Battle Of The Me-Too Brands

July 1, 2006
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Battle Of The Me-Too Brands
BY PAULINE TINGAS
With private label competition on the rise and more SKUs than ever on the shelf, CPGs are fighting to preserve trade dress rights.  
Don’t innovate. Emulate. That’s long been the hallmark of many private label lines. So why is it that, when so many retailers are beginning to place more emphasis on branding their private label wares, so many are still turning out me-too packaging that only mimics the national brand?
Experts say it’s a tactic by those who see store brands only as margin opportunities, lacking the vision to see how they can offer a compelling reason for consumers to choose their stores over others.
Whatever the reason, the me-too phenomenon remains undeniably strong. And it’s even happening more frequently brand to brand.
CPGs, though, are seemingly in no mood to stand idly by. Recent months have seen a slew of lawsuits, including three from Procter & Gamble, in defense of trade dress rights.
Legal experts say that, to show packaging has violated trade dress, a brand must prove three critical points:

1. Consumers have come to associate the packaging with the product

2. Consumers confuse the packages, believing a connection exists between them
3. The packaging isn’t just functional but a recognizable “indicator” of the brand
Brands are sure having a tough go of it. Private labels are turning up the heat. And consumers are losing interest as more SKUS than ever take a seat at the shelf. Both good reasons to support the idea that brands are likely to aggressively police those threats. Consider these recent claims of trade dress infringement—you be the judge:
Hershey’s TAKE 5 vs. Twisted
In April, the Hershey Company filed a federal suit against Premier Nutrition, claiming that the packaging of its Twisted candy bar was too similar to that of Hershey’s Take5 brand—specifically its use of a red background and a golden-yellow product name on each pack. Introduced in December 2004, Take5 is one of Hershey’s most successful new products, taking in annual U.S. sales of $70 million according to the suit.
Result: Premier settled, agreeing to stop using the packaging and to pay Hershey’s an undisclosed sum to cover legal costs.
Procter & Gamble vs. Vi-Jon
Imitation is not flattering for P&G. The company sued Vi-Jon Industries, alleging that its mouthwash packaging and ad claims infringe on P&G’s Crest Pro-Health oral rinse. Key to the suit was the claim that Vi-Jon imitated Crest Pro-Health’s faceted-diamond bottle shape and the shape, metallic finish and general color scheme of the label. P&G reportedly enters about five trade dress and patent claims each year.
Result: Vi-Jon agreed to withdraw its oral rinse from the market
VITAMINWATER VS. SOBE
Vitaminwater filed a trademark suit against PepsiCo and its SoBe unit over the soft drink company’s recent Life Water introduction. The suit says SoBe’s product is a “slavish knockoff” that imitates vitaminwater’s bottle design and the color of its product. The suit also points out that the new SoBe product looks nothing like its traditional line of drinks, which come in premium glass bottles. PepsiCo’s initial response: “There is no merit to their claims.”
Result: PepsiCo agreed to change the label and cap on its new brand. No word on any changes to the ingredients, which vitaminwater also said mimicked its own.

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