–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?