Harry and David Take FRUIT OF MONTH CLUB To U.S. District Court.

MEDFORD, May 20, 2009 -- Pioneers of mail order fruit Harry & David filed suit against a competitor because of unauthorized use of the trademarks FRUIT OF THE MONTH CLUB and TOWER OF TREATS.

Oregon's Harry and David Operations Corp. ("Harry and David") brought the action for trademark infringement, trademark dilution and unfair competition against Massachusset's Ruma's Fruit & Gift Basket World, Inc. for using FRUIT OF THE MONTH CLUB and TOWER OF TREATS.

Harry and David federally registered both marks. Trademarks that are merely descriptive of the goods or services they are used in connection with typically do not qualify for registered status at the federal level. A descriptive can obtain a federal registration when it has been used continuously for five years and the applicant can demonstrate that the mark has acquired secondary meaning. Secondary meaning is when a trademark serves as an identifier of the source of goods or services to the consuming public in addition to the marks literal meaning.

Harry and David began its existence as the Bear Creek Corporation when it was founded by Seattle hotelier Samuel Rosenberg in 1910 after purchasing 240 acres of pear orchards in Medford, Oregon. Rosenberg's sons, Harry and David, assumed control of the company after his death in 1914. The company is best known for beginning the business of mail order direct marketing of fruit. They are also known for their high-end gift baskets and holiday gift towers.

Ruma's Fruit & Gift Basket World, Inc. is accused of using FRUIT OF THE MONTH CLUB and TOWER OF TREATS for identical goods and services.

A court order has been requested to prohibit Ruma's Fruit & Gift Basket World, Inc. from using the marks in addition to the seizure and destruction of all products and marketing materials bearing the marks.

Pursuant to the Lanham Act, Harry and David could recover the Ruma's profits and any damages sustained by Harry and David if infringement is proven. In assessing damages the court may enter judgment for any sum above the amount found as actual damages, up to three times. When a court finds a defendant intentionally counterfeited a registered trademark, the court must, unless the court finds extenuating circumstances, enter judgment for three times such profits or damages, whichever is greater, together with a reasonable attorney’s fee unless the Plaintiff elects for statutory damages up to $1,000,000 per counterfeit mark per type of goods or services sold, offered for sale, or distributed.

Damages awarded for trademark infringement could be in addition to awards for trademark dilution and unfair competition.

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