Promotion in Motion Inc. (“PIM”) makes the popular Welch’s Fruit Snacks under a licensing deal with Welch’s, and Kervan USA LLC is a rival candymaker that has a similar licensing arrangement with Sunkist Growers Inc. PIM, however, contends that Kervan sought to capitalize on the fruits of PIM’s labors, and sued Kervan in the District of New Jersey for trade dress infringement. According to PIM’s complaint, examining the two fruit candies’ branded packaging is a far cry from comparing apples and oranges. Rather, Kervan “embarked on a concerted plan to knock off” PIM’s packaging and picked the low-hanging fruit that was “carefully calculated to siphon off the goodwill PIM has spent years in cultivating,” PIM alleges.

Kervan, refusing to be second banana, fired back. It answered suit, denied the infringement, and opposed PIM’s gambit for a temporary restraining order to halt Kervan’s use of the allegedly-infringing packaging. Whether PIM’s allegations of trade dress infringement are legitimate or merely sour grapes remains to be seen. The parties have been battling over the propriety of a preliminary injunction in this case since its inception this summer, and the court has not yet issued an order on the subject, though it has held multiple status conferences with the parties.

Takeaway: Trade dress infringement suits in a crowded market space can go pear-shaped rapidly. This is especially true where a product is unreleased. You be the judge; would you be confused as to the origin of the two candies based on a side-by-side comparison of their packaging?