Mark Liss, Tammy Miller, Laura Schaefer, Natalie Guio, and Katie Vetter of Leydig successfully defended candy company Haribo in a hotly-contested trade dress appeal at the Third Circuit which was brought by the maker of SOUR JACKS watermelon candy. The plaintiff, PIM Brands, Inc., claimed Haribo infringed its product configuration trade dress registration for candy that had a design shaped and colored like watermelon. Haribo was selling a competitive candy that also looked and tasted like watermelon. Last year, the U.S. District Court of New Jersey agreed with Leydig and granted summary judgment for Haribo, agreeing that the shape and coloring mimicked a real watermelon and thus found the design functional. In another win for Leydig, and in a rather entertaining precedential opinion, the Third Circuit Court of Appeals affirmed the District Court’s decision and noted that common sense may suffice when assessing a design’s usefulness.
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