Opinion

NOT FOR PUBLICATION

UNITED STATES DISTRICT COURT

DISTRICT OF NEW JERSEY

:

JUST BORN, INC., : Civil Action No. 26-cv-04606 (SRC)

:

Plaintiff, :

: OPINION & ORDER

v. :

:

MAILLO CONFECTIONS LLC and THE :

SNACKATERE NJ INCORPORATED, :

:

Defendant(s). :

:

CHESLER, District Judge

This matter comes before the Court by way of Plaintiff Just Born, Inc.’s (Plaintiff’s)

Motion for a Preliminary Injunction (the “Motion”), (Dkt. No. 15). Defendants Maillo

Confections LLC and The Snackatere NJ Incorporated (“Defendants”) opposed the motion, (Dkt.

No. 33). Plaintiff filed a brief in reply, (Dkt. No. 38). The Court heard oral argument on August

12, 2026. For the reasons set forth below, the Motion will be DENIED.

I. PROCEDURAL HISTORY

On April 27, 2026, Plaintiff filed a complaint against Defendants alleging infringement of

Plaintiff’s rights on its trademarks and trade dress under Section 32(1) of the Lanham Act, 15

U.S.C. § 1114(1), unfair competition under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a),

dilution of Plaintiff’s rights in its world-famous trademarks and trade dress under the Trademark

Dilution Revision Act, 15 U.S.C. § 1125(c), dilution under N.J.S.A. 56:3-13.20, and unfair

competition under N.J.S.A. 56:4-1 et seq and New Jersey common law. (Dkt. No. 1).

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Plaintiff moved for a preliminary injunction on July 1, 2026. (Dkt. No. 15). Defendants

filed opposition on July 27, 2026. (Dkt. No. 33). Plaintiff filed a reply brief on August 3, 2026.

(Dkt. No. 38).

Through its Motion, Plaintiff seeks to enjoin Defendants from allegedly continuing to

misappropriate Plaintiff’s registered trademarks and established trade dress in manufacturing,

advertising, distributing, marketing, displaying, offering to sell, and selling goods in

configurations that Plaintiff alleges are confusingly similar to its trademarks and trade dress.

II. FACTUAL BACKGROUND

Plaintiff is a Pennsylvania corporation that has manufactured and sold PEEPS

marshmallow candies since 1954. Compl. ¶¶ 18-19. Plaintiff introduced a bunny-shaped

marshmallow (the “PEEPS Bunny”) in 1979 and has continued to sell the product since that time.

Id. Plaintiff owns multiple trademark registrations covering the PEEPS Bunny in connection with

various goods. Id. at ¶ 21.

According to Plaintiff, the PEEPS Bunny consists of a simplified rounded silhouette of a

front-facing bunny with a face formed of three dots and a v-shaped pair of rounded ears centrally

placed on the head, and is used in commerce both as a two-dimensional mark applied to goods or

their packaging and as the configuration of candy and licensed goods to indicate that they originate

from or are licensed and authorized by Plaintiff. Id. at ¶¶ 24-25. In Count IV, Plaintiff also

claims trade dress rights in its packaging which generally consists of marshmallows arranged in

groups of four within a rectangular white paper tray wrapped in pastel-colored plastic packaging

with a repeating bunny-shaped print and a transparent window on the right side or top through

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which clusters of four candies can be seen.1 Id. at ¶ 27.

Plaintiff alleges that the PEEPS Bunny has acquired widespread commercial recognition,

and further alleges that Plaintiff’s PEEPS brand candies are consistently the most popular non-

chocolate Easter candy, and have maintained that position for two decades, with over 150 million

candies in the PEEPS Bunny design sold in each of the past three years. Id. at ¶¶ 28-35.

