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“SWISS”: Not a Neutral Mark

Posted in Famous Marks, Food, Infringement, Marketing, Trademarks

–Sharon Armstrong, Attorney

Reuters reported last week that Conagra Foods, maker of Swiss Miss hot cocoa, has sued Dean Foods over its use of the term “Swiss” in connection with teas. Specifically, the suit takes issue with Dean Foods’ new design mark for its Swiss Premium Teas, which incorporates a white font for the term “SWISS” and  a picture of snow-capped mountains on a blue background, which Conagra argues are similar to its SWISS MISS marks, which also incorporate the same features.

Here are the marks on their product packaging:   

                                                                               

Dean Foods could try to argue that its use of snow-capped mountains is descriptive for SWISS – after all, what small child isn’t aware after her first trip to the Magic Kingdom that the snow-capped Matterhorn is one of the natural jewels of the Swiss Alps? As for the lettering, however, Dean Foods may have to get more creative to argue that its font style and background are commonly used to evoke Swiss-themed products.   My extremely unscientific search of Google Images revealed that the term “Swiss,” as used in connection with food products, is most often used in white and red, no doubt evoking the country’s recognizable coat of arms:

   

Further, as courts are directed to evaluate composite trademarks for infringement as unitary marks – that is, fonts, pictures, words, and other elements together, as they are seen by the consumer – Dean may not get much mileage out of its use of the arguably descriptive snow-capped mountains.

What do you think?

  • http://www.coroflot.com/joelkirstein joel kirstein

    Stephen the issue here is that the case will come down to having design & creative issues decided by non-creatives and on that level, it works in ConAgra’s favor.
    As a package designer with more than 25 years of experience, it is my professional opinion would be tough for Dean Foods to prove that they went far enough to clearly delineate their brand from ConAgra’s.
    Within the realm of a thematic, we see the same color schemes, visuals, fonts, looks and feels all the time for seasonal campaigns like Christmas and Halloween and yet despite the fact they have huge consistencies to start with, they manage to set themselves apart just enough so no one feels like they are being plagiarized.
    There is very little subtly or nuance on the part of Dean Foods’ “Swiss” brand mark that sets it apart to the extent of the other 3 examples you showed. Their difference is just not that distinct enough to say it isn’t stepping on ConAgra’s brand.

  • James Kennedy

    The use of “Swiss” on non Swiss Made products can be construed as false designation of country of origin. If the Swiss Government ever availed itself of existing laws and Federal Trade Commission Rulings, they could prevent both brands from being sold. There are previous Federal Case laws on this issue of “Swissness” which demand that the true country of origin be revealed in a size type as least as large as the word “Swiss”