Here’s a lawsuit that’ll leave a taste in your mouth one way or another. The Wm.Wrigley Jr. Company has filed a trademark infringement lawsuit against Chi-Town Vapers LLC for using two of their chewing gum brands to market flavored e-cigarette liquids.
Wrigley’s trademarked Juicy Fruit and Doublemint gum have very distinctive packaging. In trademark law, this is known as “trade dress” – since it signifies the source of the product to any consumers. In 2014, Wrigley noticed that Chi-Town was using both Juicy Fruit and Doublemint as flavors listed on their website (in addition to other trademarked terms such as Mountain Dew, Red Bull, Kahlua, and Nutella flavors.) Wrigley wrote to Chi-Town demanding that they remove these products from their stores, and Chi-Town obliged for a time. However, the flavors were added back over the following years, this time listed as “Double Mint” and “Joosy Fruit.” These flavors bear extremely similar packaging to Wrigley’s brands.
In the complaint, Wrigley expressed concern that any candy and fruit flavored e-liquids harmfully target young children. The gum manufacturer asked for a permanent injunction on all sales of these flavors. They’re also looking to obtain all profits from the sale of the flavors, as well as monetary and statutory damages.
Growing up, my parents deprived me of bubble gum (which should be a crime); but we always had Doublemint and Juicy Fruit around the house. While I doubt I’d ever have mistakenly ingested these e-liquids instead of chewing gum, it definitely seems clear from the packaging that Chi-Town is attempting to play off of Wrigley’s fame to sell these flavors. Chi-Town’s best defense is probably nominative fair use – but this defense only really works if there’s no way to describe a product without using the trademarked term. Chi-Town could easily have named their flavors something much more generic such as “fruit” or “peppermint” without trying to ride Wrigley’s consumer goodwill through the name and appearance of their flavors. This honestly seems like such a textbook case of trademark infringement that I don’t think Chi-Town has any chance of winning – but we’ll see in the coming weeks whether they’re going to try to fight the suit.
Author and M/L intern, Robert Daniell, is a rising 3L at Case Western Reserve University School of Law. Robert primarily studies intellectual property and entertainment law, focusing on video game and esports law.