In May 2025, Defendants announced via its website that they planned on launching a line

of seasonal marshmallows including bunny-shaped marshmallows. Id. at ¶ 51. On July 1, 2025,

Plaintiff sent Defendants a cease and desist letter asserting its trademark rights and objecting to

the launch of the proposed bunny-shaped marshmallows. Id. ¶ 52. Counsel for the respective

parties continued communications through November 2025 regarding Plaintiff’s infringement

concerns. Id. ¶ 53. Plaintiff alleges that it advised Defendants that any product it launches must

be of a significantly modified design that is not confusingly similar to the PEEPS Bunny, and

failure to do so would result in enforcement of Plaintiff’s rights. Id. Plaintiff further alleges that

Defendants ultimately made no substantial changes to design and, in January 2026, began to

manufacture, distribute and sell marshmallows in a bunny shape (the “Mallow Bunny”). Id. ¶¶

53-54. Plaintiff alleges that the products are sold online through Amazon and in retail stores,

including Albertson, Wegmans, Price Chopper, ShopRite, independent health food stores, and

other retail grocery and food stores. Id. ¶ 55.

Plaintiff further alleges that Defendants packaged the Mallow Bunnies in rectangular white

1 The Court notes that while the Complaint alleges that Defendants’ packaging infringes its trade dress, its motion for

a preliminary injunction appears to rely solely on its contention that Defendants’ product design in a bunny-shaped

formulation infringes its trade dress. Count IV, the packaging claim, is not asserted as the basis for any injunctive

relief.

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paper trays wrapped in pastel-colored packaging with a transparent window displaying four

marshmallows, and that multipack versions of the product feature a repeating bunny pattern that

is similar to the packing of the PEEPS Bunny. Id. ¶¶ 59-61. Plaintiff also alleges that at least

some of the Mallow Bunnies were distributed with three-dot facial features that are similar to those

appearing on the PEEPS Bunny. Id. ¶ 62.

Finally, Plaintiff contends that the Mallow Bunnies closely resemble the PEEPS Bunnies

because both products feature a simplified rounded silhouette of a front-facing bunny with a v-

shaped pair of rounded ears centrally placed on the head, are formed of white marshmallow coated

with pastel-colored granulated sugar, and are of the same size and the same weight. Id. ¶ 67.

Plaintiff argues that there are various similarities in the two products, namely that they have

substantially similar visual impression, they are the same size and weight, have a similar heft and

feel in the hand, and have similar colors. Id. ¶¶ 68-71.

Based on these alleged similarities, Plaintiff brought the instant motion seeking to enjoin

Defendants from allegedly continuing to misappropriate its trademarks. Plaintiff filed the instant

motion on July 1, 2026. (Dkt. No. 15). (“Pl.’s Br.”). Defendants filed opposition on July 27,

2026. (Dkt. No. 33) (“Defs.’ Opp.”). Plaintiff filed a reply brief on August 3, 2026. (Dkt. No.

38) (“Pl.’s Rep. Br.”).

III. LEGAL STANDARD

To obtain a preliminary injunction, the moving party bears the burden of establishing that

(1) it is likely to succeed on the merits, (2) it is likely to suffer irreparable harm in the absence of

preliminary relief, (3) the balance of equities tips in its favor, and (4) the public interest favors

such relief. Ferring Pharms., Inc. v. Watson Pharms., Inc., 765 F.3d 205, 210 (3d Cir. 2014).

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Preliminary injunctive relief is an “extraordinary remedy, which should be granted only in limited

circumstances.” Id. That burden is heavy: the movant must make a “clear showing” that it is

entitled to injunctive relief. Holland v. Rosen, 895 F.3d 272, 285-86 (3d Cir. 2018). The

movant’s failure to establish any element in its favor is fatal and “renders a preliminary injunction

inappropriate.” NutraSweet Co. v. Vit-Mar Enters., Inc., 176 F.3d 151, 153 (3d Cir. 1999).

IV. DISCUSSION

The first prong of the test for preliminary injunctions requires Plaintiff to show that it is

likely to prevail at the ultimate trial on the merits. To succeed on a trademark claim, “a plaintiff

must establish (1) the marks are valid and legally protectable; (2) the marks are owned by the

plaintiff; and (3) the defendant's use of the marks to identify goods or services is likely to create

confusion concerning the origin of the goods or services.” Opticians Ass'n of Am. v. Indep.

