Dtocs, a Portland maker of eco-friendly, single-use tableware, is defending itself in a patent and trademark infringement lawsuit in U.S. District Court in Portland.
VerTerra Ltd., and the Norwalk, Connecticut, company’s CEO Michael Dwork filed the claim in June, alleging infringement, unfair competition, false designation of origin under Oregon common law and unlawful business and trade practices.
The company is asking a judge to order Dtocs to stop making or selling any product that infringes on VerTerra’s patents and marks and to pay unspecified damages and costs.
The complaint says that VerTerra seeks to be “a stylishly sustainable alternative to disposable paper and plastic plates.” It created plates made of naturally fallen palm fronds and developed techniques to make dinnerware from leftover wood and rice paper, according to the lawsuit.
“Starting in 2006, VerTerra has sought to turn over a new leaf in the disposable dinnerware industry,” the suit says. “Since that time, VerTerra has designed and sold unique eco-friendly disposable dinnerware, marrying design, functionality and sustainability.”
VerTerra claims that the Smithsonian recognized its “clean and stylish design,” which also won awards from the Natural Products Association, the New York State Restaurant Association and International Hotel Motel Association.
Dtocs was founded in 2019 by Pallavi Pande, who won the Portland Business Journal’s Makers and Manufacturers Startup of the Year for 2023. Pande creates sustainable dinnerware out of fallen palm leaves, with products available at Market of Choice and on Amazon, Walmart and Wayfair online. She told the Business Journal she expects to end the year with upwards of $1 million in revenue.
Pande declined to comment on the lawsuit. Her attorneys at Schwabe, Williamson & Wyatt in Portland said in a motion to dismiss that trademark laws vigorously protect Dtocs’ right to accurately describe its products to customers, under the “classic fair use” defense.
VerTerra, represented by attorney Jonathan Berschadsky of New York, claims that several of Dtocs’ products are “substantially the same” as its own patented designs. The company claims the mark Dtocs has used is identical to each of VerTerra’s marks, alleging that Dtocs adopted them “in bad faith in an effort to benefit from the goodwill associated with the VerTerra marks.” VerTerra says it has priority in the “dinnerware from fallen leaves” mark.
“Dtocs has used spurious marks that are identical with, or substantially indistinguishable from the registered VerTerra marks,” the suit says. “Dtocs’ use of the VerTerra Marks is likely to trick customers into having the false impression that Dtocs is an authorized dealer of VerTerra when the same is not true.”
VerTerra claims that it has lost sales of its competing products “due to Dtocs’ infringement” of its patents.
Dtocs’ attorneys — Nika Aldrich, Scott Eads and Jason Wrubleski of Schwabe — argue Dtocs’ advertising simply describes “the environmentally friendly, disposable dinnerware that Dtocs markets and sells under its own registered Dtocs trademark.” Those descriptions “communicate important product information to prospective customers,” including the fact that the dinnerware is made from naturally fallen, rather than harvested, plant material.
Furthermore, Dtocs’ attorneys argue, the company is not attempting to pass itself off as affiliated with VerTerra but to straightforwardly identify itself “as the source of its goods by repeated use of its own registered mark and palm tree logo” and name.
