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
“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
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.”