Sometimes, in the candy business, the pungent smell of success comes down to a trademark.
Werok LLC, a New City company, has sued Leaf Brands for defamation and libel, claiming that the California candymaker falsely accused it of trademark infringement.
Werok’s lawsuit does not identify the trademark at issue, but Ellia Kassoff, Leaf Brands CEO, was not silent. The trademark is for Farts Candy.
Leaf Brands sells the chewy, fruity and sour flavored treats, and licenses the Farts brand to other candymakers.
“You can go on Amazon and see Trump Farts and Reindeer Farts,” he said in a telephone interview from his office in Newport Coast. “We sell packaged Farts and bulk Farts in candy stores. We also sell it as a topping for ice cream.”
Leaf Brands also sells Hydrox cookies, Bonkers! fruit chews, Astro Pop and other brands. But Farts Candy are a really big part of its success.
Werok, he said, was selling Minions Farts, based on the mischievous yellow creatures in the 2015 computer-animated comedy film, on Amazon.
“So we notified Amazon,” Kassoff said. “We never gave them permission, so Amazon took it down.”
Werok says it makes more than $10 million a year selling products on Amazon.
The company “unequivocally denies any such infringement,” according to the complaint attested to by Easton King, a company member, and contends that Leaf Brands did not truthfully portray its business to Amazon.
By complaining to Amazon, according to the lawsuit, Leaf was accusing Werok of “behavior incompatible with the proper conduct of its business.”
Leaf’s statements “constituted extreme and outrageous conduct beyond the bounds of decency in a civilized society.”
Werok was portrayed “as knowingly participating in illegal and/or improper activities.”
Leaf impugned Werok’s “honesty, trustworthiness, dependability and professional fitness and abilities.”
Werok has lost business, lost standing in the online community and suffered public disgrace and extreme reputational distress.
Werok is demanding that Leaf compensate it for the alleged harms, “in an amount to be determined at trial.”
Kassoff depicts the lawsuit as a stinker.
“Really?! We’re defending our trademark and now you’re telling us we defamed you?”
Kassoff said a company can lose its trademark protection if it does not defend it.
“We brought fun to the candy industry, Kassoff said. “It’s a fun name. It’s different. It’s really neat colors and really neat flavors.”
Leaf’s Sour Farts Flow Packs won the Most Innovative Product Award at the 2014 Sweets & Snacks Expo in Chicago.
Werok is not the first to flout the Farts brand, Kassoff said. He challenged the maker of Unicorn Farts, which claimed that Farts is a flavor, not a trademark.
“But no one has ever heard of doing a fart-flavored anything,” he said.
Amazon allows companies to register their brands, he said, to counteract counterfeit products. Amazon then verifies whether the brand is trademarked, and if it concludes that a company is violating the trademark, it takes the products off the online market.
Kassoff said Werok promised to stop selling Minions Farts and asked Leaf to retract its Amazon complaint.
“We get requests like that all the time,” he said. “They say they are so sorry. They say they didn’t know any better. They say we will get rid of it or change the packaging.”
Kassoff said he asked Amazon for guidance and he was told, “absolutely do not retract, because that gives them permission to put it back on, and we can’t help you at that point.”
By the way, Kassoff said, the cease and desist process is confidential and Amazon’s conclusions are not published.
“Until they sued me, it wasn’t even public,” he said. “Their fight is not with us. It’s with Amazon.”
Werok’s lawsuit was filed originally in Rockland Supreme Court, Nov. 29. Leaf had the case moved to the federal court in White Plains, Jan. 3.
Werok is represented by Adam K. Kurland, New City. Leaf is represented by Timothy Wedeen, of Wedeen & Kavanagh, Manhattan.