It looks like a watermelon, tastes like a watermelon, must be a…

Last week, the Third Circuit, on appeal from the District of New Jersey, ruled against PIM Brands, Inc., the confectioner creator of Sour Jacks Wedges. After a decade on the market, PIM had trademarked the green, white and red wedge shape of its original watermelon flavored version of its sour candies. Enter Haribo, the venerable confectioner of gummy bears and an array of other gelatinous delights. Haribo recently released its own watermelon candies shaped like an elongated slice of the fruit. Taking umbrage at this, PIM sued Haribo for trademark and trade dress infringement. Haribo’s arguments won the day at court. Essentially, the folks at Haribo successfully argued that the watermelon-like shapes and colors purportedly trademarked by PIM were actually functional––serving to identify to the consumer that the candy tasted like watermelon, rather than signaling the brand itself. This functionality is anathema to a protectable trade-dress. Although PIM argued that its line of other identical wedge-shaped candies in different color schemes made the wedge itself (irrespective of color) a signifier of the brand, the Court of Appeals held that the court has to consider the shape along with the color-scheme when examining the trade dress at issue….stating “[T]he wedge comes to us dressed in red, white, and green, and that wedge looks like a watermelon.” Since trade dress, a subset of trademark which protects distinctive design choices that make up the overall look of a product, (think the distinctive shape of the old-timey glass Coca-Cola bottles), cannot be functional, the Court ruled that PIM could not use its trade dress registration to shut down Haribo’s candy, and affirmed the lower court’s decision to cancel the trademark.