Opticians of Am., 920 F.2d 187, 192 (3d Cir. 1990). “If the mark at issue is federally registered

and has become incontestible, then validity, legal protectability, and ownership are proved.”

Com. Nat. Ins. Servs., Inc. v. Com. Ins. Agency, Inc., 214 F.3d 432, 438 (3d Cir. 2000).

Here, Plaintiff owns several federally registered marks, including Registration No.

4,627,913 (the “‘913 Registration”) for the two-dimensional version of the PEEPS bunny design,

which consists of a simplified rounded silhouette of a front-facing bunny with a face formed of

three dots and a v-shaped pair of rounded ears centrally placed on the head, and Registration No.

3,809,165 (the “‘165 Registration”) for a three-dimensional configuration of candy in the form

of a bunny, consisting of a simplified rounded silhouette of a front-facing bunny with a face formed

of three dots and a v-shaped pair of rounded ears centrally placed on the head (the “Bunny

Design”). Compl. ¶¶ 95-97, 111-113. Defendants do not dispute Plaintiff’s ownership of the

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asserted Registrations. Rather, Defendants principally argue that Plaintiff’s Bunny Design is not

entitled to trademark protection because it constitutes an unprotectable product configuration.

Defs.’ Opp. at 11-13, 17. Further, Defendants argue that, even if the Bunny Design is valid and

protectable, Defendants’ use of the Bunny Design is not likely to cause confusion, thus Plaintiff is

unlikely to succeed on the merits. Id. at 17-26.

Functional features in a product cannot be protected as trade dress or a trademark. 15

U.S.C. § 1115(b). “The functionality doctrine prevents trademark law, which seeks to promote

competition by protecting a firm's reputation, from instead inhibiting legitimate competition by

allowing a producer to control a useful product feature.” Qualitex Co. v. Jacobson Prods. Co.,

514 U.S. 159, 164 (1995). “[I]n general terms, a product feature is functional, and cannot serve

as a trademark, if it is essential to the use or purpose of the article or if it affects the cost or quality

of the article.” Sweet St. Desserts, Inc. v. Chudleigh’s Ltd., 655 F. App’x 103, 109 (3d Cir. 2016)

(citing TrafFix Devices, Inc. v. Mktg. Displays, Inc., 532 U.S. 23, 24 (2001)).

The Court need not decide whether Defendants are likely to succeed on their functionality

defense at this preliminary stage. The parties’ dispute concerning functionality raises factual

questions that are more appropriately addressed after discovery; as the record remains

undeveloped, this issue is not ripe for discussion. Instead, the Court proceeds to the issue of

likelihood of confusion.

In determining whether such confusion is likely, the Court considers the ten nonexclusive

factors set forth in Interpace Corp. v. Lapp, Inc., 721 F.2d 460 (3d Cir. 1983), as refined by Versa

Products Co. v. Bifold Co., 50 F.3d 189 (3d Cir. 1995). The Lapp factors used to determine

whether there is a likelihood of confusion between marks are the: (1) degree of similarity between

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owner’s mark and alleged infringing mark; (2) strength of owner’s mark; (3) price of goods and

other factors indicative of care and attention expected of consumers when making a purchase; (4)

length of time defendant has used mark without evidence of actual confusion arising; (5) intent of

defendant in adopting the mark; (6) evidence of actual confusion; (7) whether goods, competing

or not competing, are marketed through same channels of trade and advertised through same

media; (8) extent to which targets of parties’ sales efforts are the same; (9) relationship of goods

in minds of consumers, whether because of near-identity of products, similarity of function, or

other factors; and (10) other facts suggesting that consuming public might expect prior owner to

manufacture both products, or expect prior owner to manufacture a product in defendant's market,

or expect that prior owner is likely to expand into defendant’s market. Lapp, 721 F.2d at 463.

The Court need not mechanically apply each of the Lapp factors, as the weight and relevance of

each factor depends on the particular circumstances of the case. See Fisons Horticulture, Inc. v.

