Tootsie Roll Industries has filed a trademark infringement action alleging Lafayette Bay Products, LLC, doing business as Spunky Pup, illegally copied its trade dress by manufacturing and selling a product called "Tootsie Pups." Tootsie Roll Indus. LLC v. Lafayette Bay Prods. LLC, No. 21-1997 (N.D. Ill., E. Div., filed April 14, 2021). Tootsie Roll Industries alleges that the dog treats sold as Tootsie Pups are shaped and colored like Tootsie Roll Midgees, "being brown and cylindrically shaped with a length approximately two times its diameter." Further, the treats are sold in packages that allegedly echo the Tootsie Roll Midgees packaging, including "prominent wording in the same position and the same white font, the large, dark brown middle panel, and the bright stripes on each side of the panel." Tootsie Roll Industries also notes that it has licensed its marks for sale on pet items, allegedly resulting in a likelihood of…
Tag Archives trade dress
The U.S. Court of Appeals for the Federal Circuit has dismissed a challenge to trade dress protection granted to Al Johnson's Swedish Restaurant & Butik Inc., a Wisconsin restaurant that features grazing goats on its rooftop, brought by an attorney who found the trade dress "demeaning to goats." Bank v. Al Johnson's Swedish Restaurant & Butik Inc., No. 19-1880 (Fed. Cir., entered December 9, 2019). The attorney argued that the trade dress of the restaurant, which includes a rooftop covered in grass and several goats grazing on it, is "offensive" and "denigrates the value he places on the respect, dignity, and worth of animals." The Trademark Trial and Appeal Board found this argument insufficient to establish standing; the Federal Circuit agreed and dismissed the appeal.
An Ohio federal court has granted Spangler Candy Co. a preliminary injunction in its lawsuit alleging that Tootsie Roll Industries copied the packaging of its Dum Dums candy. Spangler Candy Co. v. Tootsie Roll Indus., No. 18-1146 (N.D. Ohio, entered March 13, 2019). The court found the Dum Dums red bag not inherently distinctive, instead relying on evidence that Tootsie had intent to copy because it "specifically recognized the similarity between the violators’ color scheme, had multiple other options, and chose to proceed with the similar design anyway." The court also found that "the amount-of-sales and established-place-in-the-market weigh strongly in Spangler's favor."
Sugarfina and Sweet Pete's have reached an agreement to settle allegations that Sweet Pete's infringed Sugarfina's trademarks, copyrights, patent and trade dress by copying the "museum-quality Lucite" used to package its candies. Sugarfina Inc. v. Sweet Pete's, No. 17-4456 (C.D. Cal., settlement notice filed March 5, 2019). Under the agreement, Sweet Pete's will pay $2 million and change its packaging from the allegedly infringing cubes.
In-N-Out Burgers has filed a lawsuit alleging that Puma North America Inc. infringed its trademarks and trade dress with two pairs of shoes called "California Drive Thru" and "Cali-0 Drive Thru." In-N-Out Burgers v. Puma N. Am. Inc., No. 19-0413 (C.D. Cal., filed March 1, 2019). The shoes feature shades of red and yellow similar to In-N-Out's trademarked color scheme and liners decorated to look like hamburgers, and Puma allegedly marketed the shoes with images of hamburger-related items such as mustard. In-N-Out alleges that Puma is intentionally confusing consumers into believing that the companies have an agreement and cites multiple news stories mistakenly calling the shoes a collaboration between the brands. For allegations of trademark and trade dress infringement, In-N-Out seeks injunctions, damages, destruction of infringing materials and attorney's fees.
