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Declaration of Ryu Yokoi Hellman's - Unilever v Hampton Creek Just Mayo

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Declaration of Ryu Yokoi Hellman's - Unilever v Hampton Creek Just Mayo
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  Bruce P. Keller (bpkeller@debevoise.com)David H. Bernstein (dhbernstein@debevoise.com)*Michael Potenza (mpotenza@debevoise.com)Jared I. Kagan (jikagan@debevoise.com)*DEBEVOISE & PLIMPTON LLP919 Third Avenue New York, New York 10022(212) 909-6000Attorneys for Conopco, Inc. *admitted pro hac vice UNITED STATES DISTRICT COURTDISTRICT OF NEW JERSEY----------------------------------------------------------------------- xCONOPCO, INC., doing business as UNILEVER,Plaintiff,-against-HAMPTON CREEK, INC.,Defendant.:::::::::14 Civ. 06856 (WHW)(CLW) DECLARATIONOFRYUYOKOI ----------------------------------------------------------------------- xI, Ryu Yokoi, declare as follows:1. I am Brand Development Director at Conopco, Inc., which does businessas Unilever (“Unilever”). I am responsible for overseeing brand strategy, innovation anddevelopment of, among other products, the Best Foods® and Hellmann’s® brands of mayonnaise.2. I submit this declaration in support of Unilever’s motion for a preliminaryinjunction against Hampton Creek, Inc. (“Hampton Creek,”) to prohibit it from falselyadvertising and distributing its plant-based, vegan alternative to real mayonnaise under  Case 2:14-cv-06856-WHW-CLW Document 10-7 Filed 11/07/14 Page 1 of 13 PageID: 124  2the name  Just Mayo . This declaration is based on my personal knowledge, my review of  business records over which I have control or to which I have regular access in myemployment, and my review of publicly available documents. If called as a witness, Icould and would testify competently as to all of the facts contained herein. THEHELLMAN’S ® ANDBESTFOODS ® BRANDSOFREALMAYONNAISE. 3. In 1905, Richard Hellmann, an immigrant from Germany, began using hisfamily recipe for mayonnaise in salads in his delicatessen on the Upper West Side of Manhattan. His mayonnaise proved so popular that he began selling it packaged inwooden “boats,” that otherwise were used to weigh butter. To differentiate varieties, he put a blue ribbon on one of the wooden boats. The “blue ribbon” variety becameenormously popular and Hellmann soon devoted his entire business to jarring and sellingHellmann’s mayonnaise.4. At about the same time, in California, a company called Best Foodsintroduced an equally popular mayonnaise product. In 1932, Best Foods® acquiredHellmann’s® and decided to keep both brands. For over a century, Best Foods®mayonnaise has been the most popular brand of mayonnaise west of the RockyMountains, and Hellmann’s® has been the most popular brand east of the Rockies. THEMAYONNAISEPRODUCTCATEGORY. 5. The Food and Drug Administration (“FDA”) has issued regulations thatgovern use of the term “mayonnaise.” Among other requirements, the FDA’s “standardof identity” specifies the key ingredients that a product must contain to qualify as Case 2:14-cv-06856-WHW-CLW Document 10-7 Filed 11/07/14 Page 2 of 13 PageID: 125  3“mayonnaise”: egg yolks, vegetable oil and an acidifying ingredient (vinegar, lemon juice or lime juice). This standard of identity for “mayonnaise” was developed inresponse to prior efforts to pass off as “mayonnaise” products that were diluted or did notcontain the ingredients necessary to qualify as real mayonnaise.6. For nearly 80 years, Hellmann’s® and Best Foods® have supported themayonnaise category by investing in advertising that elevates quality perception bycommunicating its ingredients, specifically eggs. Hellmann’s® and Best Foods®advertising campaigns have stressed the importance of the key constituent ingredients of mayonnaise by emphasizing that Hellmann’s® and Best Foods® are made with real,simple ingredients – eggs, oil and vinegar. Examples of these advertisements areattached as Exhibit A.7. Unilever’s mayonnaise advertising also emphasizes that real mayonnaisecan be used, not only as a spread on sandwiches, but in cooking as well. Examples of advertisements showing how mayonnaise can be used in cooking are attached as ExhibitB and Exhibit C.8. Consumers expect real mayonnaise to contain egg, oil and vinegar (or lemon juice), as reflected in the common dictionary definition of mayonnaise as “adressing  made chiefly of egg yolks , vegetable oils, and vinegar or lemon juice.” MerriamWebster Online Dictionary,  available at   http://www.merriam-webster.com/ (emphasisadded). Similarly, the American Heritage College Dictionary (3d ed. 1993) definesmayonnaise as “[a] dressing made of beaten raw  egg yolk  , oil, lemon juice or vinegar,and seasonings, (emphasis added), Merriam-Webster’s Collegiate Dictionary (11th ed. Case 2:14-cv-06856-WHW-CLW Document 10-7 Filed 11/07/14 Page 3 of 13 PageID: 126  42004) defines mayonnaise as “a dressing made of   egg yolks , vegetable oils, and vinegar or lemon juice.” (emphasis added), and dictionary.com defines mayonnaise as “a thick dressing of   egg yolks , vinegar or lemon juice, oil, and seasonings, used for salads,sandwiches, vegetable dishes, etc.”  Available at   http://dictionary.reference.com(emphasis added). FALSELABELINGANDADVERTISINGOF  JUST MAYO 9. Hampton Creek produces a variety of sandwich spreads that it packages and sells under the name  Just Mayo . The  Just Mayo  packaging prominently featuresthe name  Just Mayo  with the word “Just” appearing in smallcursive writing above the significantly larger word “Mayo”in block letters. The name appears below an image of alarge egg on a brown label that is wrapped around atransparent container such that the sandwich spread inside isvisible. The labeling is depicted to the right above, and inExhibit D.10.  Just Mayo , however, is not mayonnaise. Itdoes not contain  any  egg ingredients. As shown at right andin Exhibit E, the  Just Mayo  packaging lists the ingredientsas: “Non-GMO Expeller Pressed Canola Oil, Filtered Water, Lemon Juice, WhiteVinegar, 2% or less of the following: Organic Sugar, Salt, Pea Protein, Spices, Modified Case 2:14-cv-06856-WHW-CLW Document 10-7 Filed 11/07/14 Page 4 of 13 PageID: 127

Penn State MPM

Jul 23, 2017
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