Vigoro Indus., Inc., 30 F.3d 466, 476 (3d Cir. 1994) (holding “the weight given to each factor in

the overall picture, as well as its weighing for plaintiff or defendant, must be done on an individual

fact-specific basis. Not all of the factors are present in every case.”).

As to the degree of similarity between the owner’s mark and the alleged infringing mark,

the Court is satisfied that the overall impression created by Plaintiff’s product design and

Defendants’ product design and configuration are similar: a simplified rounded silhouette of a

front-facing bunny and a v-shaped pair of rounded ears centrally placed on the head. Compl. ¶

24.

This, however, does not dispose of the matter where the alleged infringement relates to

product design. In such cases, the similarity in design can be negated by appropriate labelling,

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packaging and advertising. Here, Plaintiff’s contention that the products are confusingly similar

is substantially negated by the fact that Defendants’ brand name is so prominently displayed on

the packaging. Plaintiff cannot establish that consumers would mistake Defendants’ clearly

displayed Good Mallow confectionaries for Plaintiff’s PEEPS products as Defendants’ products

are clearly distinguishable with large labels and a distinct font. This “clarity of labeling in

packaging and advertising will suffice to preclude almost all possibility of consumer confusion as

to source stemming from the product’s configuration.” Versa, 50 F.3d at 203; see also Bose Corp.

v. Linear Design Labs, Inc., 467 F.2d 304, 309 (2d Cir. 1972) (finding that “[t]he presence of name

on the product goes far to eliminate confusion of origin.”); Id. at 310 (also finding that “there is

hardly likelihood of confusion or palming off when the name of the manufacturer is clearly

displayed.”). Indeed, the advertising for Defendants’ products clearly and boldly identifies Good

Mallow as the source of the products, and negates any substantial likelihood of confusion as to the

source of the same. Thus, this factor weighs strongly in favor of Defendants.

As to the strength of the owner’s mark, although Plaintiff argues that its Bunny Design is

commercially strong, the record supporting that contention is considerably less persuasive than

Plaintiff suggests. Although Plaintiff identifies extensive advertising, substantial sales,

widespread licensing, and the overall popularity of the PEEPS brand generally, those facts

demonstrate the commercial success of the PEEPS brand as a whole. Plaintiff fails to adequately

present facts that demonstrate the commercial strength of the Bunny Design, the specific mark at

dispute. Plaintiff has indicated what portion of its retail sales of PEEPS marshmallows from the

2022 to 2026 Easter seasons were sales attributed to marshmallows in the Bunny Design, but the

remaining information provided by Plaintiff lumps together advertising, licensing, broadcast

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mentions, and overall numbers in revenue that can be attributed to the PEEPS brand generally.

Domalewski Cert. ¶¶ 7-13, 17-22, 29. Absent from Plaintiff’s submissions is evidence isolating

the Bunny Design from the PEEPS brand generally. Thus, while the Court does not question the

commercial success of Plaintiff’s products broadly, the present record fails to provide sufficient

evidence to support the commercial strength of the Bunny Design as an independent source

identifier. The strength of a mark rests on the extent to which “a significant portion of the relevant

consuming public . . . recognizes the mark as a source indicator.” Joseph Phelps Vineyards, LLC

v. Fairmont Holdings, LLC, 857 F.3d 1323, 122 USPQ2d 1733, 1734 (Fed. Cir. 2017) (citing Palm

Bay Imps. v. Veuve Clicquot Ponsardin Maison Fondee En 1772, 396 F.3d 1369, 73 USPQ2d

1689, 1694 (Fed. Cir. 2005)). Further, Plaintiff’s contentions about the commercial strength of

its product are substantially weakened by the fact that there are various similar products in the

marketplace that meet Plaintiff’s description of its Bunny Design, specifically a “simplified

rounded silhouette of a front-facing bunny,” with “v-shaped pair of rounded ears centrally placed

on the head.” See Compl. at ¶ 67. Indeed, the rabbit-shaped marshmallow sold by Sweetniks

appears to be extraordinarily similar to Plaintiff’s Bunny Design. Defs.’ Opp.; Ex. C.

