Judge Denis Hurley

1-800 Flowers.com (Flowers) uses the “Fruit Bouquet Marks” for fresh cut fruit arrangements. Edible Arrangements uses the “Berry Marks” for its fruit arrangements and gifts. Flowers applied to register versions of its Fruit Bouquets Marks. Edible’s notices of opposition with the Patent and Trademark Office’s Trademark Trial and Appeal Board (TTAB) contending damages from the marks’ registration and use. In later telephone conversations Edible’s attorney objected to the Fruit Bouquet Marks’ registration and use. Discussing Topp-Cola Co. v. Coca-Cola Co. district court dismissed Flowers’ suit seeking a declaration that its marks neither infringed nor interfered with Edible’s rights. The language of Edible’s TTAB oppositions and its counsel’s telephone conversation statements to Flowers’ counsel did not show a case or controversy meeting the Declaratory Judgment Act’s “case of actual controversy” requirement. Distinguishing Russian Standard Vodka (USA) Inc. v. Allied Domecq Spirits & Wine USA Inc., Blue Athletic Inc. v. Nordstrom Inc. and Telebrands Corp. v. Exceptional Products Inc. the court found the telephone call did not identify an Article III case or controversy under the standard set out in MedImmune Inc. v. Genentech Inc.