Wrigley claims it would lose more than $2m in lost sales and rebranding if the product was pulled.
Mars-owned Wrigley last year attempted to register a trademark for the word ‘Swerve’ for use in chewing gum.
However, Swerve IP tried to stop Wrigley’s application by sending the confectioner a letter arguing that Wrigley’s use infringed its own registered trademark on the word “Swerve” – the name of its ‘all-natural’ erythirtol sweetener.
Wrigley filed for a declaratory judgment in the district court, while Swerve IP counterclaimed and sought a preliminary injunction.
Judge Harry D. Leinenweber ruled in the US District Court in Illinois on Friday that a full hearing was required and Swerve IP’s motion for a preliminary injunction will have to wait into the hearing.
Erythritol is derived from a natural microorganism found in honeycomb and also occurs also in fruits and vegetables, such as melons, grapes and asparagus.
Wrigley: $2m in losses if product pulled
During proceedings, Wrigley argued that it would suffer big losses if it was forced to pull the product.
“It contends that its immediate financial loss would exceed $2 million, including packaged inventory, ‘raw materials, lost sales, and rebranding costs; – as well as damage relationships with distrubutors and retailers,” said Leinenweber in his judgment.
“Furthermore, it contends, its relationships with distributors and retailers, including its share of shelf space, would irreparably suffer,” he continued.
Swerve IP, which registered the word in 2009, claimed that consumers could confuse Wrigley’s use of the word with its own and attribute both parties’ products to one producer.
It further contended that both companies’ goods were promoted on social media and sold in similar channels – a claim Wrigley disputes.
Does erythirtol work in gum?
The sweetener makers also said they hope to expand into the mainstream gum and candy market.
However, Wrigley contended that Swerve IP’s sugar-free erythirtol sweetener wouldn't work in gum.
“Wrigley further argues no mass-marketed all-naturally sweetened chewing gum exists, because all-natural sweeteners cannot cost-effectively provide the intensity and duration of sweetness that mass-market customers demand,” said the judge.
Wrigley added that erythritol also faces obstacles from numerous patents, some of which are held by Wrigley.
Swerve claimed that natural sweetened gums were already on the market, such as Glee Gum’s 100% xylitol product and Kraft Foods’ xylitol-based Trident gum.
Wrigley in turn argued that it was unclear where Glee Gum was sold and Trident’s xylitol was synthetic. This matter has been set aside until the hearing.
Wrigley added the ‘Swerve’ flavor to its 5 Gum range in July 2011. The product changes flavor when chewed from a tangy to sweet tropical taste.
Swerve IP’s Swerve Sweetener has been on the market since 2001. It is sold in retailers and online, and used for the commercial manufacture of some food products, including diet pralines.