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Does 'Footzyrolls' Infringe on 'Tootsie Roll'?

By Stephanie Rabiner, Esq. on December 01, 2011 12:06 PM

Would you be inclined to confuse Footzyrolls with Tootsie Rolls?

For the uninitiated, Footzyrolls are shoes that roll into small bundles so they can easily be stored in a woman's purse. Produced by Rollashoe, a sister-owned small business, the shoes are part of a line that includes Footzysocks and Footzyfolds.

In a bid to protect its brand, Tootsie Roll has filed suit against Rollashoe's Footzyrolls. The company alleges that the names are so similar that the shoes are likely to cause consumer confusion and dilute the Tootsie Roll trademark.

Even if you think this is a frivolous suit (a shoemaker and a candymaker?), such lawsuits are not at all uncommon. In fact, Chick-fil-A, which owns the trademark to the phrase "eat mor chikin," has recently taken action against an artist who urges people to "eat more kale."

Though assertions of consumer confusion may be a bit unfounded, Tootsie Roll and Chik-fil-A still have a chance of prevailing in court. It's called trademark dilution.

Holders of famous trademarks can argue that a similar mark dilutes their mark's uniqueness. If others use a similar mark to sell a product--regardless of product relatedness--consumers are less likely to associate the famous mark with the proper product.

Unfortunately for small businesses, a number of courts have found that the two marks don't have to be substantially similar to win a claim. This increases the risk of lawsuit exponentially.

So before you employ a slogan, logo, company or product name, you're going to have to consider that risk. Are you willing to fight your own Footzyroll battle? Or should you just choose something else?

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