Case 2:19-cv-14183 Document 1 Filed 06/24/19 Page 1 of 12 PageID: 1

David R. King
dking@herrick.com
Leah Kelman
lkelman@herrick.com
HERRICK FEINSTEIN LLP
One Gateway Center
Newark, New Jersey 07102
(973) 274-2000

Richard S. Mandel (to be admitted pro hac vice)

Jonathan Z. King (to be admitted pro hac vice)
COWAN, LIEBOWITZ & LATMAN, P.C.
114 West 47th Street
New York, NY 10036
(212) 790-9200

Attorneys for Plaintiffs

Promotion In Motion, Inc.

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

------------------------------------------------------------x

PROMOTION IN MOTION, INC.,

19-CV-
Plaintiff,
COMPLAINT
v.

HARIBO OF AMERICA, INC.

Defendant.

-----------------------------------------------------------x

Plaintiff Promotion In Motion, Inc. (“PIM”), by and through its undersigned attorneys, as

and for its Complaint in this action against Haribo of America, Inc. (“Haribo”), having an

address at 9500 West Bryn Mawr Avenue, Suite 700, Rosemont, IL 60018, alleges as follows:
 Case 2:19-cv-14183 Document 1 Filed 06/24/19 Page 2 of 12 PageID: 2

NATURE OF THE ACTION

1. Plaintiff brings this action for trademark and trade dress infringement, false

designation of origin, and unfair competition under the Lanham Act, 15 U.S.C. § 1051 et seq.,

and corresponding state law, to halt Haribo’s infringement of PIM’s registered trade dress in its

popular and successful SOUR JACKS product.

PARTIES

2. PIM is a Delaware corporation with a principal place of business at 25 Commerce

Drive, Allendale, New Jersey 07401.

3. Upon information and belief, Defendant Haribo is a Delaware corporation with a

principal place of business at 9500 West Bryn Mawr Avenue, Suite 700, Rosemont, IL 60018.

Upon information and belief, Haribo is in the business of manufacturing and importing various

candy products for sale in the United States.

JURISDICTION AND VENUE

4. This Court has jurisdiction over the claims pursuant to 15 U.S.C. § 1121 and 28

U.S.C §§ 1331 and 1338, and pursuant to principles of supplemental jurisdiction.

5. This Court has personal jurisdiction over Haribo because, upon information and

belief, it is doing business in New Jersey and has committed tortious acts within New Jersey by

selling the infringing products from which this dispute arises in this jurisdiction.

6. Venue is proper in this judicial district pursuant to 28 U.S.C. §1391(b) and (c).

FACTS

PIM’s SOUR JACKS Wedge Product

7. PIM is in the business of developing, manufacturing, marketing, and distributing

branded confectionery, snack and candy products.

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8. In developing its own proprietary candy brands, PIM expends great effort in

creating appealing and distinctive recipes, formulas, product attributes, shapes, graphics, brand

names and packaging to distinguish its products in the marketplace.

9. One of PIM’s longstanding and successful brands is its SOUR JACKS candies,

soft-and-chewy sour candies that have proven extremely popular among children and teenagers.

SOUR JACKS was originally introduced in the early 1990s in the shape of a little boy, and this

version is still sold as SOUR JACKS Original.

10. Beginning in 2003, PIM introduced an extension of the SOUR JACKS brand

using a different formulation, boasting a different taste, and featuring a distinctive and highly

recognizable three-dimensional trapezoid shape, referred to as “The Wedge,” rendered in a

green/white/red color combination. An image of the product is shown below:

(the “SOUR JACKS Wedge Product”).

11. In introducing this new version of SOUR JACKS, PIM designed the unusual

three-dimensional trapezoid shape and three-color combination pictured above to distinguish the

product in the marketplace. This design is characterized by five flat surfaces and edges angling

vertically upward. Among the five flat surfaces are a flat rectangular bottom, triangular right and

left sides, and trapezoidal front and back planes. The overall appearance is of a trapezoid

rendered in three dimensions. A thin white band of color divides the red top from the flat green

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base of the piece. This design and color combination is referred to hereinafter as “PIM’s Trade

Dress.”

12. PIM has used PIM’s Trade Dress in connection with the SOUR JACKS Wedge

Product since 2003. After introduction of the original watermelon flavor, PIM extended the line

in 2015 by introducing lemonade, wildberry and green apple versions configured in the same

distinctive shape, but with the colors adjusted for each different version.

13. PIM’s Trade Dress is not functional. It does not replicate the actual shape of a

particular fruit, serves no utilitarian function or other purpose affecting the cost or quality of the

product, and provides no manufacturing or practical advantage in producing or packaging the

product.