Nevertheless, as defense counsel indicated at oral argument, there has been no suggestion that

Plaintiff has sought to curtail the marketing efforts of other brands selling similar products. This

demonstrates that the mark is not as strong as Plaintiff contends, and this factor does not weigh

significantly in favor of Plaintiff.

The third and seventh factors weigh in favor of Plaintiff. Both parties’ products are

relatively inexpensive, low-cost confectionary items, suggesting that consumers are unlikely to

exercise a high degree of care when purchasing the product. Defendants also market their product

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through many of the same online and physical retail stores as Plaintiff. Defs.’ Opp. at 24. The

Court recognizes, however, that Defendants highlights the fact that their product is kosher and

vegan and that, indeed, it is a healthy product, whereas Plaintiff explicitly indicates that its product

is not kosher or vegan. For consumers specifically seeking products that satisfy those dietary

restrictions, those distinctions may raise greater attention to differentiating between the products.

Nevertheless, given the relatively low price of the products, the Court finds that consumers are

generally unlikely to exercise a heightened degree of care. Accordingly, this factor weighs in

Plaintiff’s favor, albeit somewhat less strongly in light of the dietary distinctions between the

PEEPS Bunny and the Mallow Bunny.

As to evidence of actual confusion and the length of time that Defendant has used the marks

without evidence of actual confusion, Plaintiff’s showing is weak. Plaintiff’s evidence of actual

confusion is severely limited, consisting of a single incident involving celebrity Paris Hilton.

Although evidence of actual confusion is not required to establish a likelihood of confusion, the

relevance of such evidence is significant where the central issue is whether consumers are likely

to perceive Defendants’ products as originating with Plaintiff. Plaintiff has been aware of

Defendants’ intent to market and sell its product since July 2025, and the product has been

available for purchase since April of 2026. In that time, Plaintiff has not demonstrated more than

one instance of actual consumer confusion, nor has Plaintiff presented survey evidence

demonstrating the same. Thus, the Court finds that the single incident identified by Plaintiff does

not provide a meaningful showing of actual confusion. On the present record, the fourth and sixth

factors weigh in favor of Defendants.

As to the intent of Defendants in adopting the mark, this factor weighs in favor of

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Defendants. Even if Defendants intended to copy aspects of Plaintiff’s product configuration, an

intent to copy is not equivalent to an intent to confuse consumers as to the source of the product.

Versa, 50 F.3d at 206. Indeed, “where product configurations are concerned, we believe there is

little room for deterrence if appropriate labeling and marketing are undertaken.” Id. at 207. It is

not unfair competition for someone to trade off the good will of a product. See Kellogg Co. v.

National Biscuit Co., 305 U.S. 111, 121 (1938); it is only unfair to deceive consumers as to the

origin of one's goods and thereby trade off the good will of a prior producer. See also Duraco

Products, Inc. v. Joy Plastic Enterprises, Ltd., 40 F.3d 1431, 1445 (3d Cir. 1994). Thus, the Court

finds that this factor weighs in favor of Defendants.

Considering the Lapp factors as a whole, the Court concludes that Plaintiff has not

demonstrated a likelihood of confusion. Although certain factors favor Plaintiff, those

considerations are outweighed by the limited evidence regarding the commercial strength of the

Bunny Design itself, Defendants’ clear and obvious branding, and the absence of a meaningful

presentation of actual confusion or survey evidence. Given the fact that Plaintiff had more than

ample opportunity to conduct a survey and failed to do so, the absence of such evidence

substantially affects the analysis of likelihood of confusion. Indeed, Plaintiff’s “failure to conduct

any confusion survey weighs against its request for a preliminary injunction.” Pharmacia Corp.

v. Alcon Lab’ys, Inc., 201 F. Supp. 2d 335, 373 (D.N.J. 2002); see also Eagle Snacks, Inc. v.

