Perry v. H. J. Heinz Company Brands, L.L.C.

In 2010 or 2011, Dennis Perry (plaintiff) started producing a mayonnaise-and-ketchup or mustard-and-ketchup brand called Metchup. Perry bought domain names using the name Metchup and registered the Metchup trademark in 2011, renewing the trademark in 2017. In 2018, the trademark attained incontestable status. Perry sold only 50 to 60 Metchup bottles to patrons of his small motel and car lot, with none sold online. In 2018, H. J. Heinz Company Brands, L.L.C. (Heinz) (defendant) began publicizing its own mayonnaise-ketchup blend for entry into the United States market. This entailed soliciting name proposals for the product from prospective consumers online. Although Metchup was one of the proposed names, Heinz did not select the name and only used a mock-up of the blend with the Metchup name in online advertising. Through a registration search, Heinz discovered the registration status of Metchup but concluded that abandonment of the trademark had likely occurred. Heinz settled on the name Mayochup and began to sell it in the United States market. Perry sued Heinz for trademark infringement. During the pendency of the proceedings, Perry reached out to national grocery chains and a hot-sauce store for potential distribution rights, with no success. Heinz filed a counterclaim to cancel Perry’s trademark registration on nonuse or abandonment grounds. Heinz then filed a motion for summary judgment, which the district court granted. Perry appealed the district court’s decision.