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Topps Co. Inc. v. Cadbury

5/20/2008 N.Y.L.J. 28, (col. 1), May 20, 2008 Plaintiff appeals from the judgment of the United States District Court for the Southern District of New York (Haight, J.), entered November 8, 2006, dismissing claims for breach of contract and misappropriation of trade secrets. Reversed and remanded. RICHARD J. CARDAMONE, C.J.: Plaintiff appeals from a grant of summary judgment in favor of defendant in litigation between two multinational corporations. This litigation concerns chewing gum, principally 'Bazooka' bubble gum, known in this country by its small -- less than an inch -- paper-wrapped package and accompanying comic strip. Chewing gum is a pastime engaged in since ancient times when the substance chewed was a resin taken directly from certain trees. Nowadays people generally chew the industrially-produced version. They do so for a variety of reasons, including: to cleanse teeth and freshen breath; to focus the mind during athletic competitions; to calm the stomach; and to take the place of smoking. One's inability to chew gum while simultaneously carrying out other routine activities, such as walking, is sometimes used as an epithet. And, of course, because gum is today a sugary confection it is sweet and chewing gum is enjoyable and fun. Such a widely enjoyed product is a big seller in the marketplace and a dispute over the manufacture and distribution of 'Bazooka' bubble gum and another brand in parts of South America is what precipitated the instant litigation. On this appeal we review a grant of summary judgment to defendant, which had been licensed for many years by plaintiff to make and sell these products. In reaching its decision the United States District Court for the Southern District of New York (Haight, J.) relied heavily on an analysis of trademark rights and the sale of goodwill that led it into a complex and evolving area of the law. We believe it erred here as well as in other aspects of its reasoning. Yet, it is not our purpose in this opinion to plant new guideposts into the trademark terrain. We write, rather, simply to explain why this case was not ripe for summary judgment.

Full post as published by The Trade Secrets Vault on May 29, 2008 (boomark / email).