Big Candy vs. Big Snowman

Jesse Walker | July 16, 2009

Today's deranged intellectual property suit pits the Pez Candy Co. against the Museum of Pez Memorabilia:

The legal broadside, which was filed in San Francisco last month, singles out a 7-foot-10 snowman, built especially for the museum, that has been recognized by the Guinness record keepers as the world's largest Pez dispenser. Pez seeks to have the snowman melted down.

And, says the museum's newly hired lawyer, the company is demanding that the museum's "curators," Gary Doss and wife Nancy Yarbrough Doss, turn over all profits from the Pez shrine's 14 years in business.

More details of the demands are here.

The museum began in 1995 as a computer shop, but in a familiar entrepreneurial experience a sideline became the profit center, as customers grew increasingly interested in the owners' Pez displays. Within a year the dispensers had taken over. When the snowman arrived in 2007, the trademark-sensitive Pezco protested the fact that the toy was dubbed the "world's biggest Pez dispenser." The owners gamely relabeled it the "world's biggest dispenser of Pez," but apparently that wasn't enough.

Comments

kilroy|7.16.09 @ 11:42AM|#

Seriously, Copyright, Trademark and Patent thinking need some serious adjustment. I'd give the Trademark 25 years of validity but after that you need to have innovated and trademarked something else to make your dime.

|7.16.09 @ 11:44AM|#

Wow, Pez Co is stupid. Don't they understand that the museum would be good for their business, not bad for it? The label on the snowman doesn't harm Pez.

hmm|7.16.09 @ 11:45AM|#

I'll see your Pez suing Pez museum and raise you a Wells Fargo sues Wells Fargo

Not the most uncommon thing, but still amusing. Also not an IP suit.

|7.16.09 @ 11:46AM|#

Wow, Pez Co is stupid. Don't they understand that the museum would be good for their business, not bad for it? The label on the snowman doesn't harm Pez

I agree. But I think the real motive is this:

the company is demanding that the museum's "curators," Gary Doss and wife Nancy Yarbrough Doss, turn over all profits from the Pez shrine's 14 years in business.

Free money is what they seem to be seeing.

I mean seriously who buys pez anymore?

creech|7.16.09 @ 11:49AM|#

Does, in fact, the snowman actually dispense Pez? If not, then the advertising is fraudulent. On the other hand, this country has too many damn lawyers with time on their hands. Hey, lawyer, if you've nothing productive to do, then how about doing some pro bono work representing the victims of unwarranted and ridiculous SWAT activities?

|7.16.09 @ 11:59AM|#

"I'll see your Pez suing Pez museum and raise you a Wells Fargo sues Wells Fargo."

Awesome. But opposite ends of the spectrum. The Pez suit is about lawyers with too much time sitting around figuring out how to sue for profits. The Wells Fargo suit is a result of lawyers that are so busy they don't even know they're on both sides of a suit until they file it.

Abdul|7.16.09 @ 12:04PM|#

Maybe they can re-name their business the "museum of inane intellectual property decisions" and keep the giant dispenser as an exhibit.

|7.16.09 @ 12:07PM|#

Yo, fuck IP

<-->|7.16.09 @ 12:13PM|#

Pez Candy Co. is stupid and shortsighted, therefore all property-rights claims are stupid and shortsighted (except when it comes to eminent domain, right fellas?) Got it.

|7.16.09 @ 12:21PM|#

"Pez Candy Co. is stupid and shortsighted, therefore all property-rights claims are stupid and shortsighted (except when it comes to eminent domain, right fellas?) Got it."

Another person fooled by the "stealing/piracy/theft" language used by IP advocates. But hey, throwing people out of their homes is really no different than accurately describing a toy.

|7.16.09 @ 12:22PM|#

Pez Co should just make a larger Pez dispenser. Probably cheaper than lawyers.

|7.16.09 @ 12:46PM|#

"Pez Candy Co. is stupid and shortsighted, therefore all property-rights claims are stupid and shortsighted (except when it comes to eminent domain, right fellas?) Got it."

Rather, Pez Candy Co. is stupid and shortsighted so they are harming themselves by doing something stupid and shortsighted. That's always amusing. Anyway, the vehicle they are using is a legal structure that considers intellectual property the equivalent of physical property. This equivalence is not a given. In fact, the dubious nature of the argument causes a lot of these bizarre conflicts.

Jozef|7.16.09 @ 1:10PM|#

I remember Seth Macfarlane once mentioning that the only thing ever to having been censored out of Family Guy was a scene with a Pez dispensed featuring JFK's blown-off head. I'm now beginning to wonder whether it's been because of poor taste or because of a C&D letter from Pez...

|7.16.09 @ 1:19PM|#

Pez Co should just make a larger Pez dispenser. Probably cheaper than lawyers.

Now, if they could turn one of their lawyers into a giant Pez dispenser, they would really have something they could charge admission for.

The Angry Optimist|7.16.09 @ 1:20PM|#

I am wondering why the "copyright" sign is at the bottom of this page.

phalkor|7.16.09 @ 1:20PM|#

Pez also wrote a C&D letter to ytmnd regarding some maybe-funny pez dispensor gif. The site then sponsored a "get sued by Pez" contest which had the actual funny. It was good gravy.

phalkor|7.16.09 @ 1:21PM|#

©2009 Reason Magazine. All Rights Reserved.