Nabisco Brands, Inc., 625 F. Supp. 571, 583 (D.N.J. 1985) (“Failure of a trademark owner to run

a survey to support its claims of brand significance and/or likelihood of confusion, where it has

the financial means of doing so, may give rise to the inference that the contents of the survey would

be unfavorable, and may result in the court denying relief.”) On the present record, Plaintiff has

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not shown that consumers are likely to believe that Defendants' Mallow Bunny originates with

Plaintiff. In sum, Plaintiff has not demonstrated a likelihood of success on the issue of consumer

confusion. Here, as in Versa, the “clarity of labeling in packaging and advertising will suffice to

preclude almost all possibility of consumer confusion as to source stemming from the product's

configuration.” Versa, 50 F.3d at 203. This, coupled with minimal evidence of actual confusion,

and the lack of any consumer survey evidence supporting likelihood of confusion, satisfies the

Court that Plaintiff has not demonstrated a likelihood of success on the issue of consumer

confusion.

Similarly, with regards to Plaintiff’s trade dilution claims, Plaintiff also fails to establish a

likelihood of success. To succeed on a dilution claim, Plaintiff must prove (1) that it owns a mark

that qualifies as a “famous” mark in light of the totality of the eight factors listed in § 1125(c)(1);

(2) that Defendants are making commercial use in interstate commerce of that mark; (3)

Defendants’ use began after Plaintiff’s mark became famous, and; (4) Defendants’ use causes

dilution by lessening the capacity of the plaintiff's mark to identify and distinguish goods or

services. Times Mirror Mags., Inc. v. Las Vegas Sports News, L.L.C., 212 F.3d 157, 163 (3d Cir.

2000). A mark is only famous when it is “widely recognized by the general consuming public of

the United States as a designation of source of the goods or services of the mark’s owner.” Vista

India v. Raaga, LLC, 501 F. Supp. 2d 605, 623 (D.N.J. 2007) (citing Green v. Fornario, 486 F.3d

100, 105 (3d Cir.2007)). “This is a rigorous standard, as it extends protection only to highly

distinctive marks that are well-known throughout the country.” Id.

As Defendants correctly point out, the vast majority of the evidence cited by Plaintiff in

support of its argument that the Bunny Design is famous merely regards PEEPS brand candies

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generally, not products specifically incorporating the Bunny Design. For instance, Plaintiff refers

to a study that found the PEEPS brand candy was the most popular Easter candy. Pl.’s Mot. at 3-

4 (citing Domalewski Decl. ¶ 12). However, even if true, that study is not specific to candies

incorporating the Bunny Design. Again, Plaintiff cannot rely on the alleged fame of its PEEPS

house mark but, rather, must prove fame of the Bunny Design. Further, Plaintiff largely

emphasizes the fame of the Bunny Design within a limited market: Easter candy. However, the

standard of whether a mark is famous considers whether the mark is “well-known throughout the

country by the general consuming public, regardless of the relevant consuming public.” Vista,

501 F. Supp. 2d at 623. Plaintiff’s attempts to use the sums it has spent on advertising, marketing,

and promotions of the PEEPS brand as a whole and the popularity of the Bunny Design within the

Easter candy market are insufficient to prove that it is famous. The Court finds that Plaintiff has

failed to convincingly demonstrate a likelihood of success on its trademark dilution claim.

Thus, because Plaintiff has failed to demonstrate that Defendants’ products are likely to

create confusion as to their source of origin, the Court finds that Plaintiff has not met its burden of

demonstrating its likelihood of success on the merits. Because Plaintiff has failed to meet the first

prong of its motion seeking injunctive relief, and failure to meet any prong of the test is fatal to

the movant’s challenge, the Court need not consider the remainder of the test for a preliminary

injunction. NutraSweet Co., 176 F.3d at 153. Accordingly, Plaintiff’s Motion is DENIED.

V. CONCLUSION

For the reasons set forth above, Plaintiff’s Motion for a Preliminary Injunction is DENIED.

* * *

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For these reasons,

IT IS on this 27th day of August, 2026

ORDERED that Plaintiff’s Motion for a Preliminary Injunction is DENIED.

/s/ Stanley R. Chesler

STANLEY R. CHESLER, U.S.D.J.

Dated: August 27, 2026

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