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July 15, 2009 5:09 PM

Dispense This: Alston, Fenwick Fight Over Pez Museum

Posted by Brian Baxter

Pez, the tiny, rectangular candies made popular by their pocket-sized mechanical dispensers, is fed up with the Burlingame Museum of Pez Memorabilia.

In an 18-page complaint filed in U.S. district court in San Jose on June 22, Pez Candy, the U.S. subsidiary of Switzerland-based Patrafico AG, filed a trademark infringement suit against the unofficial Pez museum and its candied curators.

Snowman2

According to San Jose Mercury News, which had some fun discovering the candy case in this Tuesday story, Pez accuses the museum of infringing on its trademark by displaying a 7-foot-10 snowman (pictured right) it proclaims the "world's largest Pez."

Pez also alleges the museum sold a modified dispenser bearing President Barack Obama's image with the message, "OBAMA '08 for Pezident," despite the fact that the company and its parent, Patrafico, never engage in political endorsements.

The museum's lawyer, Fenwick & West IP and technology litigation cochair Rodger Cole in Mountain View, Calif., says Pez is targeting a small "off the beaten path" destination for tourists. The museum opened in 1995 and contains every one of the 550 Pez dispensers made by the candy company, including the Mr. Potato Head Pez, which actually sold for $8,000 apiece back in 2004.

"From our perspective, the museum enhances the brand image of Pez, embraces the Pez fan community, and promotes Pez," says Cole, who is defending the museum along with IP litigation partner Jennifer Kelly. "Frankly, I'm surprised that Pez wouldn't want to embrace and support the museum to try and use it to increase its marketing."

Pez is asking for the museum's profits and seeking the destruction of memmorabila that it says infringes on Pez trademarks. The museum has not been served with the suit, so the defendants have yet to respond to the complaint, Cole says.

Alston & Bird IP partners Alan Behr and Jonathan Gordon and associates Larry Johnson and Mitra Eskandari-Azari are representing Pez. Behr, who once served as the chief legal officer of Atari, another cult classic brand, told The Am Law Daily that he needed to confer with client before commenting.

Pez, whose status as a pop culture icon was revived in the 1990s partly because of a seminal Seinfeld episode, derives its name from an abbreviation of the German word for "peppermint."

Photo: Burlingame Museum of Pez Memorabilia

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Gary Doss wouldn't hurt anyone. I've known him about 10 years having met on the set of "To Tell The Truth" at NBC in Burbank. I played one of the Impostors in the game and in my response to a panel question (as coached by Gary), I stated that the PEZ museum was NOT affiliated with the PEZ Candy Company and that's what went on the air. Gary's Museum reflects absolutely the iconoclastic and kitschy nature that made PEZ a Pop Art Monument.

To my knowledge he has never discussed in public the quality of the CANDY they manufacture and that is a great quality of mercy in and of itself. If PEZ had to sell the product based on that, they would have been out of business years ago. Why PEZ Incorporated chooses this particular time to sponsor a Pfefferminz "Book Burning" after so much publicity has re-generated public interest in the market even in the face of this rudimentary candy product with barely a palpable taste, is beyond me. To my knowledge PEZ Inc. has NEVER indulged in any sort of media publicity about their product and Gary Doss has practically GIVEN AWAY Millions of Dollars of PEZ advertising revenue and publicity.

I have purchased products (including some of the 'fantasy' dispensers) from Gary for years, and have also purchased directly from Pez, Inc. As a collector of the dispensers for many, many years, I know the difference. From the perspective of a consumer, isn't that what matters?

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