PHILADELPHIA – Lawyers for Springdale, Ark.-based Tyson Foods, Inc. criticized Park LLC for filing its trademark infringement lawsuit just as grilling season got underway. In court documents, a lawyer for Tyson said an injunction alone would harm the company; but the timing of the lawsuit was aimed at spreading the damage.
“Plaintiff waited until the beginning of the grilling season to file this motion,” the document stated. “A preliminary injunction would be financially disastrous and irreparably injure Defendants’ famous BALL PARK brand, which is among the very best-selling hot dog brands, if not the best-selling hot dog brand, in the United States.”
Parks LLC is suing Tyson Foods and The Hillshire Brands Co. for trademark infringement and false advertising. Parks claims Tyson and Hillshire appropriated the Parks brand by using “Park’s Finest” on the Ball Park’s brand of premium frankfurters. Parks is seeking an injunction to keep Tyson from selling the product, as well as damages and attorneys’ fees.
But Parks abandoned the trademark, Tyson said in court documents, “because it failed to use the mark in commerce for a three-year period and/or ceased use of the mark with no intent to resume use and/or engaged in uncontrolled licensing.”
In a statement by Randel Springer, partner with the law firm of Womble Carlyle Sandridge & Rice LLC based in Winston-Salem, NC, Sara Lee filed its intent to use the name Park's Finest for hot dogs on Sept. 9, 2013. A trademark examiner found no pending applications or registered trademarks that would block Sara Lee's application. However, after the application was made public by the US Trademark and Patent Office, Parks LLC filed its notice of opposition on June 17, 2014.
Court documents show that Park’s Finest hot dogs have been a money-maker for Tyson Foods. In a statement from Tim Smith, vice president and general manager of the Rapid Growth Business unit for Tyson, the company spent $14 million to advertise the premium franks. In 2014, sales for Ball Park’s Finest hot dogs exceeded $30 million — two-thirds of which came during April through September which is considered to be outdoor grilling season in the food industry. That same year, more than 7 million packages of hot dogs were sold. The sales track record of the premium hot dogs encouraged Tyson to add Jalapeno Cheddar and Slow-Cooked Chili flavors to the Park’s Finest line.
The Hillshire Brands Company, which Tyson acquired in July 2014, started work on the premium in 2012, according to Smiths. He said Hillshire named the product Ball Park Park’s Finest to convey the premium quality of the hot dogs under the Ball Park brand. Hillshire later chose the word “Park’s” in Park’s Finest as shorthand to its Ball Park brand.
“Our market research and testing confirmed that “Park's Finest” evoked thought among consumers of going to the ball park and that consumers linked Park's Finest to the famous Ball Park brand,” Smith said. Park’s Finest hot dogs went on sale in February 2014 and became available nationwide in March.
|||Tyson faces irreparable financial, reputational damage|||
Tyson Foods says the wild success of Park’s Finest hot dogs among consumers could unravel if the company were forced to stop selling the product. In court documents, Tamara Elliott, senior brand manager for Ball Park hot dogs, said Tyson would “suffer massive financial and reputational harm” should the court decide to grant Parks LLC’s proposed preliminary motion injunction against Tyson.
For example, the company would need to re-train and reassign at least 26 employees to avoid layoffs.
Additionally, Tyson invested approximately $4.3 million in a manufacturing plant in New London, Wis., to manufacture the premium hot dogs. From July 2013 through June 2014, the company spent $14 million on radio, television and online advertisement, consumer promotion, coupons and public relations. Tyson spent another $2 million on slotting fees paid to retailers. The company faces losing its investments if an injunction is granted, according to court documents.
Under an injunction, Tyson would be forced to stop all use of Ball Park Park’s Finest on packaging and advertisements, Elliott said. Tyson stands to lose at least $85 million in sales revenue – and the damage doesn’t end there, according to Elliott.
“Based on my 15-year career in consumer product branding and nearly 10 years in food branding and marketing, a substantial proportion of the millions of consumers of Ball Park Park’s Finest hot dogs likely will not know why the products were removed from store shelves and may assume that there is a contamination or health issue with the hot dogs themselves,” Elliott said.
She added that Tyson would be inundated by customer complaints, and those customers would likely choose a competitor’s products.
“If Ball Park Park’s Finest returned to the market in the event Tyson prevailed in this case, sales would forever be dampened by the fact that the product was previously removed from the shelves,” Elliott said.
