A firm that this year overcame a US ban on toy-filled chocolate eggs dating back to 1938 has been accused of patent infringement.
New Jersey-based company Candy Treasure, the maker of Choco Treasure surprise eggs, has just been hit with a lawsuit in the Southern district court of California issued by toy and confectionery brand owner Yowie North America.
Yowie, whose parent company is based in Australia where it sells its own toy filled chocolate eggs, accuses Candy Treasure of infringing Yowie’s 2000 patent on an edible and non-edible egg-shaped product with a chocolate outer layer.
Yowie claims patent infringement
Yowie’s lawsuit alleges that Candy Treasure knew about the 2000 patent based on comments on the Candy Treasure website which says:“Surprise eggs (chocolate eggs with a toy surprise) have been sold and loved around the world by different companies under a variety of brand names such as Kinder Surprise, Ovetto Sweet, Yowie and Wonder Ball. We love these products! That’s why we set out to make a similar version for America.”
Yowie contends that this demonstrates that Candy Treasure knew about Yowie’s patent and deliberately infringed it.
Yowie is calling for an injunction ordering Candy Treasure to stop producing toy filled eggs and is also claiming damages.
A Candy Treasure spokesperson said: “We cannot comment on any pending litigation and actually have not received details yet.”
Candy Treasure has its own patent on a Chocolate egg featuring a toy-enclosed capsule and ridge that was published in 2011.
Choco Treasure overcomes 1938 ban
Candy Treasure’s Choco Treasure eggs were deemed safe by the Food and Drug Administration (FDA) for sale in the US earlier this year and have been on sale at US stores including Target,and Food4Less.
The 1938 Food, Drug, and Cosmetic Act had outlawed, "non-nutritive items" inside confections, while the Consumer Product Safety Commission (CPSC) had specified that toys must be safe for children of all ages, which prevented products like Ferrero’s Kinder Surprise from sale in the US.
Candy Treasure overcame the ban by producing larger toys in a special capsule with a plastic ridge and bulls-eye button and that releases the toy.