Paula Deen & Wal-Mart Accused of Copying Distinctive Candle Packaging.

SAN DIEGO, May 4, 2009 -- McCall's Country Canning Inc. initiated a federal action today accusing Paula Deen Enterprises, LLC and Wal-Mart Stores Inc. of copying their distinctive candle packaging.

The complaint filed today in the U.S. District Court for the Southern District of California also named Paul Deen Retail, Inc., Paula Deen Online, Inc., and MVP Group International Inc. as defendants.

McCall's produces and sells candles in a glass jar featuring a metal lid, handle, and band around the neck of the bottle. McCall's claims to adopting this packaging in February, 1998 because it was rustic in appearance which was ornamental, aesthetic and uniquely identifiable as packaging for candles.

The defendants are accused of selling candles in similar packaging and causing confusion in the market place regarding the source of the product.

The packaging or overall appearance of a product, known as trade dress, can be so unique as to serve as an identifier of the source of the product which is entitled to protection under the law. Generally, the first party to adopt a trademark or trade dress has the superior claim of ownership and can prohibit others from using something similar.

Records maintained by the United States Patent & Trademark Office indicate McCall's registered their trade dress on November 15, 2005.

Counts for trademark dilution, unfair competition, and false designation of origin appear in the complaint along with a claim of trademark infringement. MCCall's is seeking compensatory damages, punitive damages, attorneys fees and the destruction of all infringing products.

In assessing damages of a federally registered trademark, 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.

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