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You Can’t Fight Big Condiment

April 19, 2021

Big Condiment mostly wins in a legal battle over a scrappy but not particularly successful entrepreneur. But if you're tired and hungry after shopping for a used car, there's relief for you in Louisiana.

Milt Policzer

By Milt Policzer

Courthouse News columnist; racehorse owner and breeder; one of those guys who always got picked last.

Big Condiment wins again. I’m speaking, of course, of a ruling issued last week by the U.S. Court of Appeals for the Fifth Circuit that mostly favored Kraft Heinz Foods Company over a small-time sauce maker.

Very small time. The plaintiff was a guy who decided to blend and bottle a mix of Walmart-brand mayonnaise and ketchup or Walmart-brand mustard and ketchup and call both of them “Metchup.” Then he sold the bottles in the lobby of a nine-room motel next to his used-car dealership in Lacombe, Louisiana.

“For better or worse, the market is not covered in Metchup,” says the ruling written in brilliantly straight-faced style by Judge James E. Graves Jr. I’m picturing him cackling while writing this. It’s good stuff.

After Heinz held an online contest to name its own mayo/ketchup mashup, the entrepreneurial plaintiff found a lawyer willing to sue Heinz because one of the contest entries it showed on its website was “Metchup.” Heinz, though, never sold any “Metchup” because the winning entry was “Mayochup.”

(Fifth Circuit image via Courthouse News)

Let’s stop to consider this for a moment. Why would “Mayochup” be the winning entry? There were more than 90 proposed names and that was the winner! How awful could all of those other names have been? Is there a complete lack of creativity in the condiment consumer world?

There’s more astonishment to be had. If you make it to page 9 of the ruling, you’ll discover that the plaintiff got expert testimony from “a marketing professor with a doctorate in communication studies” who claimed that typical consumers would confuse Mayochup with Metchup: “Dr. Henke pointed out that the words only differ by three letters.”

Good thing they found someone with a doctorate to point that out. I’m hoping the other side found a guy with a math degree to point out that those three letters are a pretty large percentage of the total amount of letters in those words. At least that’s how I’d respond.

If nothing else, this dispute should give us all hope — it means there are people and companies out there willing to tackle and solve problems. As Judge Graves pointed out, they grappled “with both the problem of having to contemplate ratios and the inconvenience of having to use two bottles when preparing a burger.”

It’s not a small contribution to society.

Here’s another problem that the plaintiff here could solve: What do you do if you’re really tired after shopping for a car and also need a condiment? There’s a market out there for car shoppers who need a night’s rest and some saucy flavor in one convenient spot.

Maybe call the franchise “Saucy Car Motel.” There shouldn’t be a trademark problem.

Fun fact: Driving a car is like basketball but not like tennis — at least in Minnesota.

I know this because a Minnesota Court of Appeals panel said so: “(A) lane is like the area of play in basketball (where a ball landing on the boundary line is out of bounds) and unlike the area of play in tennis (where a ball landing on the boundary line is in bounds).”

Just don’t try to argue the call —– you’ll get something worse than a technical foul.

You may be wondering why this is important. It’s because of the “common-sense understanding” of the danger of barely touching a line — “dangerous conditions can occur when even a small portion of a car extends out of bounds.”

As opposed to the safety you get being a nanometre inside the line.

Drive straight in Minnesota.

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