Penguin Apparel Brand Targets Crypto IP Pudgy Penguins in Trademark Infringement Lawsuit

The firm behind global brands like Perry Ellis and Original Penguin is suing Pudgy Penguins—the crypto brand born out of the Ethereum NFT collection of the same name—for trademark infringement, a Wednesday filing in the District Court for the Southern District of Florida shows.

PEI Licensing, which operates the Original Penguin brand, alleged that Pudgy Penguins’ “unauthorized use and attempted registration of various Penguin word and design trademarks” constitutes a violation of laws designed to protect fair competition and trade practices. 

Since launching its Ethereum NFT collection in 2021, Pudgy Penguins has gone on to become one of the biggest brands and native IPs in crypto.

The brand also has its own Solana-based culture coin, PENGU, and previously landed its physical toy line in major retailers like Walmart and Target, ultimately selling more than $10 million worth in less than a year.

PEI, which has been using a penguin design on apparel since at least 1956 and a penguin word mark since 1967, claims that the nascent crypto brand’s conduct “causes damage and irreparable injury to PEI, and to its goodwill and business reputation.” 

“[Pudgy Penguins’] use of defendant’s marks is likely to mislead, deceive, and confuse the purchasing public and the trade,” the suit reads. “It is likely that consumers will mistakenly believe that defendant is connected, associated, or in some way affiliated with PEI, when in fact no such connection, association, or affiliation exists.”

To back its claims, the firm provided examples of “immediate similarities” in its apparel and headwear side-by-side with those offered by Pudgy Penguins. 

Also noted in the suit is the Pudgy Penguins application to register trademarks for phrases like “I am my penguin and my penguin is me,” and “Pengu Nation,” which the brand aimed to use on the same types of goods that PEI would utilize its own penguin trademarks. 

“These goods and services are identical to those with which PEI uses its Penguin marks and nearly identical to those for which PEI owns registrations,” the suit reads. 

While the suit was just filed on March 4, PEI said it sent Pudgy Penguins a cease-and-desist letter regarding the infringement as early as October 20, 2023. It later filed opposition notices to at least two of the Pudgy Penguins applications with the United States Trademark and Patent Office in 2024, according to the suit. 

“Following PEI’s cease-and-desist letter and PEI’s oppositions, [Pudgy Penguins] continued to use defendant’s marks in commerce in connection with apparel and online sales of apparel, and did not abandon defendant’s applications with the USPTO,” it reads.

The firm suggested that Pudgy Penguins’ continued use of its marks on apparel and other products are “willful and intentional acts intended to trade on the reputation and goodwill of PEI.” 

As a result of its claims, PEI has requested monetary relief of all profits from Pudgy Penguins’ sales of items using similar marks, that its applications with the USPTO be immediately rejected, and that all products in the custody of the crypto brand that bear confusion with PEI’s marks be rounded up and destroyed. 

“Pudgy Penguins has been made aware of the lawsuit filed by PEI and was surprised by the action, particularly as both parties had been engaged in productive discussions to resolve this matter privately,” Jennifer McGlone, Chief Legal Officer of Pudgy Penguins & Igloo Inc, told Decrypt.

“To date, Pudgy Penguins has prevailed on advancing these applications before the U.S. Patent and Trademark Office, and we remain confident that PEI’s claims lack merit,” McGlone added.

The executive called the trademarks “visually distinct” and said they cater to “entirely different” markets and audiences.

“We have the utmost confidence that we will prevail as Pudgy Penguins has already secured multiple trademark application approvals from the USPTO covering the Pudgy Penguins brand and related marks,” McGlone said.

Attorneys for PEI Licensing did not immediately respond to Decrypt’s requests for comment.

Editor’s note: Adds response from Pudgy Penguins’ Chief Legal Officer, Jennifer McGlone.