Box Vox

packaging as content

January 21, 2013

Candy Stripe Consumer Confusion?

Back in April we did a round-up of candy packaging in which colored stripes were used to communicate: assorted fruit flavors.

In October, the National Archives’ blog, NARAtions, featured documents surrounding a 1947 trademark dispute about the same type of striped candy packaging.

I wasn’t aware of Curtiss Candy’s assorted fruit drops, but Life Savers apparently regarded their use of colored stripes as an infringement on their trademarked wrapper design.

(Note: Just as early black and white television commercials had to rely on shades of grey to represent the colors of multicolor packages, early trademark/patent drawings, like the one above, used patterns to show differences in color.)

Similar to Heinz polling housewives in 1965 to prove that the “keystone design” functioned as a trademark, Life Savers attempted to prove that, in the minds of consumers, multicolor stripes represented the Life Savers brand.

In 1947, Life Savers parent company filed suit claiming Curtiss violated Trade-Mark Reg. 355,158, which is a Life Savers candy wrapper design…

The “Memorandum Opinion” states the main issue with the case.  The style and colors of the packaging were so similar that Life Savers claimed there would be “actual confusion of goods between the products of the plaintiff and defendant.”  Curtiss, however, said its own label was “distinctive and totally different,” and “great pains and much care have been taken to avoid any possible confusion.”

There was an analysis of the wrappers, including the positioning of two blue squares with “Curtiss Assorted Fruit Drops” and three “Life Savers Five Flavors” printed across the entire roll “as to be visible and prominent in whatever position that package may lie….”  However, the court was inundated with witness testimony acknowledging “there has been some actual confusion of goods.”

Depositions of witnesses were taken in different cities to show that consumers were so used to simply reaching for the multi-colored packaging of Life Savers that Curtiss would be able to take advantage of this with its own colored label.  One witness, Lillian Poshkus of St. Louis, when asked about her candy purchase, answered, “I just go right up to the counter and I see the different colored package and I pick that up, put it on the counter and pay for it.”  Several others answered similarly.

… one of Curtiss’s claims, [was] saying the “Defendant has not adopted the registered trademark of Plaintiff nor any ‘colorable imitation’ of any registered mark.”  Further the position of the defendant said the “striped effect produced by the picture or representation of the contents of a package is a functional device equally available…and widely used by manufacturers of candy of this type.

Even in 1948, when the defendant filed its brief, an issue came up that continues to affect the contemporary marketplace.  Curtiss used examples from testimony where some witnesses refer to generic small candy drops as Life Savers.  “Typical of marks of this kind are the marks Frigidaire for the household mechanical refrigerator, Vaseline for petroleum jelly, Kodak for small cameras, Aspirin for the familiar headache remedy, etc.  The term Life Savers itself may have suffered this deterioration because of a developing usage of this word by consumers to mean any small round candies, regardless of the brand.

Curtiss concluded that Life Savers was attempting “to prevent anybody from putting out assorted fruit drops in a multi-colored label.  If successful, Plaintiff will thus insure that all people who want assorted fruit drops will of necessity be compelled to purchase those of the Plaintiff,” and endowing it “with a monopoly of assorted fruit drops.”

U.S. District Court Judge Elwyn Shaw dismissed the complaint, concluding, “I believe that the defendant has taken every reasonable means to prevent confusion of goods, and unless Life Savers Corporation is to be given a patent on all colored and candy mints it must be held that the trade-mark is not infringed.

Excerpts from “Rolling into Court” Katie Dishman, NARAtions, October 2012

 

See also: Brandnomer and Homophonic Consumer Confusion