Beruflich Dokumente
Kultur Dokumente
COMPLAINT
Plaintiff Post Consumer Brands, LLC (Post) states as follows for its Complaint against
Defendants General Mills, Inc. (GMI) and General Mills Sales, Inc. (GMS) (GMI and GMS
1. Post is the market leader for breakfast cereals sold in bags. Post has worked hard
to develop quality products and merchandising systems to improve the consumers buying
experience for bagged cereal products. In 2016, Post launched an innovative new plastic
merchandising system for displaying its bagged cereals on grocery store shelves. Each
merchandising system was marked Patent Pending because of Posts pending patent
system design to market with its own, recently-introduced line of bagged cereals:
BACKGROUND
2. In 2015, Post Holdings, Inc. (the St. Louis-based parent company of Plaintiff Post
Consumer Brands, LLC) acquired MOM Brands Company, LLC, a smaller breakfast cereal
manufacturer that for years has produced a successful line of value-priced bagged cereals under
its Malt-O-Meal brand. From the time Malt-O-Meal bagged cereals were first launched in the
inferior quality products and as being too big for store shelves. However, as boxed cereal sales
have declined recently, Malt-O-Meal bagged cereal sales have continued to grow. Post attributes
this growth to the value and quality of Posts products and Posts dedication to innovation in this
area as a whole. GM has now sought to capitalize on Posts bagged cereal success by rushing to
enter the bag cereal market with a copycat merchandising system that imitates Posts innovative
divider and merchandising system (the Post Divider and the Post Merchandising System)1
3. As explained in greater detail below, Post invested substantial time, money and
research in developing the Post Merchandising System. When the Post Merchandising System
came to market in 2016, no other merchandising system like it existed on the market. It was and
is a revolutionary departure from previous shelf merchandising systems, including those used
with bagged cereals. The innovative nature of the Post Divider has been recognized and
appreciated not only from a consumer and retailer standpoint, but also by the United States
Patent and Trademark Office (USPTO), which on September 26, 2017 issued U.S. Patent No.
1The 091 patent claims ornamental features of the Post Divider. Multiple dividers work together to create the Post
Merchandising System.
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D798,091 (the 091 patent) to Post.2 GMs use of the ornamental design claimed in the 091
4. This is an action for patent infringement under the patent laws of the United
States, Title 35 of the United States Code, arising from GMs infringement of the 091 patent by
its manufacture, use, offer for sale, sale in and/or importation into the United States of a copycat
5. Post seeks injunctive relief and has been damaged monetarily in an amount to be
determined at trial. Further, Post seeks to recover all other recoverable fees and costs.
PARTIES
place of business at 2503 S. Hanley Road, St. Louis, Missouri 63144. See Exhibit A. Posts
business located at 1 Red Devil Road, Hannibal, Missouri 63401. See Exhibit B.
business located at 1 Red Devil Road, Hannibal, Missouri, 63401. GMS is registered to do
business in Missouri and has appointed a registered agent in Missouri. See Exhibit C. Upon
information and belief, GMS has employees and hires and directs contractors and/or agents in
Missouri. Upon information and belief, GMS has substantial annual sales of GMS products in
Missouri.
2In addition to the 091 patent, Post has received two other design patents on the Post Dividers used in the Post
Merchandising System.
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9. Posts claims arise under the patent laws of the United States, 35 U.S.C. 1 et
seq. Subject matter jurisdiction exists pursuant to 28 U.S.C. 1331 and 1338(a) (patents).
10. This Court has personal jurisdiction over GMI and GMS. Upon information and
belief, GM owns, uses, or possesses a physical place of business in this judicial district located at
1 Red Devil Road, Hannibal, Missouri 63401. Upon information and belief, GM owns, uses, or
possesses other real estate in Missouri. GM has also committed the tortious acts complained of
herein in Missouri, including but not limited to the making, using, selling, or offering for sale
infringing products accused herein, and directed its infringing products at residents in the State
of Missouri and in this judicial district. Attached hereto as Exhibit D is a true and correct copy
of a photograph of the infringing products in use at a Walmart store located in Arnold, Missouri,
in this judicial district. GM distributes its infringing products within this judicial district,
including at Walmart stores in the St. Louis area. Further, Posts claims arise out of or relate to
11. Venue is proper in this judicial district pursuant to 28 U.S.C. 1391 and 1400(b)
because GM has committed acts of infringement in this judicial district where the infringing
product can be found, and has at least one regular and established physical place of business in
this judicial district located at 1 Red Devil Road, Hannibal, Missouri 63401 (depicted below).
