dave Gingrich, vice president and general manager of Westgro. Eurofresh joined BC Hot House in late 2002 as a marketer of the variety. Westgro distributed the campari seeds to both growers.

In 2005, Eurofresh, BC Hot House and Mastronardi formed The Campari Marketing Group. It disbanded in 2007.

By 2005, Eurofresh, BC Hot House and Mastronardi were the only companies marketing campari through an agreement with Enza Zaden, and they formed The Campari Marketing Group. That agreement expired last year, Gingrich said, although Westgro still maintains a deal with Enza Zaden to supply the seed.

Mastronardi unveiled its campari tomato to the industry at PMA’s Fresh Summit 2003, but the company’s trademark application noted it had grown the variety since 1995.

It is because of this claim, along with the fact that campari is a tomato variety and not a brand name, that Westgro is trying to get Mastronardi’s trademark cancelled.

According to the U.S. Patent and Trademark Office: “If the examining attorney determines that wording sought to be registered as a mark for live plants, agricultural seeds, fresh fruits or fresh vegetables comprises a varietal or cultivar name, then the examining attorney must refuse registration …”

Gingrich said he realized the clause when Westgro pursued a trademark on the name for the Canadian market.

In the latest proceeding in the case, Mastronardi filed an answer to Westgro’s petition for cancellation on Oct. 28.

“Now we have an answer, which basically denied all claims that were made in the petition to cancel,” said David Sams, chief judge of the trademark trial and appeal board.

Because trademark litigation is done completely on paper, and not in court, should the case continue, Westgro will have a chance to make its case, followed by Mastronardi’s defense and a rebuttal period, with time for gathering information between each phase. The rebuttal period is scheduled to close in September.

Gingrich said Westgro has supplied Eurofresh and Village Farms with campari seed for the 2009 crop.



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