Jeff P|7.16.09 @ 1:30PM|#

This is obviously a monopoly. The gov't should split up the candy-making and dispenser-making divisions.
Also, check their licensing for all the characters they use. If the license has expired for, say, the likeness of Popeye, then the fact that Popeye dispensers still exist in collections should be considered a violation.
And have Jerry Seinfeld and Larry David been sued for their script that revolved around a Pez dispenser? Surely providing a pivotal plot point merits some restitution.

|7.16.09 @ 1:31PM|#

"I am wondering why the "copyright" sign is at the bottom of this page."

I'm wondering why you are on this page.

|7.16.09 @ 1:32PM|#

"©2009 Reason Magazine. All Rights Reserved."

I'm going to go ahead and guess that you don't have the first clue about copyright or trademark law.

|7.16.09 @ 1:43PM|#

Wow, Pez Co is stupid. Don't they understand that the museum would be good for their business, not bad for it? The label on the snowman doesn't harm Pez.

Exactly my thoughts. I have no idea what the proper legal decision should be, but from a business standpoint, this is plain fucking stupid.

|7.16.09 @ 1:55PM|#

"
Exactly my thoughts. I have no idea what the proper legal decision should be, but from a business standpoint, this is plain fucking stupid."

IP trolling is quite common, but usually the big corporation is the target. Pez is probably circling the drain.

|7.16.09 @ 2:08PM|#

Exactly my thoughts. I have no idea what the proper legal decision should be, but from a business standpoint, this is plain fucking stupid.

As a general rule, IP lawyers are plain fucking stupid. All they think about is whether the law gives them a fighting chance at winning an injunction and damages; they rarely consider the bigger question of how that will actually benefit or hurt their client's business interests.

|7.16.09 @ 2:12PM|#

"they rarely consider the bigger question of how that will actually benefit or hurt their client's business interests."

To be fair, the client's are the ones who are supposed to be paying attention to their business interests. Lawyers rarely sue on their own behalf. They get paid by client's who are, rightly or wrongly, making the business decisions.

|7.16.09 @ 2:14PM|#

Seriously, Copyright, Trademark and Patent thinking need some serious adjustment. I'd give the Trademark 25 years of validity but after that you need to have innovated and trademarked something else to make your dime.

Actually, that's a bad idea. Or maybe you think I should be free to whip up some caramel-colored liquid in my kitchen and sell it as "Coca-Cola" out on the street? Or start putting together computers in my basement and selling them with a Hewlett-Packard label on them? Or opening up a store and calling it "Macy's"? While the theories of "dilution" or "likelihood of confusion" may have been abused, that doesn't mean they are without any value.

|7.16.09 @ 2:39PM|#

Seamus - I agree that trademarks should be valid as long as they are exploited, but only as to their source-identifying purpose.

Jesse Walker|7.16.09 @ 2:51PM|#

Fun facts for the people making tu quoque arguments about Reason's copyright notice:

1. This is a trademark case, not a copyright case.

2. It's perfectly possible to think this is an absurd use of IP law without opposing everything that falls under the label IP. I'm not opposed to trademarks, though I have many criticisms of current trademark law (and do not think of the marks as a form of property).

3. Reason's contributors have a variety of opinions about IP, so there's no way the magazine could act in concert with all of them at once.

The Angry Optimist|7.16.09 @ 4:44PM|#

Lamar - why am I here? I'm missing the point, although I am sure you have one, so I'll need something less vague.

kilroy|7.16.09 @ 5:50PM|#

Seamus,

If these guys were selling something that looked similar to a Pez dispenser and functioned like a Pez dispenser and were calling it a Pez dispenser I'd say they were wrong. What they are doing is not analogous to putting brown liquid in a bottle and selling it as Coke.

If you want to collect a million Coke bottles and open a museum and contract to have a 7-foot Coke bottle built out front, I'd say that's permissible within the spirit of the trademark law.

By the way, the shape of the Coke bottle is trademarked.

|7.16.09 @ 5:58PM|#

All they think about is whether the law gives them a fighting chance at winning an injunction and damages; they rarely consider the bigger question of how that will actually benefit or hurt their client's business interests.

Well, that's really the client's call to make, not the lawyer's. Do you really want lawyers to withhold legal advice from clients whenever they think the client might not use it optimally?

|7.16.09 @ 7:13PM|#

Actually, that's a bad idea. Or maybe you think I should be free to whip up some caramel-colored liquid in my kitchen and sell it as "Coca-Cola" out on the street? Or start putting together computers in my basement and selling them with a Hewlett-Packard label on them? Or opening up a store and calling it "Macy's"? While the theories of "dilution" or "likelihood of confusion" may have been abused, that doesn't mean they are without any value.

Simply put, these are blatant examples of fraud. There's no need for specific IP laws to prevent abuses like these.

And it's also important to remember that Coke's most vital "intellectual property" isn't covered under any IP laws at all. Their formula is simply kept secret.

<-->|7.16.09 @ 8:10PM|#

Reason's contributors have a variety of opinions about IP

Silly Reason­© rabbits. When it comes to digital property (off-topic somewhat, but relevant to the discussion) they think that if they cannot see it, it cannot be property. It's their fatal flaw in regards to IP. Not that it isn't entertaining to see them jumping through their hoops of equivocation.

Jesse Walker|7.16.09 @ 8:19PM|#

they think that if they cannot see it, it cannot be property

I cannot think of a single Reason staffer who believes that blind people can't own property.

|7.16.09 @ 11:25PM|#

"Lamar - why am I here? I'm missing the point, although I am sure you have one, so I'll need something less vague."

It was a dick comment, and though I disagree with your argument, I apologize for my ass holeage.

|7.17.09 @ 1:32AM|#

Next up, Pezco sues OJ Simpson and the Goldman family.

|7.17.09 @ 6:04AM|#

candy and snow...
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