U.S. District Judge Catherine C. Blake dealt harshly with The Wilder Spice Co., which also forged a “letter of certification” from the Union of Orthodox Jewish Congregations of America.
The award is three times the statutory amount that Union Orthodox could have recovered for a non-willful trademark infringement, said David Butler, one of the plaintiff’s attorneys.
In addition, Blake awarded the Manhattan-based Orthodox Union — owner of the more than 80-year-old kosher certification mark, a capital “U” inside an “O” — $19,000 in attorneys’ fees.
“It was pretty serious activity, and the court took it seriously,” Butler said.
Wilder Foods Inc. President and CEO Robert D. Wilder, who founded the company with his mother, was out of the office today and did not return a call seeking comment.
When the suit was filed in November, a Wilder executive vice president called the dispute “a huge misunderstanding.” That executive, Danny Christofano, said today he left the company in April.
Kosher agencies charge a fee to supervise or inspect a food company’s facilities to ensure that the food is manufactured in accordance with Jewish dietary laws. In exchange, the company may display the agency’s kosher symbol on its packaging, a privilege that can gain the company religious Jewish customers, as well as non-religious buyers who believe kosher products are made under stricter standards.
Christofano previously said the company’s raw materials are certified kosher, most of them by the Orthodox Union, and that some of Wilder’s own products are certified by a smaller supervision agency, EarthKosher.
Wilder put the OU symbol on some of its products by mistake because it did not understand “that we had to have permission” from the Orthodox Union to use the mark even if its suppliers’ products are kosher, Christofano said in November.
Christofano also said at the time that Wilder had stopped using the Orthodox Union’s mark and had offered to have the Orthodox Union inspect its facilities and certify its products.
However, the company never responded to the plaintiff’s allegations in court. “It seems to me that if they had a story to tell they probably should’ve told that to the court,” said Butler, of Bingham McCutchen LLP in Washington, D.C. “They obviously chose not to.”
In April, after Wilder failed to respond, Blake permanently enjoined it from using the OU mark and declared the case “exceptional,” which authorized the plaintiff to seek its legal costs and hinted at the multiplied damages.
“The court really had no choice in the circumstances,” Butler said of the ruling. “So while the result is significant, it’s not terribly surprising.”