Trademark Litigation: What Do Women’s Shoes and Candy Have in Common?

Shoes and candy are the subject of a trademark lawsuit between the manufacturer of Tootsie Roll candy and a small shoe company who sells the “Footzyrolls” brand of shoe. The suit accuses Rollashoe of intentionally preying on Tootsie Roll Industries’ trademark made popular by its lollipops and chewy candies.

Specifically, the candy maker contends that Rollashoe has infringed its trademark and diluted or blurred Tootsie Roll’s brand name.

Footzyrolls “so resembles each of the Tootsie Roll Marks in sound, commercial impression and appearance that when used in association with footwear, it is likely to cause confusion, to cause mistake or deceive,” Tootsie Roll alleged in its complaint.

Because Tootsie Roll also licenses the use of its “Tootsie Roll” trademark for clothing, footwear, and accessories, the company claims that both companies target a similar class of consumers likely to assume the compact shoes are affiliated with Tootsie Roll. The complaint goes so far as to characterize Rollashoe’s branding as “willful, malicious and fraudulent.”

Meanwhile, Rollashoe maintains that Tootsie Roll has no evidence that any customers are confusing Footzyrolls with the candy brand. In addition to Footzyrolls, Rollashoe has applied to register the Footzyfolds trademark for foldable shoes as well as Footzysocks.

“All our products have names associated with Footzy, the next part describes what it is,” said Jenifer Caplan. She said Tootsie Roll has tried to block Rollashoe from registering all Footzy variations in the Patent and Trademark Office. “Whatever we apply for now, Tootsie Roll opposes us,” she said.

It will be interesting to see how this case is resolved. Tootsie Roll may have a hard time establishing the likelihood of confusion element given that candy and shoes appeal to such different markets. Given that Tootsie Roll has held its famous trademark since 1908, it may have better luck with the dilution argument.