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GM also does business in this judicial district through a permanent and continuous presence
here. Upon information and belief, GM has employees and pays contractors and/or agents in this
judicial district, including individuals who work with the infringing products in this judicial
district, and who oversee and conduct installation of the infringing merchandising systems in
retail grocery stores, such as Walmart. See Ex. D, Photograph of Infringing Product in Arnold,
Missouri.
Post
12. Post is a leading manufacturer and distributor of branded ready-to eat (RTE)
cereals, and markets and sells its RTE cereals in retail and grocery stores throughout the United
States.
13. The RTE breakfast cereal category is one of the most prominent and competitive
14. Posts RTE cereal brands include Honey Bunches of Oats, Pebbles, Great Grains,
Grape-Nuts, Post Shredded Wheat, Honeycomb, Golden Crisp, Post Raisin Bran, Alpha-Bits,
Moms Best, and Malt-O-Meal. Some of Posts cereal brands, including many of the Malt-O-
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15. Posts competitors, including GM, have criticized Posts Malt-O-Meal bagged
cereal line to customers and investors for years, believing Posts Malt-O-Meal bagged cereal to
16. For the past several years, sales of RTE boxed cereal have been declining, but
17. Post has achieved a great deal of commercial success with its RTE cereals that are
offered in bags, and has sold and continues to sell such products, through retailers across the
18. Historically, Posts bagged cereals were displayed in grocery stores using wire
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Those systems had several disadvantages. It was difficult to display the bagged cereals in a way
that consumers could quickly see the bags of cereal actually contained in the bins behind the
front panel. Bins appeared empty when one or two bags still remained, because the remaining
bags were obstructed from view by the horizontal banner-like signage shown in the below
photos. This problem was particularly noticeable on the top shelves. Further, the horizontal
banner-like signage did not fully distinguish Posts bagged cereals from competitors bagged
cereals, and was not effective in clearly communicating the specific product offerings to
consumers. A further disadvantage was that the wire bins were heavy, had many components,
did not efficiently use shelf space, and were difficult and expensive to install and adjust.
19. Over the course of several years, Post invested significant resources in the
development of a new merchandising system design for its leading brand of bagged cereals,
Malt-O-Meal. The Post Merchandising System has an open front and vertically-oriented,
trapezoidal front panel that allows for bagged cereal to be better organized and displayed to
consumers on store shelves, and also allows for consumers, store employees, or others to easily
see behind the front panel to discern the brand of cereal. Post included ornamental features on
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the Post Divider and has applied for and received United States design patents on these
20. The Post Divider features a front panel having a novel and distinctive ornamental
trapezoidal shape that was inspired by the trapezoidal shape of Posts well-known Malt-O-Meal
When installed, the Post Merchandising System allows for bagged cereals to be neatly aligned
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22. The ornamental trapezoidal front portion of the Post Merchandising System also
includes a clear cover for inserting vertical product image panels (PIPs) to display the brand of
cereal. The product image panels identify the specific bagged cereal product housed in the Post
Merchandising System and display the brand of the cereal to consumers. The colored, cardboard
product image panels are designed specifically to fit coextensively from edge-to-edge and top-to-
bottom with the uniquely dimensioned trapezoidal front portion of the Post Merchandising
System.
23. A Post Divider with a product insert panel installed in the trapezoidal front
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24. To highlight the improvements in Posts new design, Posts old wire
merchandising system (used prior to 2016) is depicted below next to the new Post Merchandising
System:
25. Post began using the Post Merchandising System in connection with the sale of its
bagged cereal products in 2016. Since that time, the Post Merchandising System has been used
in the sale of Posts bagged cereals throughout the United States, including at various grocery
retailers such as Walmart, Hy-Vee, Meijer, and Kroger stores. The Post Merchandising System
26. Because the Post Merchandising System optimizes the shelf space and functions
well with shorter stacks of cereal bags, Post is able to add a fifth shelf to the bagged cereal
section and stock 25% more bagged cereals on shelves than with the old wire merchandising
system. The Post Merchandising System has improved the shopability and appearance of
Posts bagged cereals for consumers and, in turn, has attracted new consumers and broadened
Posts customer base. The Post Merchandising System has also resulted in more repeat
purchasers of Posts bagged cereals. Additionally, the Post Merchandising System has driven
positive visual impact at the shelf and helped to dispel the notion that Posts bagged cereals are
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inferior products as compared to boxed cereals. The ornamental design of the Post Divider,
which was inspired by the logo, creates goodwill and brand awareness for Post.
