The Topps Company, Inc. v. Koko's Confectionery & Novelty, Inc.

Background

Topps alleged that Koko’s Squeezy Squirt Prop candy product infringed U.S. Patent No. 6,660,316 and the trade dress of Topps’s Juicy Drop Pop product. The patent describes a candy product with separate chambers for a hard candy and a compressible bottle containing flavored liquid. Topps asserted direct and indirect patent infringement under 35 U.S.C. § 271(a)-(b), as well as trade-dress infringement under Section 43(a) of the Lanham Act.

The parties filed cross-motions for summary judgment. The court had previously interpreted disputed language in Claim 1 of the patent. It interpreted “a housing defining an upper chamber and a lower chamber” to mean a housing with two compartments, one above the other. It interpreted “a candy holder ... including a handle at its lower end” to mean a structure with a handle at its bottom that holds a piece of candy.

Patent Infringement

Summary judgment is appropriate when no genuine dispute about an important fact exists and the moving party is entitled to judgment under the law. In a patent case, the court first interprets the patent claim and then compares the interpreted claim with the accused product.

For literal infringement, every limitation in the claim must be present in the accused product. The court held that Squeezy Squirt Prop did not meet two limitations of Claim 1. First, when standing upright on its base, its two compartments were side by side rather than one above the other. The court rejected Topps’s argument that the product could satisfy the “upper” and “lower” requirements in another orientation because the earlier claim-interpretation ruling made the compartments’ positions significant.

Second, the handle on Squeezy Squirt Prop’s candy holder was at the top rather than the bottom. The court therefore granted Koko’s summary judgment on literal infringement. The court also concluded that Claim 2, which depended on Claim 1, was not infringed for the same reasons.

The court separately rejected infringement under the doctrine of equivalents. That doctrine can treat a product as infringing even when it does not literally meet a claim limitation if it performs substantially the same function in substantially the same way to achieve substantially the same result. The court found that Topps’s expert opinions disregarded the patent’s required directional features. In the court’s view, treating side-by-side compartments as equivalent to an upper and lower chamber, or a top-positioned handle as equivalent to a bottom-positioned handle, would eliminate those limitations from the claim. Koko’s was therefore entitled to summary judgment on infringement under the doctrine of equivalents as well.

Trade Dress

Trade dress is the overall visual appearance of a product, including features such as its size, shape, color, texture, and graphics. The court held that no reasonable jury could find the Juicy Drop Pop and Squeezy Squirt Prop designs confusingly similar. It identified several differences, including the locations of the nozzle and candy handle, the presence of a colored plastic “geyser” on Squeezy Squirt Prop, the different sizes and shapes of the nozzle cap and handle, and the different shapes and designs of the compressible bottles.

The court also held that the colors Topps identified could not be an actionable part of the trade dress because they served a functional purpose by indicating flavors.

Other Motion and Disposition

Koko’s separately asked the court to strike Topps’s summary-judgment motion as untimely and procedurally improper. The court denied that request because the rule Koko’s cited permits striking pleadings, while motions, declarations, and affidavits are not pleadings.

Judge George B. Daniels granted Koko’s motion for summary judgment, denied Topps’s motion for summary judgment, and directed the Clerk of Court to close the motions.