As a kid, I loved candy. But as an adult, who happens to be an intellectual property attorney, I still love candy. So you can bet your sweet tooth that I was feeling a sugar rush when I came across a pending application to register the claimed mark shown below:

Ice cream ring

The application was filed by Dulces Chompys, a Mexican candy manufacturer. Dulces Chompys describes the mark as “a candy portion in the configuration of an ice cream cone on a stylized ring” and has applied to register the mark in connection with “candy, marshmallows, bubble gum, chewing gum, chocolate, chocolate bars, chocolate candies, chocolate confections, honey, cocoa, sugar, gum sweets, confectionery made of sugar, mint-based sweets, lollipops.”

Unfortunately for Dulces, an Office Action has put the company in a sticky situation. The Examining Attorney provided a shopping list of refusals, including functionality under 2(e)(5), failure to function as a mark, and inconsistent goods (in the sense that the Examining Attorney is concerned that this product configuration could not be used as a configuration for honey, cocoa, or sugar).

Oh, also a likelihood of confusion refusal based another candy option you may have seen before:

Ring Pop Drawing

If you guessed Ring Pop, you’ve earned a look at a more delicious display of the most fashionable candy around:

Ring Pop Bag

The Topps Trading Company (yes, the baseball card company) applied to register the product configuration for its Ring Pop candy as a trademark in 1992, and the Certificate of Registration issued on July 26, 1994. Like Dulces Chompys, Topps also received a refusal on the ground that the mark was functional. However, Topps was able to overcome it.

Even if Dulces Chompys can convince the Trademark Office that its ice cream shaped lollipop ring is non-functional, will it still be stuck with an insurmountable likelihood of confusion refusal?  If so, it is hard to imagine what type of lollipop ring design would be able to avoid a likelihood of confusion with Topps’ product configuration.  The registration might effectively provide Topps with a monopoly on all shapes of lollipop rings. Of course, functionality is one of the grounds that can always be relied upon to cancel a registration, so we’ll have to wait and see whether Dulces is willing to take on a king-sized dispute.