Tootsie Sues Footzy: Candy Company Claims Shoe Line Will Confuse Customers

For many years, the slogan for Tootsie Rolls was “The world looks mighty good to me cause Tootsie Rolls are all I see.” It appears that that marketing slogan has become a legal strategy. The candy company is suing Footzyrolls in Chicago for trademark confusion. It is yet another lawsuit in a series that we have discussed. I remain highly critical of the current law that allows effective ownership of generic images or terms, obvious parodies, or in this case, a vague familiar name.

The strongest part of the lawsuit appears to be the claim that Footzyrolls is has caused brand dilution — a clam that can be so maddeningly vague as to threaten a wide range of competitors over packaging and marketing.

Yet, the company can show that Footzy was never a reference to Tootsie. The company began in 2009 as a sock company selling soft, roll-up shoes that could be kept by women in a handbag as relief from wearing high heels.

After creating Footzyrolls, the company created another soft shoe, Footzyfolds, and Footzysocks. Yet, the $521 million insists that the small company will cause confusion for customers who will presumably begin to swallow Footzyrolls and choke to death. Alternatively, they could think that the people who make cheap candy are making shoes — though I am not sure why that would be a plus. Of course, some people do not like Tootsie Rolls and think it tastes like feet, so that might be the source of the confusion.

Footzyrolls became popular after being featured by Oprah.

Once again, I find it astonishing that we have allowed trademark and copyright laws to expand to such an unrecognizable and unproductive extent (here and here and here and here). It is now hindering rather than helping the creative enterprise of a market economy.

I know of only one clear case of product confusion involving Tootsie Roll and that almost killed a group of Marines. During the Battle of Chosin Reservoir in 1950, a Marine mortar unit was running out of rounds and called in for an emergency airdrop of mortar rounds. Just as they used their last rounds, they were overjoyed to see the boxes floating down to their positions. When they opened the boxes, however, they found them filled with Tootsie Rolls. The supply officer did not realize that soldiers called mortar rounds “Tootsie Rolls” and ordered hundreds of crates of candies to be dropped on the Marines.

Source: Chicago Tribune as first seen on ABA Journal.

8 thoughts on “Tootsie Sues Footzy: Candy Company Claims Shoe Line Will Confuse Customers”

  1. Chick-fil-A has gone after a small t-shirt printer who promotes healthy food with his logo, “Eat More Kale.” He has been using that for about ten years, and after a couple of competitors copied his stuff, he decided to trademark it. The chicken fast food behemoth, which apparently has more lawyers than common sense, complain that consumers might mistake his trademark for theirs.

    http://www.burlingtonfreepress.com/article/20111124/BUSINESS08/111240307/-Eat-More-Kale-trademark-flap-more-complex-than-simple-slogan?odyssey=tab|topnews|text|FRONTPAGE

  2. While I’m normally in disagreement with the good professor over his statements on IP, in this case I’m on his side. “Dilution” is an iffy legal concept, in part because no one knows what the hell makes a mark “famous” and in part because it’s not been shown with any certainty that dilution by blurring harms such marks (dilution by tarnishment, by contrast, requires the plaintiff to argue specific potential for harm). Thankfully, parody is still a (partial) defense; see Louis Vuitton v. Haute Diggity Dog.

  3. There are dozens of these types of stories. They aren’t exactly news. Many times the companies are forced to fight such so-called infringements so that they don’t lose standing to fight actual cases of infringement.

    not that it matters but it seems silly to claim that “footzyrolls” was never a play on “tootsie rolls”

  4. Yeah, well if you have eaten a tootsie roll recently you will note the taste is not dissimilar to a sock.

    The worst case of this I remember was a guy whos last name was “Wheatie” he opened a cafe & named it “Wheatie’s”. Apparently General Mills believes eating their breakfast cereal causes brain damage so severe that you would not be able to tell the difference between its boxes of over processed crap from an actual cafe.

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