–Susan Perera, Attorney

As you likely know, many of the Duets Blog bloggers were involved in a full day trademark CLE last week. One of the sessions focused on the issues facing private label brands and the line between identifying your competitor by using similar packaging and infringing on their trademark or trade dress.

Along those lines, a friend recently sent me the picture below and asked my opinion of this packaging.   In the interest of continuing the conversation, I thought I would post the picture here and see what our viewing audience thinks.

Is it reasonable for the private label brand to use both the main color (purple) and the secondary color (yellow) as well as a highly similar font, font color, and outline color?

Or maybe you think everyone has the right to use purple with raisin filled cereals? Even General Mills uses purple with its raisin filled Total Cereal (credit to the Big G for calling its something other than “raisin bran”).

What about the use of “Raisin Bran”? Kellogg’s owns a trademark registration for Kellogg’s Raisin Bran and the Sun Design.  However, like all registered marks containing “raisin bran,” the term has been disclaimed. Does the similar font, color, and outline cross the line?

Please share your thoughts on private label brand and this example!

  • Steve Baird

    Susan, great post. As I recall our recent trademark program, one of the speakers, Jack Clifford, specifically mentioned Kellogg’s during the trademark bullying discussion, so, based on that perspective at least, you’d think they would have made a claim against Roundy’s on the trade dress if there were one to make. Perhaps we can have Jack weigh in on this one too?

  • Wow! I think that crosses the line into trade dress infringement, presuming Kellogg’s has such protection for its packaging. I noticed Trader Joes came out with a RICE CRISPIES cereal, which soon thereafter was re-branded CRISPY RICE. I suppose such brand owners think / hope they will be able to rely on the strength of their house marks to obviate any infringement, or maybe they just hope they won’t get caught.