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North American Olive Oil Association v. D'Avolio Inc.

United States District Court, E.D. New York

November 2, 2017

NORTH AMERICAN OLIVE OIL ASSOCIATION, Plaintiff,
v.
D'AVOILIO INC., O LIVE BROOKLYN LLC, THE CRUSHED OLIVE OF BABYLON, INC., THE CRUSHED OLIVE OF HUNTINGTON, INC., THE CRUSHED OLIVE OF SAYVILLE, INC., THE CRUSHED OLIVE OF STONYBROOK, INC., THE CRUSHED OLIVE OF WADING RIVER, INC. and VERONICA FOODS COMPANY, Defendants.

          NORRIS MCLAUGHLIN & MARCUS, PA Counsel for the Plaintiff, By: Ami Bhatt, Esq., Danielle M. Defilippis, Esq., Of Counsel

          LESTER SCHWAB KATZ & DWYER, LLP Counsel for the Defendant D'Avolio Inc., By: Thomas A. Catalano, Esq., Dennis M. Rothman, Esq., Of Counsel

          STERN & SCHURIN, LLP Counsel for the Defendant O Live Brooklyn LLC, By: Richard S. Schurin, Esq., Evgeny Krasnov, Esq., Michael Barer, Esq., Steven Stern, Esq., Of Counsel.

          GOLDBERG SEGALLA LLP Co-Counsel for the Defendants The Crushed Olive of Babylon, Inc., The Crushed Olive of Huntington, Inc., The Crushed Olive of Sayville, Inc., The Crushed Olive of Stonybrook, Inc., and The Crushed Olive of Wading River, Inc., By: Daniel B. Moar, Esq., Aaron J. Aisen, Esq., Daniel W. Gerber, Esq., Of Counsel

          AHMUTY DEMERS & MCMANUS Co-Counsel for the Defendant The Crushed Olive of Babylon, Inc., By: Janice Berkowitz, Esq., Of Counsel.

          Gutride Safier LLP Counsel for the Veronica Foods Company., By: Adam J. Gutride, Esq., Seth Safier, Esq., Of Counsel.

          MEMORANDUM OF DECISION & ORDER

          ARTHUR D. SPATT UNITED STATES DISTRICT JUDGE.

         This is an action commenced by the North American Olive Oil Association (“NAOOA” or the “Plaintiff”) against the Defendants, D'Avolio, Inc. (“D'Avolio”), O Live Brooklyn LLC (“O Live Brooklyn”), the Crushed Olive of Babylon, Inc., the Crushed Olive of Huntington, Inc., the Crushed Olive of Sayville, Inc., the Crushed Olive of Stonybrook, Inc., the Crushed Olive of Wading River, Inc., (together, the “Crushed Olive”) and Veronica Foods Company (“Veronica”) (collectively the “Defendants”). The complaint alleges that the Defendants are attempting to discredit and weaken the imported olive oil industry by challenging the purported health benefits that the Plaintiff asserts are associated with the consumption of olive oil, and by using their own “certification” to encourage customers to purchase olive oil produced by Veronica. The Plaintiff asserts that such actions violate (1) Section 43(a) of the Lanham Act (Count 1); (2) N.Y. Gen. Bus. Law §§ 349, 350 (Count 3); and constitute (3) unfair competition under New York State law (Count 2); (4) defamation/slander under New York State law (Count 4); and (5) request that the Court cancel Veronica's trademark registration at issue (Count 5).

         Presently before the Court are two motions to dismiss the Plaintiff's entire complaint, pursuant to Federal Rule of Civil Procedure (“Fed. R. Civ. P.” or “Rule”) 12(b)(1), and Rule 12(b)(6). One motion was filed by O Live Brooklyn and Veronica Foods and another by Crushed Olive (together, the “Instant Motions”).

         For the following reasons, the Defendants' Instant Motions are granted, pursuant to Rule 12(b)(1).

         I. BACKGROUND

         A. The Factual Background

         The following facts are drawn from the Plaintiff's complaint, and for the purposes of the instant motion, are accepted as true.

         1. The Parties

         The Plaintiff is a New Jersey-based trade association composed of olive oil marketers, packagers, producers and importers. The NAOOA was established in 1989 “to foster a better understanding of olive oil and its taste, versatility, and health benefits, and to ensure that olive oil sold in North America adheres to internationally recognized guidelines.” It's members account for roughly 55 to 60% of the total olive oil sales in the United States. The NAOOA is a division of the non-profit Association of Food Industries, Inc. Complaint ¶ 2.

         Veronica is a foreign company, which produces olive oil. The company's principal place of business is located at 1991 Dennison Street, Oakland, CA and it conducts business in New York State. Id. ¶ 11.

         D'Avolio is a domestic corporation that exclusively sells olive oil from Veronica. The company's principal place of business is located at 5409 Main Street, Williamsville, NY. Id. ¶ 3.

         O'Live Brooklyn, LLC, is a domestic limited liability corporation that sells olive oil. The company's principal place of business is located at 140 Fifth Avenue, Brooklyn, NY. Id. ¶ 4.

         The Crushed Olive is a Long Island, NY based retailer of olive oils with six locations. Id. ¶¶ 5-10.

         2. ...


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