Two Wisconsin sausage makers who squared off in court last year are headed back to court again as Johnsonville Sausage, LLC has filed a lawsuit alleging Klement Sausage Co., Inc. has infringed on its packaging patents.
Sheboygan Falls-based Johnsonville filed its federal lawsuit in the Eastern District of Wisconsin last month, alleging Klement packaging for sausages had become “confusingly similar and substantially the same” to the patented design Johnsonville uses.
A Klement spokesperson said the company could not comment on the lawsuit at this time. Klement is expected to provide an answer in court documents in the near future.
The two companies went to court last year with Milwaukee-based Klement suing Johnsonville for using the term “Backyard Grilled Brat.” Klement has a trademark on the term “Backyard Bratwurst.” The companies eventually reached a settlement that prevented Johnsonville from using the terms or similar ones, but still allowed references like “get that great backyard taste.”
The current lawsuit centers on the curved design elements in fresh sausage trays. Johnsonville contends that it developed trays with a rounded shape to stand out from the “sea of sameness” in the grocery store packaged sausage section.
The company says the “novel sausage tray,” which features curves on each of the shorter sides of the packaging, allow consumers to “quickly differentiate Johnsonville’s products.”
Johnsonville received a patent on the design in 2011.
The company says sometime after it received the patent, Klement began using a tray that allegedly infringed on its patent.
The Klement tray uses a design that has a curved edge to hold the sausages but still has straight outer edges.
Johnsonville’s lawsuit contends the patented element is the use of the curve edge and the overall shape doesn’t matter for determining if an infringement occurred.
The company alleges the infringement is “intentional, willful and in reckless disregard of Johnsonville’s patent rights.”
Johnsonville says the tray “has an overall appearance that is confusingly similar and substantially the same … in the eyes of the ordinary observer.”
Johnsonville is seeking an injunction against Klement, along with financial relief. The company is also asking for additional money if the infringement was “willful” and an additional declaration that this is an “exceptional case” that could result in additional damages.
