Gel Spice Co. Reply Brief in Further Support of its Motion for Summary Judgment regarding Badia's COMPLETE SEASONING Trademark Claim

Ronald Coleman

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In its moving papers Gel demonstrated that the incontestable registrations for Badia's alleged trademarks for the words "complete seasoning" and their Spanish equivalent, "sazon completa" are of essentially no significance as a matter of law. Incontestability is irrelevant here because Gel has shown that Badia's alleged marks are generic descriptions of a genus of seasoning blends. In this respect, complete seasoning can be compared to the word "cola," which is generic for cola-flavored soft drinks. Though many colas are sold by many sources and they are known to differ in quality and taste, they still comprise a genus understood by all consumers as "cola" ("what are you?"). It is the manufacturer's or bottler's task to distinguish its offering by branding ("who are you?"). The time has come for Badia to do the same for its variety of sazon completa.

Additionally, Gel's initial submission on its motion for summary judgment set out the well-established legal rule that "incontestability" has little or no relevance to consideration of the strength of a trademark, especially one that is at best descriptive, as the alleged Badia marks are. Gel therefore sets out here, once again and more precisely in terms of Badia's attempt to respond to Gel's comprehensive demolition of that position, the legal principles and facts that establish that there is only one thing here that, as a matter of law, is incontestable: That Badia's supposed trademark rights are illusory.

Gel also eviscerates the false impression Badia seeks to create by recycling the legally baseless argument that because other competitors have backed down in the face of Badia's repeated promises to "bet the company" on litigation, it must have legitimate rights. In fact, the law is clear that such "settlements" — here made on terms Badia has been at great pains to keep private — prove only that a party such as Badia is prepared to spend a lot of money to get its way. The time has come, however, for Badia to stop using the rubric of "unfair competition" to keep true competition out of the market.

Gel's summary judgment submission revealed that no disputed questions of material fact or legal arguments exist on the question of Gel's entitlement to judgment as a matter of law. As set out below, Badia's opposition fails completely to rebut Gel's arguments and proofs. For this reason, Gel is entitled to summary judgment on all of Badia's claims and on its counterclaim for cancellation of the Badia registrations.

(The court denied both sides' motions for summary judgment and set the case down for trial.)

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Reference Info: Legal Memoranda: Motions for Summary Judgment/Adjudication | Federal, 11th Circuit, Florida | United States

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