September 27, 2021

Volume XI, Number 270


September 24, 2021

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Trade Dress Claims Involving Food Design and Packaging

Your fond memories of the foods you enjoyed in your youth have to do with so much more than just the taste, the smell, and the mouthfeel. Try not to smile as you remember the curlicue on the top of a soft-serve ice cream cone, the sound it made when you opened a bag of potato chips, or the paper wrapping that would cling to the caramel of a Sugar Daddy lollipop when you unwrapped it just as the movie was about to begin. These identifiable but not purely functional features of the presentation of commercially marketed food products are known as trade dress.

Sometimes there is ambiguity about whether a feature of a food or its packaging counts as trade dress and is therefore protected by intellectual property laws. Some landmark court decisions illustrate what is and is not protected under trade dress laws. An intellectual property lawyer can help you prevent and resolve trade dress disputes.

Notable Trade Dress Lawsuits About Food Design and Packaging

The last year has seen some notable decisions about the protection of food and food packaging trade dress:

  • Pocky cookies and Pepero cookies (Ezaki Glico Kabushiki Kaisha v. Lotte International America Corp., 986 F.3d 250 (3rd Cir. 2021) – The Japanese company Ezaki Glicko has been selling Pocky cookies since 1978. The cookies are shaped like long, thin sticks and covered in chocolate, except for a small area at the end, meant to be easy to hold. When Pepero began selling similarly shaped chocolate-covered cookies, Ezaki Glicko argued that the cookies’ design was protected as trade dress. In 2020, the court ruled that the design was mostly functional and therefore not protected by trade dress laws. After a rehearing, the court upheld that finding.

  • Juicy Drop Pop and Squeezy Squirt Pop (Topps Company, Inc. v. Koko’s Confectionary & Novelty, 482 F.Supp.3d 129 (S.D.N.Y. 2020)) – The lawsuit was about whether the design of the packaging of two squeezable candy products, namely Juicy Drop Pop and Squeezy Squirt Pop, was confusingly similar. In 2020, the court ruled that the two products did not have confusingly similar designs, because the nozzle cap of Squeezy Squirt Pop is right next to the handle, whereas, on Juicy Drop Pop, they are at opposite ends of the product. The decision also noted other differences in design between the two products.

  • BANG and REIGN Energy Drinks (Vital Pharmaceuticals, Inc. v. Monster Energy Company, 472 F.Supp.3d 1237 (S.D. Fla. 2020)) – When Monster Energy energy drinks debuted a product called REIGN, the makers of an energy drink called BANG filed a lawsuit, in which they alleged that Monster infringed on their trade dress because of the similarity in the packaging of the two products. In a 2020 decision, the court ruled that the BANG packaging was not inherently distinctive. After the decision, the matter went to trial, and it is still being litigated.

Notice that none of these cases ended with a decision that the competitor product was infringing on the trade dress of the original.

©2021 Norris McLaughlin P.A., All Rights ReservedNational Law Review, Volume XI, Number 57

About this Author

David H. Siegel IP Attorney Norris McLaughlin New York
Senior Counsel

David Siegel concentrates his practice on all aspects of intellectual property strategy, maintenance, and enforcement. He represents clients in patent, trademark, and copyright prosecution, transactions, and litigation.

David has significant experience in intellectual property licensing and brand protection. He advises clients on global patent and trademark protection and clearance options and alternatives. David has represented inventors, businesses, and start-ups in patent-related matters such as the drafting, filing, and prosecution of patent...

Danielle M. DeFilippis Intellectual Property Attorney Norris McLaughlin New York, NY

Danielle M. DeFilippis, Co-Chair of the firm’s Intellectual Property Law Practice Group, focuses her practice on intellectual property matters and litigation. She appears on behalf of individual and corporate clients in all phases of litigation from commencement through trial.  Danielle regularly serves as lead counsel in cases before federal and state courts, the Trademark Trial and Appeal Board of the U.S. Patent and Trademark Office, and alternative resolution forums.

Danielle has represented clients in a variety of industries, most notably, food and beverage, liquor, jewelry,...