United States District Court, E.D. New York
MCLAUGHLIN & MARCUS, PA Counsel for the Plaintiff, By:
Ami Bhatt, Esq., Danielle M. Defilippis, Esq., Of Counsel
SCHWAB KATZ & DWYER, LLP Counsel for the Defendant
D'Avolio Inc., By: Thomas A. Catalano, Esq., Dennis M.
Rothman, Esq., Of Counsel
& 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
DEMERS & MCMANUS Co-Counsel for the Defendant The Crushed
Olive of Babylon, Inc., By: Janice Berkowitz, Esq., Of
Gutride Safier LLP Counsel for the Veronica Foods Company.,
By: Adam J. Gutride, Esq., Seth Safier, Esq., Of Counsel.
MEMORANDUM OF DECISION & ORDER
D. SPATT UNITED STATES DISTRICT JUDGE.
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
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
following reasons, the Defendants' Instant Motions are
granted, pursuant to Rule 12(b)(1).
The Factual Background
following facts are drawn from the Plaintiff's complaint,
and for the purposes of the instant motion, are accepted as
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.
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.
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.
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.
Crushed Olive is a Long Island, NY based retailer of olive
oils with six locations. Id. ¶¶ 5-10.