Non-EDVA Opinion of the Month: Candy Sticks and the 2nd Circuit

Vandeventer Black LLP

Intellectual Property law—be it patent, trademark, or trade dress—can sometimes center a huge financial dispute on a remarkably simple issue.  The Third Circuit reinforced that idea with its recent decision in Ezaki Glico Kabushiki Kaisha v. Lotte International America Corp.

At issue was whether the Defendant could keep selling “thin, stick-shaped cookies. . . partly coated with chocolate.”  The candy you may know as a pocky stick.  In a colorful, 17-page opinion, Judge Bibas of the Third Circuit boils the case down to its central element:  is the fact that part of the pocky stick is left uncovered by chocolate a functional decision or is an arbitrary design choice worthy of trade dress protection?  Since the pocky stick’s shape is useful, and it is convenient to have somewhere to hold onto the candy without getting chocolate all over your hands, functionality wins the day.  Now you too can make imitation pocky sticks without fear of a trade dress lawsuit.  As for me, I’ll stick with M&Ms–their candy coating protects my hands just fine.


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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