14. PIM uses PIM’s Trade Dress not only as the configuration and design of the

product itself, but also prominently features it on product packaging in order to distinguish the

brand in the marketplace and identify PIM as its source. Examples of some retail packages of

the SOUR JACKS Wedge Product as depicted on the www.sourjacks.com website appear below:

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As reflected in the above example, both the packaging and associated marketing imagery for the

SOUR JACKS Wedge Product displays PIM’s Trade Dress to cement its association with the

brand in the minds of consumers. Other flavors of PIM’s SOUR JACKS Wedge Product

similarly display the signature shape of the product on packaging, as illustrated below:

15. PIM aggressively advertises and promotes PIM’s Trade Dress when it markets its

SOUR JACKS Wedge Product. PIM has spent millions of dollars advertising the SOUR JACKS

Wedge Product through various media, including online, point of sale materials such as in-store

displays, trade advertising, free standing inserts and in-theater concession advertising. PIM also

promotes the product via the dedicated website noted above at www.sourjacks.com, and on

social media platforms, including Twitter, Facebook and Instagram.

16. PIM’s advertising for the SOUR JACKS Wedge Product expressly calls attention

to PIM’s Trade Dress and its signature shape as an indication of source throughout PIM’s

promotions, advertisements and communications to the public. For example, PIM repeatedly

uses the federally registered slogan “RESPECT THE WEDGE” on packaging, websites and in

promotions, as illustrated below:

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17. PIM also ran a “LIVIN’ ON THE WEDGE” sweepstakes, and has used that

phrase in advertising and promoting the product, again to call attention to PIM’s Trade Dress as

a key source identifier for the product, as illustrated below.

18. As another example, the www.sourjacks.com website urges consumers to look for

the shape of the product when it encourages them to “CHECK OUT THE ULTIMATE SHAPE

OF SOUR!” This repeated graphic and promotional emphasis on the wedge shape ensures that

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the public understands that PIM’s Trade Dress identifies PIM and PIM alone as the source of

these popular products.

19. PIM’s SOUR JACKS Wedge Product is also sold in bulk form to distributors who

then either repackage the products under private label store brands or sell them to a wide variety

of outlets, such as candy and nut shops, candy kiosks, ice cream shops, fudge shops, grocery

stores, movie theaters, theme parks and bulk candy stores as found at shopping malls and tourist

and leisure attractions, all of which then offer the products for sale in bulk form. In these

contexts, consumers use PIM’s Trade Dress to identify the product.

20. PIM’s SOUR JACKS Wedge Product has been a great commercial success,

generating millions of dollars in sales annually. PIM has sold approximately $30 million worth

of the product at wholesale. The product has become extremely popular with children and

teenagers, and sales are growing every year.

21. The SOUR JACKS Wedge Product is available in multiple trade channels that

expose the product to consumers nationwide, including large chain stores (such as Walmart and

Target), drug store chains (CVS, Rite-Aid, Walgreen’s), supermarkets (Kroger, Safeway, Shop-

Rite), theater concessions, candy stores, and online merchants ranging from Amazon to specialty

retailers.

22. As a result of the commercial success and years of promotion of PIM’s SOUR

JACKS Wedge Product, PIM’s Trade Dress has become well known to consumers and the trade

and has developed significant goodwill for PIM as the source of the product.

23. PIM’s Trade Dress has acquired secondary meaning among the relevant class of

consumers and the trade and thus serves as a distinctive source identifier.

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24. PIM owns a valid and subsisting federal registration (Reg. No. 5,029,701) for

PIM’s Trade Dress (the “PIM Registration”). The PIM Registration identifies the mark as one

that “consists of the shape of a wedge for candy, with an upper green section with white

speckles, followed by a narrow middle white section and followed by a lower red section with

white speckles,” as pictured below:

Haribo’s Infringing Conduct

25. At the recent Sweets & Snacks trade show in May 2019, PIM just learned that

Defendant Haribo is introducing a knock-off gummy candy product that copies the distinctive

trapezoid configuration and three-color scheme constituting PIM’s Trade Dress and protected by

the PIM Registration. An image of the Haribo product as announced in the press appears below:

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As displayed in the package’s window, the shape and color combination of the Haribo product

closely imitates the trapezoidal shape and three-color combination of PIM’s Trade Dress.

26. Haribo’s use of a product shape and color combination that is so closely similar to

that used for the genuine SOUR JACKS creates a strong likelihood that consumers will think

Haribo’s product emanates from the same source as the genuine SOUR JACKS products

manufactured by PIM. Indeed, that likelihood of confusion is further enhanced by the fact that

the Haribo package uses the same shade of pink background color as the package for PIM’s

watermelon SOUR JACKS Wedge Product.

27. Upon information and belief, Haribo was aware of PIM’s Trade Dress before it

adopted its confusingly similar sour watermelon product.