Kervan USA has agreed to change the packaging of its Sunkist fruit snacks and the shape of its candy following a lawsuit filed by Promotion in Motion Inc., which produces Welch's fruit snacks. Promotion in Motion Inc. v. Kervan USA LLC, No. 18-11670 (D.N.J., entered November 6, 2018). Kervan will change the background color of the packages for its fruit snacks to avoid confusion with packages of Welch's fruit snacks, and it will change the shape of its watermelon candies to avoid the use of the "distinctive three-dimensional trapezoid shape" of Promotion in Motion's Sour Jacks. Kervan will also sell off its existing supply of allegedly infringing products and destroy any remaining units after 90 days.
Promotion in Motion Inc., which produces Welch’s Fruit Snacks, has filed a lawsuit alleging that Kervan USA's packaging and product design for Sunkist Fruit Gummies infringe its trademarks and trade dress. Promotion in Motion Inc., v. Kervan USA LLC, No. 18-11670 (D.N.J., filed July 16, 2018). Although Sunkist Fruit Gummies have not been released, Kervan has publicly displayed the intended packaging at trade shows and online, Promotion in Motion alleges, and it asserts that the packaging “closely copies” the Welch's packaging by using similar design elements and color as well as the identical claim “Fruit is our 1st Ingredient.” Promotion in Motion also contends that Kervan imports and distributes a wedge-shaped sour watermelon candy under various product labels that violates the trade dress of its Sour Jacks, which is advertised with the slogan “Respect the Wedge” and an emphasis on the candy’s shape. Alleging trademark infringement, trade dress infringement, false designation of…
Spangler Candy Co. has filed a lawsuit alleging that the packaging for Tootsie Roll Industries LLC's Charms Mini Pops infringes its Dum Dums trade dress. Spangler Candy Co. v. Tootsie Roll Indus., LLC, No. 18-1146 (N.D. Ohio, filed May 18, 2018). Spangler asserts that for decades it has sold its lollipops in red bags with the brand name in white letters above a display window, a red border at the bottom and a yellow circle or oval with blue numerals in the center. The complaint alleges that Tootsie Roll has changed its Charms Mini Pops packaging from a yellow bag to a bag that resembles the Dum Dums bag. Further, pallet displays of the products at some retailers show bags inside similar yellow boxes, the complaint asserts, making the “overall visual impression” of the two products “deceptively and confusingly similar.” Claiming trade dress infringement and unfair competition, Spangler seeks damages, injunctive relief,…
The maker of Jack Daniel’s has filed suit against two Texas companies alleging they infringed the Tennessee whiskey’s trademark and trade dress by selling a line of whiskies in similarly shaped bottles with similar labeling. Jack Daniel’s Props., Inc., v. Dynasty Spirits, Inc., No. 18-2400 (N.D. Cal., filed April 20, 2018). The complaint alleges that Tennessee whiskey has been sold under the Jack Daniel’s mark “continuously since 1875, except during Prohibition” and is sold in a “square bottle with angled shoulders, beveled corners, and a ribbed neck, a black cap, a black neck wrap closure with white printing bearing the OLD NO. 7 mark, and a label with a white on black color scheme bearing the JACK DANIEL’S mark depicted in arched lettering at the top of the label [] and the word ‘Tennessee’ depicted in script.” The competitor whiskies “all feature a square bottle with angled shoulders, beveled corners…
Green Crush, a retailer selling juice, smoothie and aguas frescas beverages, has filed a lawsuit alleging that a former Green Crush manager and a former contractor engaged in corporate espionage, asserting that they used the chain’s proprietary information and infringed its trademarks and trade dress to start a competing company. Green Crush, LLC v. Paradise Splash 1, Inc., No. 17-1856 (C.D. Cal., filed October 23, 2017). The complaint alleges that the manager frequently asked senior Green Crush employees about “distribution operations, specific equipment, detailed drink ingredients, the design, placement, setting and layout of drink containers and cups, and the process and recipes used” before leaving to start a competing juice store. Further, Green Crush argues, the manager and contractor solicited Green Crush employees to work for them; allegedly, some of those employees asked “if the store under construction was a [Green Crush] store because it looked just like one.” Seeking…
