Lodi olive oil company Corto Olive, L.P. has filed a lawsuit against Gemsa Oils for infringement of the 51-49 registered trademark and distinctive packaging for Corto Olive’s brand of blended oil.

“Gemsa’s attempt to deceive customers into thinking they are buying our product, instead of a commodity knock-off, is so flagrant that we had to take action,” said Tom Cortopassi, senior managing partner of Corto Olive.

“We are determined to enforce our rights in every instance that a competitor attempts to steal our intellectual property, and we will protect the restaurateurs and food service distributors who count on our trademark as the mark of premium olive oil.”

The lawsuit alleges Gemsa, based in La Mirada in Southern California, is infringing not only on Corto Olive’s 51-49 brand but has engaged in egregious copying of their distinctive trade dress.

After discovering that Gemsa was using a 51/49 trademark on packaging in May of 2018, Corto Olive sent the company a letter demanding that it halt use of the trademark. Corto Olive alleges that Gemsa failed to take corrective action, leaving them with no choice but to seek action in federal court.

“That’s a bunch of lies because we had responded to them here at the office, and then we also followed up with an attorney suggesting we should work together to see what pleased them so we can both have this product on the market,” Gemsa owner Emilio Viscomi said.

The suit identifies Cortopassi as the owner of the 51-49 trademark for edible oils, including salad oil, olive oil and cooking oil. Corto Olive was first marketed as early as January 2010. Cortopassi also owns common law rights in the 51-49 mark as well as an incontestable federal registration for the trademark.

Corto Olive uses and displays the 51-49 trademark prominently on the packaging for its 51-49 branded oil, and markets its products bearing the 51-49 Mark through many food service industry channels. In addition to featuring its 51-49 Mark, Corto Olive sells its 51-49 oil in packaging that bears a unique and distinctive trade dress.

The lawsuit alleges that Gemsa’s 51-49 Mark is not materially different from Corto Olive’s 51-49 Mark, which is likely to cause confusion, mistakes or deception for purchasers and potential purchasers as to the origin, sponsorship, or approval of the product.

Like Corto Olive, Gemsa’s packaging also includes a white background with green text along with a horizontal line near the top, with the brand name 51/49 featured under it.

The front panel of the packaging also features an image of green olive plant branches, with green olives stretching from the lower left side of the box to the center of the box with the text “Green Olive Branches,” and an image of the flowering part of a canola plant on the lower right with the text “Canola” similar to Corto Olive’s packaging.

In terms of the design of the box and the packaging, Viscomi said that has been Gemsa’s oil trademark for more than 25 years, so he doesn’t understand Corto Olive’s allegations.

According to Viscomi, Gemsa’s specialty has always been blended oils.

“We didn’t copy Corto, we just formulated another brand that would be useful for the food service industry and manufacturing. We’ve been doing these oils for 25 years,” Viscomi said.

Viscomi added that even though Gemsa came up with its own version of 51-49, it has stopped selling the product at the moment unless demanded by a client because they don’t want to have a dispute with Corto Olive.

“We are not here to spend attorney fees,” Viscomi said. “It’s not a product that is very popular at this time. It’s not popular at all actually, so like I said, I’m not interested in even marketing this product at this moment in time until we come up with a design of the label that we feel is proper.”

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