28. Upon information and belief, Haribo’s infringing product is being marketed and

sold to the same class of candy consumers to whom PIM’s SOUR JACKS Wedge Product is

promoted and sold, and is being sold in the same channels of trade and through the same retail

outlets as PIM’s SOUR JACKS Wedge Product.

29. The young consumers for PIM’s SOUR JACKS Wedge Product and Haribo’s

infringing product, both of which are low-cost impulse purchases, are particularly vulnerable to

confusion between the sources of the two products.

30. Haribo’s infringing product is likely to cause confusion, mistake and deception

among consumers as to the source and origin of such goods, and is likely to deceive the public

into believing that Haribo’s goods originate from, are associated with or are authorized or

licensed by PIM or the producer of SOUR JACKS, or that Haribo’s goods are from the same

source as PIM’s, all to the damage and detriment of PIM’s goodwill and sales.

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31. Upon information and belief, by virtue of its unlawful conduct, Haribo has made

or will make substantial profits and gains to which it is not in law or equity entitled.

32. As a result of Haribo’s actions, PIM has been damaged in an amount to be

determined at trial.

33. Haribo’s unlawful activities result in irreparable harm and injury to PIM, and PIM

has no adequate remedy at law.

34. PIM has demanded that Haribo immediately cease any further distribution of the

infringing product, but upon information and belief, Haribo continues to sell the product and will

not cease such sales unless enjoined.

FIRST CLAIM FOR RELIEF

(Violation of Section 32(1) of the Lanham Act)

35. PIM repeats and reincorporates the allegations contained in Paragraphs 1 through

34 above as if fully set forth herein.

36. Haribo’s sale of its infringing watermelon candy as described above infringes the

PIM Registration and thus constitutes infringement of a registered trademark in violation of

section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1).

SECOND CLAIM FOR RELIEF

(Violation of Section 43(a) of the Lanham Act)

37. PIM repeats and reincorporates the allegations contained in Paragraphs 1 through

36 above with the same force and effect as if set forth herein.

38. Haribo’s sale of its infringing watermelon candy as described above infringes

PIM’s Trade Dress and thus constitutes trade dress infringement, false designations of origin,

and unfair competition in violation of section 43(a) of the Lanham Act, 15 U.S.C.

§1125(a)(1)(A).

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THIRD CLAIM FOR RELIEF

(Common Law Unfair Competition)

39. PIM repeats and reincorporates the allegations contained in Paragraphs 1-38

above with the same force and effect as if set forth herein.

40. Haribo’s sale of its infringing watermelon candy as described above infringes

PIM’s Trade Dress and constitutes unfair competition in violation of the common law of the

State of New Jersey.

WHEREFORE, Plaintiff demands judgment against Haribo as follows:

1. Haribo, its officers, agents, servants, employees, representatives, parents,

subsidiaries, affiliates, divisions, successors and assigns and all those persons or entities in active

concert or participation with any of them who receive actual notice of the injunctive order, be

preliminarily and permanently enjoined from:

A. Infringing PIM’s Trade Dress, including, without limitation, by selling

candies in a confusingly similar shape and/or color combination to that protected by the PIM

Registration; and

B. Committing any other act calculated or likely to cause the public to

believe that Haribo or its goods are in any way connected, affiliated or associated with PIM or its

goods, or from otherwise competing unfairly with PIM.

2. Pursuant to 15 U.S.C. § 1118, that Haribo deliver up for destruction all material

(including, without limitation, all packaging, catalogs, advertisements, promotional materials,

brochures, signs, displays and/or stationary), within its possession, custody or control, either

directly or indirectly, that bears a package design, shape or configuration or color combination

confusingly similar to PIM’s Trade Dress and/or the PIM Registration.

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3. Pursuant to 15 U.S.C. § 1116(a), that Haribo be directed to file with the Court and

serve upon PIM, within thirty (30) days after entry of final judgment, a report in writing and

under oath setting forth in detail the manner and form by which it has complied with the

provisions set forth in paragraphs 1 and 2 above;

4. Pursuant to 15 U.S.C. § 1117(a), that Haribo be directed to account to Plaintiff for

all gains, profits and advantages derived from its wrongful acts and to pay Plaintiff all damages

sustained as a result of Haribo’s unlawful conduct;

5. Pursuant to 15 U.S.C. § 1117(a), that Plaintiff recover from Haribo the greater of

three times the amount of Haribo’s profits or any damages sustained by Plaintiffs, together with

interest on such amount and the costs of this action;

6. Pursuant to 15 U.S.C. § 1117(a), that Plaintiff recover from Haribo attorneys’ fees

and costs in this action; and

7. That Plaintiff have such other and further relief as the Court deems just, equitable

and proper.

