Last week Jelly Belly Candy Company filed a non-traditional trademark application with the USPTO to federally register the shape of its Jelly Belly candies. The claimed mark is drawn like this:
And, described like this: “The mark consists of a candy having a rounded squat kidney-like shape, with one longer side being a continuous arc and the opposite side have a slight depression or dimple in its arc, the center diameter and height of the candy being approximately half its length.”
The application claims use since July 15, 1976, and asserts acquired distinctiveness based on “substantially exclusive and continuous use of the mark in commerce that the U.S. Congress may lawfully regulate for at least the five years immediately before the date of this statement.”
As robust as the Jelly Belly trademark portfolio is shown to be on the USPTO database, the application referenced above surprisingly doesn’t claim prior existing registrations owned by Jelly Belly that appear to reinforce the distinctiveness of the shape. Can you say, look for?
The most obvious ones involve the Jelly Belly logo registrations depicting the candy shape in two dimensions. But, what I was really surprised to find is that Jelly Belly has already run around the non-traditional trademark track a few times with other configuration trademark registrations that reinforce the shape of the Jelly Belly candy on packaging and several other non-candy food products (burger and sandwich buns; meat patties; and pizza):
To the extent the USPTO wants more evidence of acquired distinctiveness than a mere five year substantially exclusive use claim, those little gems ought to help.
Any predictions on how sweet the Jelly Belly configuration trademark application will turn out to be for candy? Stay tuned, the application should be examined in about 3-4 months.