Berry Sterling Corp. has launched its second lawsuit over a large-sized plastic drinking cup that fits in a standard car cup holder. Packaging Resources Inc. of Lake Forest, Ill., the defendant in the case, injection molds and sells a plastic cup that Berry says infringes on a design patent it has held since Sept. 19.
Berry Sterling molds its re-usable polyethylene cup in 32-ounce and larger sizes for McDonald's Corp. and Coca-Cola Co. - two of its biggest customers last year - convenience stores and other fast-food chains, said Martin Imbler, president and chief executive of parent Berry Plastics Corp. McDonald's bought 44 million of the printed cups for a promotion pairing National Football League players with Warner Bros. cartoon characters, like Miami Dolphins quarterback Dan Marino and Daffy Duck.
``We feel we have a valid patent, and we feel we have to defend our rights,'' Imbler said in a recent telephone interview from Berry's Evansville, Ind., headquarters. Subsidiary Berry Sterling is based in Winchester, Va.
Last week, PRI President Howard Hoeper confirmed Berry's suit, which was filed Dec. 27 in federal court in New York, but he said he could not commenton it. PRI and Berry Plastics are nearly neck-and-neck when itcomes to sales of injection molded products, at roughly $110 million and $106 million, respectively.
On Sept. 21 Berry filed a similar lawsuit in Alexandria, Va., against Pescor Plastics Inc. of Fort Worth, Texas, and Pescor customer Boddie Noell Enterprises of Rocky Mount, N.C., known for its Hardee's restaurant franchise.
A pretrial conference is scheduled for Feb. 28.
Pescor had moved for a summary judgment in the suit that its plastic cup does not infringe on Berry's design, but the federal court in Alexandria denied the request Dec. 15.
At the hearing, Pescor's attorney argued that the disputed cup's main features - its wide mouth and narrow, fluted bottom, which allows it to fit in a standard car cup holder - are functional, not ornamental, as Berry claims.
But U.S. District Judge Leonie M. Brinkema, who reviewed the cups and the patent, said that because Berry holds the patent, ``there is a presumption that there was a novelty to the design and that the patent was properly issued.''
``I find design-patent cases among the most arcane,'' she said. ``You sometimes wonder why or how a patent could even be given for some of the designs. And yet the patent has been given.''
Imbler called the ruling ``favorable.'' Meanwhile Pescor still is making and selling the cup to customers, including Boddie Noell, said Pescor Vice President Tim Kilpatrick. Both he and Imbler said printed logos and designs are a big selling point for the cups' customers.
``There are so many differences between the cups that we will ultimately be victorious in this lawsuit,'' Kilpatrick said. ``We're defending the suit ... until we're found noninfringing.''
He said the cup in question makes up less than 10 percent of Pescor's sales, which he estimated at $18 million for the year ending March 31.
Although both Berry suits request that the defendants stop making and selling the cups, ``licensing is always a possibility,'' Imbler said.
However, he played down competition from either PRI or Pescor, saying neither holds a very significant share of the market for the cup.
Berry, which dominates that market, according to Imbler, mainly hopes to take business away from paper cups, which he said do not make good carryout vessels for large-sized drinks because of their tendency to get soggy and leak.
``The paper cup market is absolutely enormous,'' about five times the size of the $100 million market for plastic drink cups, he said.