Last month Heinz, a brand “synonymous with ketchup throughout the world,” and a seller of “650 million bottles of Heinz ketchup each year,” brought a federal trademark infringement and dilution lawsuit in Texas to enforce exclusive rights in the “famous” Heinz bottle design against Melinda’s Habanero Ketchup brand. Here is the Complaint and Exhibits A, B, C, and D. And, here is the Dallas Observer’s side-by-side depiction and skeptical commentary:

In fairness to Heinz, a side-by-side comparison is not appropriate for testing likelihood of confusion purposes, unless the products actually appear on store shelves side-by-side.

The lawsuit alleges that each of the below bottle design marks are “inherently distinctive” and that Melinda’s bottle design is “nearly identical” to Heinz’s “highly distinctive glass bottle design”:












Who buys glass ketchup bottles anymore? After all, Heinz Dip & Squeeze is genious, right Dan?

Yet, for now, as the song says, anticipation is keeping me waiting for the court’s decision on this interesting case . . . .

So, in the meantime, what do you think of Heinz’s claims? I’m not reading a trade dress claim, just bottle shape, do you agree?

And, how does Heinz’s bottle design compare to the Coca Cola contour bottle in terms of recognition?