Tootsie Roll Industries LLC filed a complaint in the Northern District of Illinois last week claiming that Lafayette Bay Products LLC, which does business as Spunky Pup, breached its Tootsie Roll and Tootsie Pops registered trademarks by selling Tootsie Pup. The plaintiff alleged that the name is “confusingly similar” and that the product copies Tootsie Roll’s trade dress.
The plaintiff said that Spunky Pup began selling the product at some point during 2020. Tootsie filed the lawsuit “to halt and prevent consumer confusion, mistake, and deception as to source, affiliation, or sponsorship of Spunky Pup’s dog treat product caused by Spunky Pup’s infringement of Tootsie’s trademark rights.” Tootsie asked the court for injunctive relief and monetary damages.
Allegations in the complaint accused Spunky Pup of deliberately using Tootsie’s trade dress to benefit from the goodwill that Tootsie has created with consumers. The plaintiff explained that it obtained the first trademark for Tootsie in 1909 and has used various Tootsie-based trademarks continuously since that time. It claimed exclusive rights to using the Tootsie trademark in commerce and said that it has become valuable through over a hundred years of advertising, use, and promotion of the trademarks.
Tootsie specified that its trademarks and trade dress include the “cylindrical-shaped brown candy with a length approximately two times its diameter,” brown red and white packaging, and use of the Copper Black font. The company claimed its trade dress “is inherently distinctive,” and indicates to consumers that the product is manufactured by Tootsie.
Although the allegedly infringing product uses blue instead of red in the stripes on the ends of the box, Tootsie claimed that Spunky Pup breaches the plaintiffs’ trade dress because the prominent wording is in the same font and the same position on the packaging, and there are bright stripes on the edges of the box. The Tootsie Pups are also similar to Tootsie Rolls, both in shape and color.
Tootsie alleged that it never gave Spunky Pup permission to use its trade dress, and that it sent a letter demanding that sales of Tootsie Pups stop in February but that the defendant declined. The plaintiff alleged that if sales continue it will sustain damages and claimed that the defendants’ infringement is intentional.
The complaint included counts of trademark infringement, unfair competition, dilution by blurring, deceptive trade practices, and consumer fraud and cites various Illinois and United States laws.
Tootsie is represented by Wolf Greenfield & Sacks P.C. and Steptoe & Johnson LLP.
