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Old Bay sues New Bae alleging trademark infringement

An Old Bay display at the McCormick World of Flavors store at the Baltimore Harborplace. (Maximilian Franz / The Daily Record)

An Old Bay display at the McCormick World of Flavors store at the Baltimore Harborplace. (Maximilian Franz / The Daily Record)

A lawsuit filed in federal court this week seeks to protect a name synonymous with Maryland cuisine: Old Bay. McCormick & Co. alleges Pittsburgh-based Primal Palate’s seasoning blend “New Bae” infringes on the Baltimore spice maker’s trademark for the company’s signature spice.

McCormick alleges Primal Palate has been using marketing taglines such as “out with the Old, and in with the NEW” to “capitalize on the fame and goodwill of McCormick’s OLD BAY Mark,” according to the lawsuit filed in U.S. District Court in Baltimore on Monday.

Primal Palate launched New Bae in October 2017, and touts how well the spice goes with crab legs, fries and Bloody Marys on its website. The company also alludes to the pun in the name (BAE stands for “before anyone else” and is used to refer to a significant other).

McCormick goes on to argue that the use of New Bae in that context is designed to “diminish the reputation” of Old Bay and “create a wrongful association” with the famous Maryland seasoning blend, the lawsuit states.

In addition, McCormick argues that consumers are already confusing the two spices. In the lawsuit, the company points to comments on Primal Palate’s promotions of New Bae including, “I’ve used old bay for forever. Cannot wait to try new bae”; “grown up on Old Bay…seriously might have to taste test”; “I’m also from Baltimore so really curious about the new bae,” “Old Bay over New Bae anyday;” and “I’m sorry, but nothing can replace Old Bay. Try again.” McCormick states those comments show people think Old Bay and New Bae are somehow connected, according to the lawsuit.

New Bae’s promotions are likely to confuse consumers about the source, affiliation and sponsorship of the product, McCormick argues. The name also “falsely” suggests that Primal Palate’s seasoning is a “new” version of Old Bay, that it is somehow affiliated with McCormick or that New Bae is made with the same products as Old Bay, the lawsuit states.

Primal Palate registered a trademark for New Bae as an organic spice in November 2017. In April, McCormick sent Primal Palate a cease-and-desist letter about its use of the name New Bae. Primal Palate admitted it named the spice mix New Bae because of its association with Old Bay, the lawsuit states.

“As a small company that is relatively new to the market, Primal Palate sees McCormick as a foundation of the spice industry … In choosing the name ‘New Bae,’ Primal Palate was giving a ‘nod’ to the impact that the Old Bay seasoning has made on the spice market,” Primal Palate said in response to McCormick’s cease-and-desist, according to the lawsuit.

McCormick filed an opposition to Primal Palate’s New Bae trademark in August on the grounds that it would take away from the strength of the Old Bay brand and would likely confuse consumers, the lawsuit states.

McCormick is seeking an injunction to stop Primal Palate from using the New Bae name, an accounting of the company’s profits from selling New Bae products, treble damages and destruction of catalogs, articles, products, displays, promotional items and anything else bearing the name New Bae, the lawsuit states.

A spokeswoman for McCormick declined to comment on pending litigation on Tuesday. Primal Palate did not respond to a request for comment.

The case is McCormick & Company, Incorporated v. Primal Palate, LLC, Case No.: 1:18-cv-03799-RDB.

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