Original Gummy Fish Not So Original

The Trademark Blog brings word that Malaco, makers of Original Swedish Fish and holders of the associated trademark/trade dress, has lost on summary judgement a trademark suit against Promotions in Motion, marketers of Famous Sqwish Candy Fish (not to mention Nuclear Sqworms) (The Aesthetically Functional Swedish Fish). The opinion, which can be read on Juris Notes (Malaco Leaf, AB v. Promotion in Motion, Inc.), is pretty devastating. This case is a real good example of how not to protect trade dress. For example, you might want to avoid cases where the judge can write lines like this:

Malaco's contention that its Marks are entitled to a finding of acquired distinctiveness is further belied by its own internal marketing reports, including one dated a day before it filed this complaint, reporting that "[m]ost respondents consider 'Swedish Fish' a generic term of fish-shaped gummi candy," and that its Marks enjoy "weak trademark protection."

Anyways, I just like cases that have lots of discussion concerning gummy. While there is not a thigh-slapper in the decision, I find that reading stuff like, "Notably, animal-shaped gummy candy is common in the candy industry" amuses me. Apparently, I amuse easily. Among other highlights, the case also features a discussion of the functionality of gummy designs and the following footnote:

Soft and chewy candy is generally categorized by the industry as either "gummy" if it has a primarily gelatin base, or "juju," if it has primarily a starch base. (Deposition of Frank Galatolie, dated March 20, 2002 ("Galatolie Dep.") at 130-31; Defendants' 56.1 Statement ("Def.'s 56.1 Stmt.") ¶ 3.) For purposes of uniformity, this Court refers to the parties' products as "gummy" candy.

Perhaps Malaco should look for other designs carved by gummy artisans who work exclusivly in the medium of gummy ... too bad that Gummy Mummy is already taken.