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When is a curl not a twist

It’s no secret that Canadians sometimes view Americans as excessively litigious, believing our neighbours to the south regularly sue each other over almost anything. And the food industry is certainly not immune to those lawsuits—especially these days, as people become more internet-informed about products, ingredients and claims, leading them to file suit more frequently against manufacturers, grocers and restaurateurs. And with competition being so fierce, we see companies going to great lengths to protect themselves.

And then there are occasions where a food manufacturer sues a direct rival— which is exactly the situation Canada’s McCain Foods finds itself in. U.S. frozen french-fry maker J.R. Simplot Co. commenced legal action against McCain over its Twisted Potato fries, claiming McCain copied Simplot’s Sidewinders french-fry design, essentially stealing Simplot’s “intellectual property.” Legal action has been launched in Canada, the United States and the European Union. Needless to say, McCain has countersued.

Simplot alleges that McCain’s Twisted Potatoes infringe on the industrial design of what it’s calling a “distinctive” spiral in its Sidewinders product. According to an article in The Globe and Mail: “In Canada, having an industrial design registered with the government gives a company the exclusive rights to sell products with that design for up to 10 years from when it was registered. The Sidewinder debuted in Canada in 2013 and five related industrial designs were registered on May 5, 2014. McCain registered its industrial design for the Twisted Potato on Sept. 24, 2014 and the product hit the market in 2016.”

Simplot wants the courts to put a stop to the production of McCain’s twisted product. McCain, however, is denying any wrongdoing, arguing their product differs substantively from Simplot’s. As the Globe article explains, McCain’s defense noted its own product is “thicker than the Sidewinders (10 mm to 12 mm compared with 5 mm to 6 mm), has fewer turns (one twist instead of two or three) and rotates in different directions (McCain’s fries twist either clockwise or counterclockwise, whereas Simplot’s potato product turns only clockwise).” McCain also noted the Sidewinder has ridged surfaces, which its own Twisted Potato doesn’t have.

In its countersuit, McCain alleges that Simplot actually infringed on McCain’s intellectual property and, essentially, that the Sidewinder design isn’t actually all that unique.

According to a legal expert quoted in the Globe article, “the degree of distinctiveness will likely be a central issue in the cases.” One might guess that means the court must decide whether 5 mm is that different from 10 mm, and perhaps whether there is enough difference between clockwise and counterclockwise to issue a ruling.

At first blush, this whole french-fry battle could seem almost humorous. But it’s not at all humorous, really, because millions of dollars in product sales could hang in the balance.

In its suit, Simplot said McCain’s activities are an attempt to “piggyback” on its investment in Sidewinders by launching a copycat product “without investing its own time, research or money into making a distinctive and successful product of their own.” Clearly, McCain sees the matter differently.

These suits stretch back as far as 2016, but are still working their way through the courts. In Europe, the Court of Appeal at The Hague just recently upheld an injunction to prevent McCain from selling its curvy product (called Rustic Twist there), while Canada’s Federal Court is scheduled to hear the case next spring.

We’ll just have to wait and see how this twisty tale turns out.

This article appeared in Canadian Grocer’November issue.

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