Tracking Down The OU Imposters

The typical kosher consumer picks a coveted food item off the shelf to take a closer look at the label. If he/she sees the familiar Orthodox Union OU symbol, the product has undoubtedly found a home. Over 60 percent of America’s kosher-certified products bear the OU and kosher consumers rely on it as a sign of assurance that the product meets the highest kosher standards. Thus, when a product displaying an unauthorized OU appears in the marketplace, the Orthodox Union responds swiftly and efficiently.

Out of 400,000 labels, the OU discovers a number of illegal ones each year, a problem that affects many kosher certifying agencies. According to Baruch Cywiak, of the OU’s Trademark Compliance Department, the cases often turn out to be unintentional errors. One case scenario: A major New York supermarket chain introduces a new line of canned meat. In order to create a mock-up of the new label, the supermarket graphics department takes an existing label of OU-certified canned peas and carrots. The designer inadvertently copies the OU trademark. An innocent error, but an error nonetheless, and the OU’s Trademark Compliance team has learned to maintain constant and thorough vigilance.

Because of the potential damage a misrepresented OU could produce, this finely-tuned operation has its investigative process down pat. “First we have to ascertain which company is behind the label,” says Mr. Cywiak. “Then we find out where the item was manufactured, which leads to the most pressing concern – has the product been produced at a certified facility to the standards of our kosher program?” The answer to that question will decide the urgency of the situation, as well as the next step. The OU promptly sends a firm letter to the company in question explaining that the symbol is an internationally registered certification mark and unauthorized use of it constitutes trademark infringement. The letter is followed up by a phone call. “We don’t want to be just an anonymous voice,” says Cywiak. “We want them to know that there are people behind the OU who are not out to make their lives difficult. We are simply looking out for the best interest of their consumers, who are also our consumers.”

At this point, the OU has a number of options ranging from stopping further distribution of the product to demanding a complete market withdrawal of the product. Aside from the direct actions which the OU will require the company to take, the OU may place “Kosher Alerts” in all of the Jewish newspapers in the area of distribution, as well as on the OU web site, e-mail subscription list and other kashrut-related web sites. The OU will input a number of factors in its decision regarding which course of action the infringing company will be required to take.

Tell it to the Judge:

Although most companies are willing to cooperate with the OU, and the majority of symbol-misuse cases are amicably settled, there are those who are not so quick to comply. “We make it clear to them that we are serious about taking the case to court,” says Cywiak. The normal time frame for the judicial process in cases involving trademark infringement can drag on for months or even years. In the case of an unauthorized OU, delay in controlling the unauthorized use is unacceptable as the consumers are being misled as long as the product bearing the OU remains in the market. The OU may seek a Temporary Restraining Order (TRO) from a federal judge. A TRO is obtained in instances of unauthorized use of a trademarked symbol for which the owner of the symbol is unable to obtain relief. Essentially, the OU requests that the judge issue an order halting further use of the symbol.

A distributor selling a snack item called Veggie Crisp was initially licensed by the OU to have the product produced at a particular OU certified manufacturer. At some point, the distributor and manufacturer terminated their relationship. As required by OU policy, the manufacturer informed the OU of the severance. A year later, while conducting its routine audits of supermarket products and date codes, the OU discovered that the product had reappeared on the marketplace with an OU on the bag. The OU checked with the previous manufacturer and asked if he was still manufacturing the product. After studying the date-code marked on the package, he confirmed that the date code was not consistent with his plant’s format. The OU contacted the distributor whose president insisted that he was manufacturing the product at the OU certified facility. “He was lying through his teeth,” says Cywiak. “We also had a strong suspicion that the product was treif (not kosher).”

The OU promptly purchased a bag of Veggie Crisps at a supermarket and brought the evidence to court. “We told the judge that there was an urgency here that dictated that we can’t go through the normal channels, which involves filing a standard law suit,” says Cywiak. “To avoid the typical six-month wait, we asked for a temporary restraining order and stressed the need to put a stop to the sale of the product. The OU had to present enough convincing arguments to clearly demonstrate the need for immediate injunctive relief.” The OU was successful in bringing the company to court and one week later, the Veggie Crisp culprits received an injunction, and the product was pulled from the market. Ultimately, the distributor paid compensatory damages for infringement as well.

The French Dis-Connection:

Since the OU is an internationally respected symbol of kashrut, its misuse can also occur across the globe. A large European company involved with a bakery product line placed the OU on some of its non-certified kosher products. “In order to protect ourselves,” says Cywiak, “the OU holds multiple trademarks in numerous countries.” This particular bakery item was sold in France.

The OU immediately contacted the company, demanding that the product be withdrawn from the marketplace. The Trademark Compliance team soon discovered that European retailers adhered to a policy that prevented a manufacturer or label owner, once a product is distributed to a store, from recalling a product. “The manufacturer refused to cooperate with us and we initiated a law suit,” says Cywiak. “The judge kept handing us deadlines of only a few hours time to provide technical information. Mind you, the French three hours was the middle of the night for us. I was on the phone with our attorney at three in the morning.”

The OU persevered with a landmark ruling. The judge instructed the manufacturer to send notification to all the retailers and distributors, informing them of the unauthorized use of the OU and requested that they send the product back.

From the Most Likely and Unlikely Sources:

Word of symbol infringement reaches the OU Kashrut Department from a variety of sources. The 500 Rabbinic Field Representatives, who oversee plants across the US and in other countries, sometimes spot a suspicious looking product bearing the OU. Calls also come in from other kashrut certification agencies and even from governmental agencies charged with monitoring the food industry. “I once received a call from an individual at the Minnesota Department of Agriculture,” reports Howard Katzenstein, OU’s Director of Business Management and Trademark Compliance. “He was investigating a company that bore fraudulent organic statements on its labels in addition to an unauthorized OU.” Other unauthorized OU’s are actually turned in by OU-certified companies reporting on competitors who are unlawfully stealing a share of the kosher market. Watchful consumers have also reported questionable uses of the OU symbol (such as the can of shrimp ‘proudly’ bearing the OU symbol).

The OU recently won a judgment against a water-bottling company for its misuse of the symbol and its subsequent refusal to remove the product from the market. Constantly vigilant of the integrity of the OU symbol, once a case is closed the OU visits the recalcitrant manufacturers to confirm that they are no longer using it under false pretenses. Due to such an inspection, further evidence was discovered against the water bottler, and the OU brought the case back to the federal court for resolution.

Today, supermarket chains and label owners are dictating the marketplace. And more and more manufacturers are finding it in their best financial interest to obtain OU certification. “It is commonplace for a manufacturer to be told by his customers, ‘I’d buy from you, but I want you to be kosher certified by particular certification agencies,’” says Cywiak. “The truth is – kosher certification is not a terribly expensive venture. In the big picture of advertising, it’s a drop in the bucket.”

The fraudulent companies learn a very important lesson the hard way – crime doesn’t pay; kosher certification does.

OU Kosher Staff