Cookies, candies, and other goodies are not just childhood pleasures; they’re big business as well. Food producers pour substantial resources into creating and promoting distinctive brands that inspire unique associations in consumers’ minds. In jostling for consumers’ attention and loyalty, food companies don’t rely solely on word marks and logos, but on beguiling packaging, and, in certain cases, on the distinctive shape of the morsels themselves. In so doing, food producers continue to expand the borders of trade dress jurisprudence.
Food producers have had mixed success in seeking to carve out trade dress rights in their product packaging. Both Coca-Cola and Maker’s Mark have secured protection for and effectively enforced trade dress rights in their respective bottles’ designs. On the other hand, in 2014, Kind LLC unsuccessfully sought to enjoin its rival Clif Bar & Company from using allegedly infringing “slender, semi-clear” wrappers on its competing Clif Bars. In thwarting Kind’s motion for a preliminary injunction, the Court held that “despite the tendency for trade dresses to be inherently distinctive because the whole universe of materials and designs in available for packaging, [Kind’s] very common packaging design”—consisting chiefly of transparent panels and a description of the bar within—lacked distinctiveness, whether inherent or acquired, and was not entitled to protection.