27. Prior to launching the new design, Post applied for patent protection with respect
to the Post Divider used in the Post Merchandising System, which resulted in the issuance of the
091 patent on September 26, 2017. Post is the owner by assignment of the 091 patent.
28. The 091 patent is valid, enforceable, and duly issued in compliance with Title 35
of the United States Code. True and correct copies of the issue notification for the 091 patent
and allowed claim of the 091 patent are attached hereto as Exhibit E.3
29. The Post Merchandising System has been marked Patent Pending and otherwise
30. GM manufactures and sells RTE cereals. Historically, GM has sold breakfast
cereal only in traditional paperboard cartons, not in larger plastic bags like the ones offered by
Malt-O-Meal. Upon information and belief, in early 2017, GM began to package and sell some
3The 091 patent issued on September 26, 2017, just before this Complaint was filed. Post will supplement Exhibit
E with a true and correct copy of the 091 patent when it is printed.
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31. GM and Post are direct competitors in the RTE breakfast cereal category in the
food industry. GM is the second largest seller of RTE cereals in the United States, and Post is
the third largest seller. GM and Post deal in the same channels of trade and both do substantial
business in the same stores. Stores generally sell all cereal products in the same aisle and display
32. After Post began displaying its bagged cereals using the Post Merchandising
System at stores across the nation, GM emerged with its own divider and divider system (the
Infringing Divider and the Infringing Merchandising System) for its bagged cereals in early
2017. The divider used in the Infringing Merchandising System copies the Post Merchandising
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33. The Infringing Divider is depicted below as compared to the Post Divider and the
4The solid lines depicted in the figures of the 091 patent represent the design claimed in the 091 patent. The
dashed lines depicted in the figures of the 091 patent represent unclaimed environment and form no part of the
claimed design.
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34. Without Posts authorization, GM has made, used, sold, offered for sale, and/or
imported into the United States the Infringing Merchandising System that infringes the 091
patent. Upon information and belief, GM has implemented the Infringing Merchandising System
35. An ordinary observer, familiar with the prior art in the field, would perceive the
overall appearance of the design of the 091 patent and the design of the Infringing Divider and
Infringing Merchandising System to be substantially the same. Such an ordinary observer would
be deceived into believing that the Infringing Divider and Infringing Merchandising System are
36. The 091 patent protects several novel and ornamental aspects of the Post
Merchandising System design. These ornamental features are illustrated in Figures 1-7 of the
091 patent.
37. The ordinary observer, informed by the relevant prior art, would be misled by the
Infringing Divider and Infringing Merchandising System into believing that GM is authorized to
distribute products that copy the ornamental designs claimed in the 091 patent.
38. The Infringing Divider features the claimed designs of the 091 patent.
39. On store shelves, the Infringing Merchandising System (depicted on the next page
on the right) is often used immediately adjacent to the Post Merchandising System (depicted on
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40. GMs imitation of the Post Merchandising System dilutes the uniqueness of
Posts overall marketing and brand, harming Post beyond infringement of the 091 patent.
41. Because of the proximity and similarity of the products and merchandising
systems, customers, store employees and/or vendors stocking the parties cereals on shelf have
erroneously placed GMs bagged cereals into the Post Merchandising System (depicted below)
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42. The dimensions of the front trapezoidal panel of the Infringing Divider and the
Infringing Merchandising System are virtually identical to the dimensions of the trapezoidal
front panel of the Post Merchandising System. Thus, Posts product image panels for its branded
cereals, which are designed specifically to fit and be used exclusively with the Post
Merchandising System, have been inserted into the front panels of the Infringing Merchandising
System. Similarly, GMs product image panels, which have virtually identical dimensions, have
been inserted into the front panels of the Post Merchandising System:
43. In late February 2017, Post first became aware that GM was making and using the
44. On March 7, 2017 and May 17, 2017, Post, through counsel, sent letters to
William Miller, Chief IP Counsel for Defendant General Mills, Inc., advising that Post had filed
design and utility patent applications on the Post Divider and expressing Posts concerns that
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45. On June 20, 2017, Post, through counsel, sent another letter to counsel for
Defendant General Mills, Inc. and, in response to GM counsels request, provided some of the
design drawings covered by the then-pending design patent application for the 091 patent.
46. Upon information and belief, GM was aware of the Post Merchandising System
before it launched its Infringing Merchandising System. Post believes the evidence will show
that GM deliberately copied the Post Divider and the Post Merchandising System when it
COUNT I
GMS INFRINGEMENT OF THE 091 PATENT
47. Post incorporates by reference, as if fully set forth herein, paragraphs 1-46 of this
Complaint.
