Some Claims Survive in|’HooAH!’ Energy Bar Case

(CN) - The government did not breach its contract with a vendor by buying "HooAH!" energy bars from other companies, the Court of Federal Claims ruled, but it may have bad-mouthed the vendor to military personnel and others outside the government.

In 2004, D'Andrea Brothers entered into a five-year research and development agreement with the Army for "HooAH!" energy and nutrition bars.

The Army licensed the "HooAH!" name and package design to D'Andrea Brothers for commercial sales, but reserved the right to use the trademarked battle cry for "governmental, non-commercial purposes."

But the business relationship apparently broke down in 2006, after D'Andrea Brothers registered a trademark for "OohRAH!," the Marine battle cry.

D'Andrea Brothers claimed the government sabotaged its efforts to sell the bars to the military by intentionally allowing other companies to sell HooAH! bars to the troops.

The energy bar maker said the Army also refused to work with D'Andrea Brothers to improve, test and market the bars to the military and the general public.

The government moved to dismiss the lawsuit for lack of jurisdiction, also arguing that the "HooAH!" trademark license covered only commercial sales to the public, not sales to the military, which formed the entire basis of D'Andrea's lawsuit.

The claims court rueld that the Army had reserved the right to let other manufacturers -- namely Sweet Productions Ltd. and Sterling Foods Co. -- produce HooAH! bars for use in MREs (meals ready to eat) and military dining halls.

"Food for troops or emergency rations ... are plainly 'for or on behalf of the government,'" Judge Nancy Firestone wrote, quoting the parties' contract.

However, Firestone allowed D'Andrea Brothers to proceed with its claims that the Army bad-mouthed the company to other military personnel and refused to cooperate by, among other things, changing the name of the troops' energy bars to "First Strike."

In December 2006, an Army team leader sent an email telling military staff to "cease and desist from distributing D'Andrea HooAH Bars, HooAH beverage and HooAH/OOHRAH bars until further notice."

The same team leader acknowledged in a 2007 email that "we may be opening up a huge can of worms with D'Andrea after they find out we are producing the [First Strike] Bar. They have lawyers, but so does the Army."

One email from an Army attorney stated that Christian D'Andrea "has been a nightmare for us, and for the Marines," and asked if the Army's trademark licensing agency could do anything "to bring him down several notches."

"The court finds that the plaintiff has established that there are disputed issues of fact regarding its claim that the government violated its duty of good faith and fair dealing by bad-mouthing the plaintiff to others within and outside the government," Firestone concluded.

The federal claims court ruled for the government on the breach of contract and related claims, but allowed D'Andrea to sue the Army for allegedly shirking its duty to cooperate and for bad-mouthing the company.

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