IP Law Daily, COPYRIGHT—N.D. Ohio: Tussle over candy store designs is neither short nor sweet, (Aug 20, 2025)

By Matthew Hersh, J.D.

The long-running copyright infringement dispute will have to go to trial.

A chain of candy stores and its former graphic designer will have to go before a jury to settle their long-running dispute over whether the store infringed on the designer’s copyrights by continuing to post her designs after she broke off relations with it, the federal court for Cleveland has held. But the court, in issuing a mixed ruling on the parties’ dueling motions for summary judgment, found that the store’s trademark counterclaims against the designer could be dismissed as a matter of law (Hilber v. Malley’s Candies, Inc., No. 1:22-cv-02305-BMB (N.D. Ohio Aug. 19, 2025)).

The lawsuit is a dispute between a candy vendor and its former graphic design artist. Malley’s is a chain of candy and confectionary stores in Northeastern Ohio. Caroline Hilber is an independent consulting graphic design artist in Cuyahoga County, Ohio. From 2018 to 2021, Hilber performed graphic design work for Malley’s as an independent contractor. Their relationship, which was based on an oral agreement, broke down in October 2021 over a fee dispute.

The graphic artist sued the candy store chain over the allegedly unpaid fees in an Ohio state court and separately filed a copyright and trademark infringement lawsuit against the chain in an Ohio federal court. Her 2022 federal complaint accused the chain of continuing to use dozens of her works in its advertising campaigns and also using alterations of her work that tarnished her reputation and goodwill. The candy chain, for its part, asserted that its use of the works was licensed and brought a counterclaim against the artist for trademark infringement, deceptive trade practices, and related claims arising out the artist’s continuing use of the images on her own social media.

The parties moved for summary judgment on discrete aspects of the claims, leading to this opinion.

Implied license. The court, denying both summary judgment motions on the issue, found that a jury would have to decide the candy chain’s implied license defense. Under the generally accepted test, the court noted, an implied license is created when one person requests the creation of a work, another person creates that particular work and delivers it, and the creator intends that the recipient copy and distribute the work. Here, the central factual question was whether the graphic artist intended for the candy chain to continue to use her works, or derivatives of them, after the relationship between the parties ended. Both parties argued that the court could decide the matter on its own—but the court declined to do so.

A jury would have to decide the implied license issue, the court found, because there were simply too many open factual questions about the artist’s intent. The candy chain argued that the artist provided native files of her work, thus evincing an intent that the chain continue to use, and even edit, the works in the future. The artist, by contrast, argued that she only sent Malley’s print-ready, noneditable files, and that the candy chain never made modifications to her designs during their relationship. This factual dispute, the court noted, precluded summary judgment. “With no written agreement between the parties, they put forth conflicting characterizations of their business arrangement and Hilber’s intent,” the court noted. “But the Court cannot make credibility determinations or weigh conflicting evidence on summary judgment.” The implied license issue would go to a jury.

Copyright damages. The court also refused to grant the artist’s summary judgment motion on profit damages. To the extent that the artist sought to recoup the candy chain’s profits as a form of damages, the court noted, she was entitled, upon the appropriate showing, to collect the company’s revenues derived from the use of the works minus the company’s associated expenses. The artist claimed that the company failed to provide, in discovery, any evidence of its deductible expenses—meaning that she should be entitled to profit damages in the amount of the full gross revenue figure. But the court said this question, too, would have to wait until trial. To the extent that the artist seeks to prevent the candy chain from introducing evidence on damages at trial that the chain purportedly failed to produce in discovery, the court noted, “she may object to specific evidence or testimony at the appropriate time.”

Trademark claims. Finally, the court easily dismissed the candy chain’s trademark-related counterclaims. The candy chain asserted that the artist continued to use its trademark on her social media pages after their business relationship ended, thus “holding herself out as a graphic designer for Malley’s when she is not.” But there was no evidence of actual confusion, the court noted—and to the contrary, the evidence showed only that the artist posted her designs as an example of her own work for the candy store chain, not to mislead customers. “Hilber is not selling candy or chocolate,” the court noted. “She is a graphic designer. She is not competing with Malley’s for customers. There is no relatedness of goods or services.” Thus, the court concluded, “if the products are unrelated, confusion is highly unlikely.”

The Case is No. 1:22-cv-02305-BMB.

Judge: Brennan, B.

Attorneys: Patrick J. Thomas (Ritzler Coughlin & Paglia, Ltd.) for Caroline Hilber. James B. Niehaus (Frantz Ward LLP) for Malley's Candies, LLC.

Companies: Malley's Candies, LLC

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