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24 May 2018

Lollipop bags at centre of trade dress claim

US confectionery manufacturer Spangler’s Candy Company has sued Tootsie Roll Industries for infringing the trade dress of its lollipop bags.

Spangler filed its complaint at the US District Court for the Northern District of Ohio’s Western Division on Friday, May 18.

The plaintiff’s Dum Dums lollipops are sold in red bags with the brand name in white letters and a display window showing the product. A yellow oval located on the right side of the bag covers a portion of the display window and has large blue numerals. This packaging represents the trade dress for the Dum Dums.

“The combination of colours of the bag; location of the display window; and location, shape and colour of the oval with the numerals creatives a distinctive trade dress that is identified with Dum Dums lollipops,” said the claim.

According to Spangler, its Dum Dums were the only lollipop to have a bag whose primary colour was red before Tootsie infringed the trade dress this year.

“In 2018, Spangler was alerted by a buyer from one of its retail customers that Tootsie had copied Spangler’s trade dress and had begun selling Charms Mini Pops in a bag that closely resembles Spangler’s bag for its Dum Dums lollipops,” the claim said.

According to Spangler, Tootise “copied” the trade dress in question to package its Charms Mini Pops in a way that is “deceptively and confusingly similar” to the Dum Dums bag.

The claim alleged that Tootsie developed a bag that has “several graphic elements” that are similar to the trade dress in question. When used in combination, they allegedly create the same overall visual impression as Spangler’s trade dress.

The elements that allegedly infringe the trade dress include a red bag, white letters and a display window in a similar location.

“When Tootsie’s Charms Mini Pops bags are placed alongside Spangler’s Dum Dums bag, customers are likely to confuse the product and their source of origin,” according to Spangler.

Spangler also alleged that Tootsie’s yellow pallet boxes are infringing its pallet display trade dress and are “deceptively and confusingly similar”.

Tootsie is being sued for trade dress infringement and unfair competition. Spangler is seeking damages and injunctive relief.

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