Just Born, the company behind the iconic Peeps marshmallows, just kept its federal case against Maillo Confections alive. On August 27 a New Jersey district judge refused to throw out the trademark infringement, trade dress, dilution, and unfair competition claims. The rival’s bunny-shaped candy remains on sale for now, but the lookalike is still in the wild and still feeding on seventy years of Peeps goodwill.
The suit, filed April 27 in the District of New Jersey, targets Maillo Confections LLC and The Snackatere NJ. Just Born says the defendants sell marshmallow bunnies that are “virtually identical” to the registered Peeps bunny configuration. Same plump body, same ears, same silhouette that has defined Easter baskets for generations. The complaint alleges the shape is non-functional, distinctive, and famous enough to support both infringement and dilution theories.
Judge Stanley R. Chesler agreed the functionality and genericness questions are fact-intensive. They cannot be decided on the pleadings. Dilution and state-law claims also survive. The case moves forward into discovery.
What the judge did not do is issue a preliminary injunction. Different packaging, he found, makes immediate consumer confusion less likely at the point of sale. So the competing bunnies stay on retail shelves and online while the parties litigate the deeper questions of shape protection and secondary meaning.
That is the blood-and-consequences part. A junior user can keep shipping product, keep taking sales, keep diluting the senior mark for months or years while the case grinds on. Inventory already on the shelves is not automatically destroyed. Rebrand costs, if they eventually come, land later. Profits already earned may or may not be disgorged. The senior brand’s only cheap moment was before the lookalike hardened into commerce.
The shape was already someone else’s problem
Peeps did not invent the idea of a marshmallow animal. They industrialized it, registered the configuration, and spent decades teaching the public that this particular bunny silhouette means one source. When a competitor appears with a near-copy, the fight is not about whether the shapes are mathematically identical. It is about whether the overall commercial impression is close enough to cause confusion or to blur the senior mark’s distinctiveness.
Courts have long treated product configuration as protectable trade dress when it is non-functional and has acquired secondary meaning. The Peeps bunny has both: decades of exclusive use, massive advertising, and near-universal recognition as an Easter icon. That is exactly the kind of asset that lookalikes target. Exact copies are rare. One-ear adjustments, slight plumpness changes, and different packaging are the everyday reality.
The denial of the injunction does not mean the claims are weak. It means the court wants a fuller record before it freezes a competitor’s sales. Discovery will now dig into sales data, consumer surveys, advertising history, and the precise degree of similarity. For Maillo the meter is running. Legal fees, potential redesigns, and the risk of an eventual permanent injunction or damages award are already part of the cost of doing business with a confusable shape.
Offices will not stop the lookalike for you
Trademark offices examine absolute grounds. Relative grounds—likelihood of confusion with an earlier mark—are largely the owner’s problem. Opposition windows are short, typically thirty to ninety days after publication. Miss the window and the junior mark can mature into a registration. After that the fight moves to expensive cancellation or infringement litigation.
Failure to watch lookalikes is how rights weaken. Dilution sets in. Customers start mixing sources. Expansion into new channels or geographies becomes harder. At due diligence the story turns into a liability. The work of watching a mark exists precisely because the cheap moment is the one before the lookalike hardens.
Exact copies are rare. The real damage comes from one-letter shifts, phonetic twins, mascot cousins, and packaging that feels familiar at a glance. Watching the register is cheaper than a roadside rebrand, cheaper than destroying inventory, and cheaper than explaining to investors why the brand equity is softer than the numbers suggested.
The Peeps bunny was already someone else’s problem the day the first competing marshmallow hopped onto a shelf. The only cheap moment is before the lookalike hardens.