Candy Clones: Rivals Rolling

Look out, dieters. Just when you thought it was a good time to stock up on the Slimfast, along came the candy clones.

And these new chocolates now being introduced all bear an astonishing resemblance to a melt-in-your-mouth confection formerly sold by a distinguished, now-defunct Seattle department store.

You know what we're talking about. The small, brick-shaped chocolates, individually wrapped and packaged in a hexagonal box.

Give up? Clearly, we're talking about the Frederick & Nelson Frango.

Or the Nordstrom Best Mints.

Or the Boehms' Encore.

Or The Bon Marche's Ala Bons.

Or the Seattle Chocolate Co.'s Mint Chocolate.

With the closing of F&N stores this year, competitors have leaped at the chance to duplicate the department store chain's longtime success with Frangos. F&N is still in a dispute with Chicago-based Marshall Field & Co. over a licensing agreement that allowed F&N to make and sell Frangos. Marshall Field is F&N's former parent.

Meanwhile, even though its downtown store is now closed, F&N continues to make Frangos and sell them at Cafe Frango, a leased space at the corner of the downtown store. F&N considers the other candies to be, well, Frango fakes. Imitators. Pretenders to the throne.

"The first and best will still be available," sniffs F&N attorney Henry Farber, declining comment on whether Frederick's might mount lawsuits against the competition.

But competitors say Frederick's Frango ($6.95 for eight ounces) is just a standard version of what's known in the trade as a "chocolate meltaway," and its claim to being the first is certainly questionable.

As for best? Of course not, they chorus.

Nordstrom rolled out its Best Mints ($6.95 for eight ounces) in time for the start of its anniversary sale July 17. So far it's offering only mint-flavored chocolates but may offer more flavors next year, says Michelle Cote , Nordstrom gift buyer for Washington and Alaska.

"They've been doing quite well," Cote says, who notes that they're selling at all local stores except Northgate and Place Two outlets.

So is Nordstrom worried about infringing on F&N's patent? Hardly.

"The recipe is different with a higher grade of chocolate, no salt and no tropical oils, so we really don't feel there's any problem," Cote says. "It's a similar but different product."

Nordstrom's chocolates are made by Seattle Chocolate Co., using a recipe developed exclusively for Nordstrom. Seattle Chocolate Co. also makes a chocolate that is similar but different from the Frango.

Its version - minus the salt, plus the tropical oils - comes in mint, espresso and orange and is marketed under its own name. Since spring, it has been sold in specialty stores and pharmacies, in boxes featuring a color painting of Mt. Rainier.

The Bon has been making Ala Bons for years. Smaller and flatter than the Frango, and harder, they're more like a hunk of chocolate than a truffle or a meltaway. They sell for $5.95 for eight ounces.

Latest to join the Frango fray is Boehms candy company of Issaquah. Its Encore chocolates, resplendent in dressy, gold-foil boxes, debuted last week. At six ounces for $6.95, the candies are the smallest and priciest of the bunch.

Boehms owner Bernard Garbusjuk, once listed among possible buyers of the Frango franchise, also sounds the most nervous about having a Frango lookalike. Skittishly, he says Encore was developed in response to the popularity of "some famous meltaway confection in the area." A company announcement says Encore is "aimed to take up where a well-known product left off."

So is he afraid of being sued?

"No, of course not," Garbusguk says. "What are you going to sue me for?"

There's no trademark on the package, he says, "and we definitely don't use that recipe. We're doing a better product."

According to Jim Uhlir, a trademark attorney with Christensen, O'Connor, Johnson & Kindness, packaging, price of a similar product and about a dozen other factors can be taken into account when a court looks at such a case.

But a company can lose its trademark protection if it doesn't act against companies it believes are infringing on its trademark, Uhlir said. And the company's defense weakens with each additional imitator that comes on the market, he said.

A key issue for the courts is whether the product is so similar to the original that it is likely to confuse a customer. And a key issue for the company is determining which product features it wants to protect.

Frederick's, he said, may feel the Frango name is the only feature worth protecting - not the box shape or the wrapping - and consumers will assume that without the name on the box, "all the rest are just candy."