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San Antonio, TX-based Desert Glory Ltd. filed a lawsuit Sept. 20 in a federal court in Tucson, AZ, alleging that a competitor copied packaging it claims to be unique and distinctive.

The lawsuit claims trademark infringement and unfair competition by Ag-Mart Produce Inc., a Florida-based distributor of fruits and vegetables doing business as Santa Sweets Inc., with packing and distribution facilities in Nogales, AZ, and elsewhere.

Desert Glory's "NatureSweet Cherubs" brand of tomatoes, which are grown in greenhouses from proprietary seeds and vine-ripened, are sold in a bell- shaped package with a clear plastic lid. The complaint alleges that recently, Ag-Mart intentionally chose a similar package design for its “SweetRipes” grape tomatoes. The “NatureSweet Cherubs” package design is registered with the U.S. Trademark Office, according to Desert Glory officials.

Desert Glory President Bryant Ambelang told The Produce News Sept. 20, “We first started growing this product in 2001 and then didn’t even come out into the retail markets until 2006. We started in 2003 trying to develop the packaging for it because we recognized we needed to be able to give the consumer some sort of notation that, 'Hey, this is not the same clamshell grape tomato you’ve seen before. It took 36 months to develop the packaging and come up with ‘Cherubs’ name.”

On Sept. 21, Ag-Mart officials released the following statement to The Produce News:

“Ag-Mart just received today a copy of the lawsuit filed by Desert Glory and was surprised to learn that Desert Glory sued Ag-Mart because Desert Glory has never complained or even contacted Ag-Mart regarding any issues relating to the packaging of Ag-Mart ‘SweetRipes’ tomatoes. We reserve further comment until we have reviewed the court papers filed by Desert Glory.”

Mr. Ambelang said that the alleged similarities were pointed out to the company by customers, and that no attempts to contact Ag-Mart were made prior to litigation.

The lawsuit asks Ag-Mart to cease using its “SweetRipes” packaging and it also seeks any profits from that packaging as well as unspecified compensation for damages.

Mr. Ambelang said that “immediate withdrawal” of the Ag-Mart product would forestall the court action. We’re confident that if [Ag-Mart] withdrew the packaging immediately from the market, we could very quickly come to a settlement agreement. Our position is, let’s get this thing off the market as soon as possible. We know that for over a decade now Santa Sweets has been packing this product in clamshells; we’re confident [Ag-Mart] has plenty of clamshells to pack this in. We’re also communicating to everyone this a is trademark of Desert Glory and the brand ‘NatureSweet,’ and we intend to protect it to the full extent.”