Quoc Viet Foods, Inc. v. VV Foods, LLC

ORDER GRANTING DEFENDANT’S MOTION FOR JUDGMENT AS A MATTER OF LAW

I. INTRODUCTION AND BACKGROUND

This is a trademark case involving soup base for pho, a Vietnamese noodle soup. The traditional preparation of pho is highly labor-intensive: a pho cook will begin by boiling beef bones for 30 minutes, discarding the water, washing the bones, and then boiling them again to slowly extract the bone marrow and make a broth. (Dkt. 270-1 [“Reddy Decl.”] Exh. 1 at 12-13.) Properly done, this process takes about a day. (Id. at 13.) Crucially, while the broth is cooking, the cook must scrape away detritus and scum that floats to the top of the pot. (Id.) Failing to do so will leave the broth cloudy instead of clear, as desired: (Id.) A pho cook needs to tend the pot for many hours, periodically scraping the top and slowly extracting the marrow. (Id. at 14.) Eventually meat and noodles are added to the broth to create the finished soup.

To simplify this process for individual consumers who do not have the time necessary to prepare pho, Tuan Nguyen—the president and CEO of Plaintiff Quoc Viet, Inc.—devised a soup base, sold in paste form, to which consumers could add water and quickly create…