Wrigley has sued Cadbury in the Northern District of Illinois, over Cadbury’s use of the TRIDENT E-Z Close Pack (pictured above) and DENTYNE Soft Chew Pack.
Wrigley’s trade dress is described as:
‘a curved edge along a face of the packaging; a half circle design on the lower portion of a face of the packaging; and the display of the product when the packaging is in an open position such that a portion of the products is visible.’
Text of complaint here.
UPDATE: Our litigation partner, Glenn Mitchell, gave the complaint a once-over and this is his reaction:
The complaint is, to put it diplomatically, minimalist, in that:
Wrigley does not identify the brand with which it uses the trade
dress;
No photos or drawings of the claimed trade dress appear in, or are referenced in the complaint;
While not strictly necessary, if one is claiming that one’s trade dress has acquired distinctiveness, we would expect to some factual underpinning, in the nature of reference to sales, third party press, or specific activities calling attention to the trade dress as a source identifier (so-called “look for” advertising)
We are also struck by the fact that defendant’s marks are DENTYNE
and TRIDENT, among the most famous gum trademarks in the country and we suspect, based on our vast gum-consuming experience, that the major Wrigley brand employing the claimed trade dress is ORBIT, which itself has become very well-known.
We are reminded of the EXCEDRIN PM/TYLENOL PM case (Bristol Meyers
Squibb v. McNeil ppc,973 F2d 1033 (2d Cir 1992), which held, among other things, that, even in the face of clear evidence of intentional copying, the prominent use of famous marks on the packaging may prevent confusion between otherwise similar packages.
We also did some field research, going to a candy store at lunch, to investigate point of purchase display of gum, where we observed that the packages at issue are displayed with the famous brand names on the front, and the trade dress elements in question on the back, such that they would not be visible to the consumer until picked up.
Also, we note that at least the Trident package is called the “E-Z
Close Pack,” suggesting that they are promoting their packaging as functionally superior (a test run proves that this is so, particularly compared to previous TRIDENT packaging, which tended, once opened, to deposit individual sticks in whatever pocket/handbag the package was stored).
In any event, Plaintiff’s argument that defendant’s modification of the
packaging disproves functionality (an apparent variant of the long-since-rejected axiom that intentional copying is evidence of distinctiveness) is not self-evident – don’t manufacturers desire to improve functionality?
Finally, we had Greek food for lunch (and therefore we needed some especially minty gum).