Mastronardi responds: Mastronardi Produce: Trademark suit unfounded

NatureSweet sues Mastronardi over trademark(UPDATED COVERAGE, May 9) NatureSweet, Ltd. is suing rival tomato grower-shipper Mastronardi Produce Ltd. for alleged trademark infringement.

San Antonio-based NatureSweet filed the lawsuit May 8 in U.S. District Court in Dallas.

NatureSweet is asking the court to force Kingsville, Ontario-based Mastronardi Produce to drop the Angel Sweet name plus design and packaging features of a grape tomato product expected to start shipping this month.

The suit claims the features will cause consumers to confuse the new Angel Sweets with NatureSweet Cherubs.

"We want to be sure that"s not misrepresented as a product we"re affiliated with, because we"re not," Bryant Ambelang, NatureSweet president, said May 9. "We can all end this at 5 p.m. today if our competitor withdraws a confusing trademark and winged tomato, and ends the use of a package that we own the design patents for. I was surprised I wasn"t contacted by Mastronardi before they decided to use the trademark."

NatureSweet sues Mastronardi over trademarkAmbelang said he first learned of Angel Sweet in late April from an ad on The Packer website. "Later on we had somebody bring in a picture that was part of a news release for the product, and then we saw it again at the United Fresh show last week," he said.

Cherubs generate about $300 million in annual sales to NatureSweet clients, Ambelang said. Most retailers carrying the product are west of the Mississippi River, where Cherubs launched six years ago.

"In the oldest markets, Texas and Colorado in particular, our market research indicates we have four times the brand recognition that (Mastronardi"s) Sunset does," Ambelang said. "It"s 80% in a place like Austin, Texas, and 60% outward. People ask for that package, the winged tomato and the Cherub name. The closest brand to that in fresh tomatoes is Sunset at 20%."

The brand went national this year, Ambelang said, and NatureSweet is distributing Cherubs in Eastern states.

"We"ve spent millions of dollars on greenhouses to produce this tomato, on TV campaigns to advertise it and on the brand and packaging itself," Ambelang said. "Consumers are looking for it by name. That"s not an accident, but something we"ve spent years on and protected."

It"s not the only trademark dispute for NatureSweet in recent years.

In November 2010 the company then named Desert Glory – dropped a suit against Ag-Mart Produce, Inc., when the latter agreed to discontinue a packaging design alleged to closely resemble that of Cherubs.

That packaging was for SweetRipes tomatoes. Plant City, Fla.-based Ag-Mart Produce does business as Santa Sweets Inc.

In October of the same year, Eclipse Berry Farms LLC agreed to take the packaging for its CalFruit grape tomatoes off the market after opposition from Desert Glory. The dispute was settled out of court.

"In both cases, Santa Sweets and Eclipse Berry, we settled way before we had a whole lot of attorneys involved," Ambelang said. "We came up with amicable settlements and everybody went back to doing business. We"d like to see that happen here, too."

NatureSweet"s new suit asks the court to award the company any profits Mastronardi Produce makes from the various alleged infringements, as well as to compensate for damages.