48. On September 26, 2017, the United States Patent and Trademark Office duly and
49. The 091 patent is directed to an ornamental design for a shelf divider for display
50. Post is the owner of the entire right, title and interest in and to the 091 patent, by
assignment.
51. GM knew of Posts pending patent applications that issued as the 091 patent.
Upon information and belief, at least as early as the service of this Complaint, GM has been and
is infringing the 091 patent under one or more subsections of 35 U.S.C. 271.
52. GM has made, used, sold, and/or offered for sale within the United States, and/or
imported into the United States, one or more divider products, including but not limited to the
Infringing Divider used in the Infringing Merchandising System, that infringe the 091 patent.
The design of GMs Infringing Divider used in the Infringing Merchandising System, in the eye
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of the ordinary observer, who is familiar with the prior art in the field, appears substantially
53. Upon information and belief, GM knew of Posts pending patent application that
issued as the 091 patent and has continued to make, use, sell, offer for sale, or import the
determined at trial.
55. GM has irreparably injured Post and such injury will continue unless GM is
A. Preliminarily5 and permanently enjoin GM and any person acting in concert with
B. Declare that the 091 patent is valid, enforceable, and infringed by GM;
C. Award Post the profits of GM, in accordance with 35 U.S.C. 289, resulting from
GMs infringement of the 091 patent, actual damages to Post in an amount not
less than a reasonable royalty for GMs infringement, and other damages and
D. Order the removal from the marketplace and destruction of all of GMs products
5 Post will file a separate motion for preliminary injunction and accompanying memorandum.
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E. Prohibit GM from further making, using, selling, offering for sale, or importing of
patent;
K. Order GM to pay Post damages for GMs willful infringement, since at least the
L. Order GM to report to this Court of its compliance with the foregoing within
M. For such other and further relief that the Court deems just and proper.
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EXHIBIT A
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,Steve Simon, Secretary of State of Minnesota, do certify that: The following business
entity has duly complied with the relevant provisions of Minnesota Statutes listed below,
and is formed or authorized to do business in Minnesota on and after this date with all the
powers, rights and privileges, and subject to the limitations, duties and restrictions, set
forth in that chapter.
The business entity is now legally registered under the laws of Minnesota.
Steve Simon
Secretary of State
State of Minnesota
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STATE OF MINNESOTA
OFFICE OF THE SECRETARY OF STATE
FILED
01/06/2016 11:59 PM
Steve Simon
Secretary of State
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EXHIBIT B
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EXHIBIT C
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EXHIBIT D
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EXHIBIT E
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EXHIBIT F
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Thomas A. Polcyn
314 552 6331 direct
tpolcyn@thompsoncoburn.com
March 7, 2017
William Miller
Chief IP Counsel
General Mills, Inc.
1 General Mills Blvd.
Minneapolis, MN 55426
Re: Shelf Partitions for Displaying Bagged Cereal Used by General Mills, Inc.
It has come to our attention that General Mills, Inc. (General Mills) has started using shelf
partitions for displaying bagged cereal that are strikingly similar in appearance and design to
shelf partitions used by Post for its line of Malt-O-Meal branded bagged cereals.
Posts shelf partitions comprise a front panel with a novel and distinctive trapezoidal shape that
is intended to mimic the trapezoidal shape of Posts well-known Malt-O-Meal logo. We
understand that General Mills shelf partition includes a front panel having the same trapezoidal
shape.
We wish to put General Mills on notice that Post has several design and utility patent
applications pending before the U.S. Patent and Trademark Office, and corresponding patent
applications pending outside the U.S., which appear to cover General Mills shelf partitions.
Indeed, Posts shelf partitions have been marked with a Patent Pending notice. The many
similarities between Posts shelf partitions and the General Mills version, in particular the use of
a nearly identical trapezoidal front panel, seem to be more than mere coincidence.
6523818.1
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William Miller
March 7, 2017
Page 2
For obvious reasons, Post is concerned about this and will be monitoring the situation closely. I
would ask you to look into the matter and suggest that General Mills take our intent to vigorously
protect our intellectual property rights into consideration in the further development and use of
its shelf partitions.
Sincerely,
By
Thomas A. Polcyn
Partner
TAP/sal
6523818.1
Case: 4:17-cv-02471 Doc. #: 1-7 Filed: 09/26/17 Page: 1 of 3 PageID #: 131
EXHIBIT G
Case: 4:17-cv-02471 Doc. #: 1-7 Filed: 09/26/17 Page: 2 of 3 PageID #: 132
Thomas A. Polcyn
314 552 6331 direct
tpolcyn@thompsoncoburn.com
William Miller
Chief IP Counsel
General Mills, Inc.
