Since 2005, Archway has used a red-and-gold plastic packaging for its best selling oatmeal and oatmeal-raisin cookies. Apparently in the last few weeks, Voortman began selling its oatmeal and oatmeal-raisin cookies in a very similar red-and-gold packaging. Archway alleges that the infringing packaging is designed to “exploit the uncertainty among both consumers and the retail trade resulting from the Archway bankruptcy” in order to confuse consumers into believing that Voortman is the new owner of the Archway brand.
Here are pictures of the two brands:
Given the obvious similarities, the primary issue will probably be whether Archway’s product packaging is distinctive enough in the marketplace to serve as a source identifier (i.e. whether Archway’s packaging is protectable trade dress)? While product packaging can be inherently distinctive (see Two Pesos, Inc. v. Taco Cabana, Inc., 505 U.S. 763 (1992); Wal-Mart Stores, Inc. v. Samara Brothers, Inc., 529 U.S. 205 (2000)), because Archway’s trade dress does not appear to have been registered with the PTO, it will first have to demonstrate that its product packaging is inherently distinctive (so unusual and memorable that it is likely to serve primarily as a designator of origin of the product) or, alternatively, that it has acquired a secondary meaning such that consumers have come to associate the packaging exclusively with Archway.
It's not clear how much advertising dollars Archway has spent in the relatively short period of time (since 2005) in which it has been marketing its cookies using this product packaging. However, evidence that another party has intentionally copied a particular trade dress will often times be considered strong evidence by the court that the trade dress has acquired a secondary meaning.
You be the judge.