Friday, February 20, 2009

POP ROCKS sues ROCK'N'POP for trademark infringement

The owner of POP ROCKS carbonated popping candy (or “gasified candy”) filed suit against the makers of a popping candy sold under the name ROCK'N'POP.

Zeta Espacial S.A. (“Zeta”), a corporation based in Spain, is the company which currently owns numerous federal trademark registrations for the mark POP ROCKS. On February 19, 2009, Zeta filed a trademark infringement lawsuit in the U.S. District Court for the Northern District of Illinois against Imaginings 3, Inc. (“Imaginings”), an Illinois corporation doing business as Flix Candy. A copy of the complaint can be downloaded here.

According to the complaint, Imaginings makes its own popping candy which it sells under the name ROCK'N'POP both through wholesale distributors as well as on its website [Note: the only image of any ROCK'N'POP popping candy I could find was the below picture of ROCK'N'POP lollipop and popping candy dip featuring Hannah Montana].

Zeta maintains that Imaginings use of ROCK'N'POP in connection with its popping candy is likely to cause consumer confusion with and dilution of Zeta’s POP ROCKS Marks. Zeta’s causes of action are trademark infringement under 15 U.S.C. § 1114; unfair competition under 15 U.S.C. § 1125(a)(1); federal trademark dilution under 15 U.S.C. § 1125(c); deceptive trade practices under Illinois state law (815 ILCS 510/2); trademark dilution under Illinois state law (756 ILCS 1036/65); and common law trademark infringement and unfair competition.

Vegas™Esq. Comments:
Seems like another example of a case where at first, it would seem apparent that there is no likelihood of confusion given the aural and visual differences between the marks and their different commercial impression. However, once you start applying the likelihood of confusion factors, a different picture emerges that favors Zeta more than one might initially think – strong mark (Zeta will have strong sales and advertising figures and the mark is famous, but there could be some possible room to argue genericness or that the mark has become weak), similarity between the marks, similar goods, similar marketing channels, and inexpensive nature of the goods (low degree of consumer care). While I still think Imaginings has the advantage if it ever went to a jury, does Imaginings really want to get embroiled in an expensive fight over the name?

Of course, no posting about POP ROCKS would be complete without some reference to the famed urban legends surrounding the dangers of eating the candy and then drinking cola. In the internet age, you can even watch the urban legend be tested – ranging from the serious (Mythbusters) to the ridiculous (here).

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