North Carolina Dairy Foundation, Inc. v. Foremost-McKesson, Inc.

Defendants, Foremost-McKesson, Inc. and Weyerhaeuser Company, appeal from an order granting a preliminary injunction in favor of plaintiffs, North Carolina Dairy Foundation, Inc; (Foundation), G. P. Gundlach & Company, and Knudsen Corporation, enjoining defendants from infringing upon plaintiffs’ trademark “Sweet Acidophilus” (hereafter “SA”) or engaging in any domestic marketing *103 activities using such trademark or any colorable imitation. Defendants contend that the trial court’s findings that the term is a protectable trademark through acquisition of a secondary meaning is not supported by law or the evidence. Our view of the record in light of established principles impels a contrary conclusion requiring affirmance of the challenged order.

Procedural Background

Plaintiffs filed a complaint for trademark infringement and unfair competition and false and misleading advertising alleging in substance that: plaintiff Foundation, a nonprofit foreign corporation, developed and perfected a new strain of lactobacillus acidophilus (LBA), a fermenting bacteria used in milk products to aid digestion. The new culture and processing technique eliminates the sour-taste effect…