Dated: Newark, New Jersey Respectfully submitted,

June 24, 2019
HERRICK FEINSTEIN LLP

By: s/David R. King

David R. King
Leah Kelman
One Gateway Center
Newark, New Jersey 07102
(973) 274-2000

COWAN, LIEBOWITZ & LATMAN, P.C.

Richard S. Mandel (to be admitted pro hac vice)
Jonathan Z. King (to be admitted pro hac vice)
114 West 47th Street
New York, NY 10036
(212) 790-9200

12
HF 12825219v.1 06/24/2019
 Case 2:19-cv-14183 Document 1-1 Filed 06/24/19 Page 1 of 2 PageID: 13
JS 44 (Rev. 06/17) CIVIL COVER SHEET
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)

I. (a) PLAINTIFFS DEFENDANTS

PROMOTION IN MOTION, INC. HARIBO OF AMERICA, INC.

(b) County of Residence of First Listed Plaintiff Bergen County, NJ County of Residence of First Listed Defendant Cook County, IL
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
David R. King, Esq.
Herrick, Feinstein LLP, One Gateway Center, Newark, NJ 07102
Tel. (973) 274-2000
II. BASIS OF JURISDICTION (Place an “X” in One Box Only) III. CITIZENSHIP OF PRINCIPAL PARTIES (Place an “X” in One Box for Plaintiff
(For Diversity Cases Only) and One Box for Defendant)
" 1 U.S. Government " 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State " 1 " 1 Incorporated or Principal Place " 4 " 4
of Business In This State

" 2 U.S. Government " 4 Diversity Citizen of Another State " 2 " 2 Incorporated and Principal Place " 5 " 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a " 3 " 3 Foreign Nation " 6 " 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
" 110 Insurance PERSONAL INJURY PERSONAL INJURY " 625 Drug Related Seizure " 422 Appeal 28 USC 158 " 375 False Claims Act
" 120 Marine " 310 Airplane " 365 Personal Injury - of Property 21 USC 881 " 423 Withdrawal " 376 Qui Tam (31 USC
" 130 Miller Act " 315 Airplane Product Product Liability " 690 Other 28 USC 157 3729(a))
" 140 Negotiable Instrument Liability " 367 Health Care/ " 400 State Reapportionment
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& Enforcement of Judgment Slander Personal Injury " 820 Copyrights " 430 Banks and Banking
" 151 Medicare Act " 330 Federal Employers’ Product Liability " 830 Patent " 450 Commerce
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Student Loans " 340 Marine Injury Product New Drug Application " 470 Racketeer Influenced and
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of Veteran’s Benefits " 350 Motor Vehicle " 370 Other Fraud " 710 Fair Labor Standards " 861 HIA (1395ff) " 490 Cable/Sat TV
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Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
Lanham Act, 15 U.S.C. § 1051 et seq.
VI. CAUSE OF ACTION Brief description of cause:
Plaintiff brings this action for trademark infringement.
VII. REQUESTED IN " CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: " Yes " No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
06/24/2019 s/ David R. King
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

 Case 2:19-cv-14183 Document 1-1 Filed 06/24/19 Page 2 of 2 PageID: 14
JS 44 Reverse (Rev. 06/17)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and
then the official, giving both name and title.
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time of filing. In U.S. plaintiff cases, enter the name of the county in which the first listed defendant resides at the time of filing. (NOTE: In land
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in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
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VIII. Related Cases. This section of the JS 44 is used to reference related pending cases, if any. If there are related pending cases, insert the docket
numbers and the corresponding judge names for such cases.

Date and Attorney Signature. Date and sign the civil cover sheet.
 Case 2:19-cv-14183 Document 1-2 Filed 06/24/19 Page 1 of 1 PageID: 15
Document Electronically Filed

David R. King, Esq.

dking@herrick.com
Leah Kelman, Esq.
lkelman@herrick.com
HERRICK, FEINSTEIN LLP
One Gateway Center
Newark, New Jersey 07102
Telephone: (973) 274-2000
Facsimile: (973) 274-2500

Attorneys for Plaintiff

Promotion In Motion, Inc.

UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF NEW JERSEY

PROMOTION IN MOTION, INC.,

Civil Action No. 19-cv-
Plaintiff,

v. RULE 11.2
DISCLOSURE STATEMENT
HARIBO OF AMERICA, INC.

Defendant.

Plaintiff, through its undersigned counsel, Herrick, Feinstein LLP, hereby certifies that

the matter in controversy is not the subject of any other action.

Dated: June 24, 2019 HERRICK, FEINSTEIN LLP

By: /s/ David R. King

David R. King
dking@herrick.com
One Gateway Center
Newark, New Jersey 07102
Telephone: (973) 274-2000
Facsimile: (973) 274-2500

Attorneys for Plaintiff

Promotion In Motion, Inc.

HF 12824965v.1