Pim Brands Inc v. Haribo of America Inc., No. 22-2821 (3d Cir. 2023)
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About 20 years ago, PIM introduced a chewy candy, watermelon-flavored, wedge-shaped Sour Jacks Wedges. Its colors match its flavor: a green layer topped by a thin white band with a larger red section. PIM advertised the candy as “The Ultimate Shape of Sour” and told consumers to “Respect the Wedge.” Years later, PIM tried to trademark the wedge shape. The Patent and Trademark Office required PIM to add colors. PIM registered the shape of a wedge, with an upper green section with white speckles, followed by a narrow middle white section, with a lower red section with white speckles. PIM later produced Sour Jacks Wedges in other flavors. Each has a color to match its flavor. The Patent Office granted PIM a supplemental registration for a tricolored wedge with unspecified colors. Haribo recently introduced its own chewy watermelon candy as an elongated watermelon wedge in red, white, and green.
PIM sued for trademark and trade-dress infringement, Lanham Act, 15 U.S.C. 1114(1), 1125(a)(1)(A). Haribo countered that PIM’s trade dress was functional and asked the court to cancel PIM’s trademark. The district court granted Haribo summary judgment. The Third Circuit affirmed. PIM may have created the wedge shape to distinguish its product in the market but in doing so, it made a candy reminiscent of a juicy watermelon wedge, which makes the whole trade dress functional when applied to a watermelon candy. The cancellation order should apply to the primary registration.
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