Battle of the Lollipops: Dum Dums Takes Aim at Tootsie

TOLEDO, Ohio (CN) – What’s in the color of a lollipop bag? Quite a lot, according to the maker of Dum Dums.

Spangler Candy Company sued Tootsie Rolls Industries on Friday in Toledo, Ohio, federal court, alleging the Chicago-based company is selling Charms branded pops in the same distinctive red packaging as its rival Spangler’s Dum Dums.

Represented by David Wicklund of Toledo law firm Shumaker Loop, Spangler asserts claims for trade dress infringement and unfair competition. Unlike trademark infringement, trade dress is a legal term that relates to the look or packaging of a product.

Bryan, Ohio-based Spangler says Tootsie previously packaged its Charms Mini Pops in a yellow bag that was easily distinguishable from Dum Dums bags.

But earlier this year, Spangler claims a consumer tipped it off that Tootsie had copied the distinct red design of its Dum Dums hard candy and was selling the newly designed bag at Costco, Amazon and other stores.

“When Tootsie’s Charms Mini Pop bags are placed alongside Spangler’s Dum Dums bag, customers are likely to confuse the products and their source of origin,” the 12-page lawsuit states.

To add insult to injury, Spangler claims Tootsie uses the same yellow pallet boxes to stack the bags of candy at the end of each aisle, causing further confusion to consumers.

This exhibit attached to Spangler Candy Company’s lawsuit against Tootsie Roll Industries shows two designs for Charms Mini Pops bags compared to Spangler’s Dum Dums packaging.

“Tootsie’s adoption of its new trade dress for its pallet displays for Charms Mini Pops, and its direct and unfair competition against Spangler, will necessarily and permanently alter the market and irreparably harm Spangler,” the complaint states.

Spangler has been in business since 1906 and entered the market for lollipops in 1953 when it acquired the Akron Candy Company. By that time, Dum Dums had been on the market for almost 30 years. The company makes 12 million Dum Dums every day.

Tootsie Roll Industries’ predecessor, The Sweets Company of America, was founded in Chicago by Leo Hirshfield and has been in business for 120 years. Hirshfield named the famous chewy, oblong, chocolate flavored Tootsie Roll after his daughter Clara, who was nicknamed “Tootsie.” The company reported net product sales of $516 million in 2017.

Neither Spangler nor Tootsie immediately responded to requests for comment Monday.

The lawsuit follows several other candy-related legal filings. Last year, Nestle lost it fight against Cadbury in the United Kingdom after it tried unsuccessfully to trademark the shape of the four-fingered chocolate bar with a wafer center. Nestle has taken the fight to the European Court of Justice.

Gummy bears maker Haribo went to court to try to stop Swiss chocolatier Lindt from selling chocolate golden foil-wrapped teddy bears, but failed after a federal court in Germany cleared Lindt’s product of trademark infringement.

Hershey’s has been fiercely protective of its products and has taken action in the ever-expanding legal marijuana industry, sending cease-and-desist letters to companies it claims are infringing on its candy trademarks.

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