Dippin' Dots, Inc. v. Frosty Bites Distribution, LLC

369 F.3d 1197 (11th Cir. 2004)

Purchase the Printed Copy at bsmsphd.com

Nature of the Case

To access this section all you need to do is click here and register.

Facts

P markets and sells a brightly-colored flash-frozen ice cream product, called 'dippin' dots,' consisting of free-flowing small spheres or beads. P received Patent No. 5,126,156 for the method P uses to make dippin' dots. P sells products from colorful kiosks or stands at amusement parks, sporting venues, and shopping malls. It has a distinctive logo made up of an oval of blue, yellow, and pink spheres surrounding the product name, 'dippin' dots,' in blue letters. Below this oval of spheres is a tag line touting dippin' dots as the 'Ice Cream of the Future.' D sells 'frosty bites,' consisting of mostly small popcorn-shaped ice cream bites. D has a distinctive logo consisting of an ice-like background upon which the words 'Frosty Bites' are written in blue letters shadowed in pink. The 'o' in the word 'Frosty' is the torso of a cartoon caricature of a portly penguin holding a cup of yellow, green, blue, and red nuggets of ice cream. Below the words is a tag line touting frosty bites as 'The Ultimate Ice Cream Sensation!'. Several of DDI's retail dealers secretly started D while still under contract with P to sell dippin' dots at various locations. Eight of these dealers terminated their contracts with P. The following day, without changing locations, they began selling their frosty bites under the 'Frosty Bites' logo. P sued Ds alleging trade dress infringement. Ds moved for summary judgment. The court held that P's product design is functional and was not subject to trade dress protection, and the logos are so dissimilar that, as a matter of law, P could not prove any likelihood of consumer confusion as to the source of the products.