The maker of seasoning mix New Bae is standing by that name, arguing in its latest filing that Baltimore spice giant McCormick & Co. cannot make claims that the spice’s name infringes on the famous Old Bay trademark.
McCormick alleges Pittsburgh-based 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 last month.
In response to the lawsuit, Primal Palate denies the allegations and argues McCormick is barred from making those claims under doctrines of fair use, parody comparative advertising and descriptive use, according to a filing from last week.
“We do not see any merit to their claims, as we feel like it’s far from likely to confuse customers, and our blends are also very, very different. In fact, the way we named it was meant to differentiate it, not to mention we don’t even know what the ingredients are in Old Bay,” said Primal Palate co-founder Bill Staley in an emailed statement on Monday.
“We’re going to stand by our right to market this organic blend, and continue to offer healthy, organic, flavorful spice blends,” he added.
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).
After McCormick filed the lawsuit in December, Staley said the name was giving a “nod” to Old Bay but that Primal Palate thinks consumers benefit “from healthy competition between different products.” Primal Palate gave a similar response to a cease-and-desist letter McCormick sent the company in April, according to the lawsuit.
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 Monday on Primal Palate’s latest filing.
The spice giant, which recently opened its revamped headquarters in Hunt Valley, commented publicly on the case after filing the lawsuit, saying “Old Bay is one of the most cherished brands in the McCormick portfolio and we intend to defend it.”
The case is McCormick & Company, Incorporated v. Primal Palate, LLC, Case No.: 1:18-cv-03799-RDB.