1 General Mills Blvd.
Minneapolis, MN 55426
Re: Shelf Partitions for Displaying Bagged Cereal Used by General Mills, Inc.
We have now learned that General Mills has started using the same strikingly similar shelf
partitions in the bagged cereal section of a Hy-Vee grocery store in Omaha, Nebraska. The
following photographs were taken last week by one of our retail sales representatives.
6562838.1
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William Miller
May 17, 2017
Page 2
The photo on the left is General Mills shelf partition. The photo on the right shows General
Mills shelf partitions on the top two shelves, and Posts shelf partitions on the bottom three
shelves. As you can see, from a consumers perspective, the shelf partition designs are nearly
identical.
At least some, if not most, of the claims in Posts pending design and utility patent applications
appear to read on General Mills partition. Post is also concerned that this blatant reproduction
of its design, including the distinctive trapezoidal front panel, will mislead consumers. The
similarities are too substantial to be a coincidence, and suggest that General Mills has willfully
copied Posts design.
We are, of course, providing you with this advance notice of our position in an effort to avoid the
disruption and expense of a formal dispute. Therefore, we are requesting an explanation of
General Mills intentions and a commitment to modify your design.
Sincerely,
By
Thomas A. Polcyn
Partner
TAP/sal
cc: Jill Bollettieri, VP & General Counsel, Post Consumer Brands
6562838.1
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EXHIBIT H
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Thomas A. Polcyn
314 552 6331 direct
tpolcyn@thompsoncoburn.com
Greg Kaihoi
Assistant General Counsel
General Mills, Inc.
1 General Mills Blvd.
Minneapolis, MN 55426
Re: Shelf Partitions for Displaying Bagged Cereal Used by General Mills, Inc.
Dear Greg:
Thank you once again for your time on the phone last Wednesday. Though we have some
important issues to work through, I thought it was productive to open a dialogue, and I
appreciate your professionalism.
During our call, I described some of the things Post is seeing in the marketplace as a result of
General Mills use of shelf partitions that are strikingly similar to Posts shelf partitions,
particularly when viewed from the front of the shelf, which is of course the consumers
perspective. As shown below, customers, store employees and/or vendors are putting General
Mills bags into Posts racks, and Post bags into General Mills racks.
6579719.1
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Greg Kaihoi
June 20, 2017
Page 2
Even more troubling, as you can see below, Malt O Meal product labels are being inserted into
the front panel of General Mills shelf partitions, which has been made possible due to the fact
that the front panel of General Mills shelf partitions and Posts shelf partitions appear
substantially the same to the ordinary observer. They are virtually identical, both dimensionally
and proportionally.
6579719.1
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Greg Kaihoi
June 20, 2017
Page 3
As I explained on our call, this is a major concern for Post, particularly in light of its significant
investment of resources in developing a proprietary display system. Frankly, this confusion at
shelf is a disservice to everyone, including General Mills.
During our call, you noted that it is difficult for you to respond meaningfully to our patent-related
concerns, or to counsel your client on design changes, without having issued patents in front of
you. While our patents have not yet been issued, we have received allowances on two design
patents, and a successful examination on a third design patent that will soon be allowed.
Drawings for those are enclosed for your review. We also have a pending utility patent
application that we are confident will result in allowed claims that read on General Mills shelf-
partitions, as currently configured.
For now, I suggest that you focus on the broadest of the three design patent applications, the
enclosure identified as Drawings#3.pdf, which claims the ornamental appearance of the front
portion (specifically the trapezoidal shape) of the shelf partition.
Once you have had a chance to review this additional information, and have had an opportunity
to confer with your client as needed, I suggest a follow up call. Let me know your availability for
early next week. Thank you.
Sincerely,
By
Thomas A. Polcyn
Partner
TAP/sal
6579719.1
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FIG. 1
FIG. 2 FIG. 3
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FIG. 4
FIG. 5
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FIG. 6 FIG. 7
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FIG. 8
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FIG. 1
FIG. 2 FIG. 3
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FIG. 4
FIG. 5
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FIG. 6 FIG. 7
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FIG. 8
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FIG. 1
FIG. 2 FIG. 3
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FIG. 4
FIG. 5
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FIG. 6 FIG. 7
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The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
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ResetCase: 4:17-cv-02471 Doc. #: 1-10 Filed: 09/26/17 Page: 1 of 1 PageID #: 151
The undersigned affirms that the information provided above is true and correct.