17
Oct/03

The Aesthetically Functional Swedish Fish


If you wanted to make a fish-shaped gummy candle, you would likely need to make the back flat, where you pour the liquid into a starch impression.  Also, in order to make it look like a fish you would likely need to use a head, tail, scale pattern and eyes.  So Malaco Leaf, owner of SWEDISH FISH gummy candy, was unable to show protectable trade dress as its fish-shaped candy had an aesthetically functional design.  Also, defendant SQWISH FISH established that there were 69 other fish-shaped gummy candies on the market.

Malaco Leaf , AB v. Promotion in Motion, Case no. 01-7600 (S.D.N.Y. Oct. 1, 2003).

Glenn Mitchell’s book on trade dress here.

Swedish Fish available here.

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