An interesting case has recently been filed in the United States District Court for the Northern District of Illinois regarding the advertisement of e-cigarette liquids in flavors that seem to be directed to children under the age of 18. Here, Wm. Wrigley Jr. Company (“Wrigley”) has filed a lawsuit against Chi-Town Vapers LLC (“Chi-Town”) due to Chi-Town’s use of certain trademarks and trade dress owned by Wrigley.
Wrigley is the producer of certain candy products, including gum and mints, and has marketed its products to consumers under certain names, including DOUBLEMINT and JUICY FRUIT. Wrigley owns several federal trademark registrations under each name for use in connection with confectionery products and certain other classes of goods. The instant lawsuit stems from Chi-Town’s sale of e-cigarette liquids under the names “Double Mint” and “Joosy Fruit”. Chi-Town has marketed its product in a way that resembles a chewing gum container. Specifically, for the “Double Mint” flavor, Chi-Town uses the same green box and double arrow design that is used in connection with DOUBLEMINT gum. For the “Joosy Fruit” flavor, Chi-Town uses the same yellow box and double arrow design that is used in connection with JUICY FRUIT gum.
Wrigley’s lawsuit first claims that Chi-Town has committed federal trademark infringement and federal trademark dilution because the acts of copying the color scheme and double arrow design are likely to cause confusion among consumers and dilute the distinctive nature of its marks. Second, Wrigley claims that Chi-Town has violated federal and common law unfair competition laws by Chi-Town’s willful acts to copy Wrigley’s trademarks and trade dress. Lastly, Wrigley claims that Chi-Town has violated the Illinois Uniform Unfair Deceptive Trade Practices Act by misleading the public as to the source or origin of its products by copying Wrigley’s trade dress.
What is most interesting is the fact that Wrigley directly references the Food and Drug Administration’s concern over the advertising of e-cigarettes in its complaint. The result of this lawsuit will be telling for the development of future advertising standards when a company shows a concerted effort to market its adult products at children using names associated with “kid-friendly” items. While it may be a marketing strategy to draw upon the nostalgia of adults in marketing products, the court may determine that there is a line that cannot be crossed.