Intellectual Property Law

Tootsie Roll Sues Footzyroll, Claims Likelihood of Confusion Between Candy Bar and Soft Shoe Brand

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At first glance, a soft, roll-up slipper might not seem likely to be confused with a famous candy bar brand.

But the Footzyrolls made by Rollashoes not only free-ride on the more than 100-year-old Tootsie Roll Industries name but might well be thought to be an affiliated product, contends a federal lawsuit filed in Chicago. Tootsie Roll, in fact, makes socks as well as candy, Reuters reports.

The suit, which was filed last week, is more likely to succeed in its claim of brand dilution than likelihood of confusion, since the product and packaging are different, says trademark lawyer David Donahue of Fross Zelnick Lehrman & Zissu. He is not involved in the litigation.

However, Jennifer Caplan, one of the two women who founded the Footzy line in 2009, says the term was not intended to confuse but is simply descriptive of the soft, roll-up shoes that women can carry in a handbag for instant relief from high heels.

“All our products have names associated with Footzy, the next part describes what it is,” she explains to Reuters. In addition to Footzyrolls, the pair also sell another type of soft shoe, Footzyfolds, and Footzysocks.

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