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Nestle Sues Fit Crunch Over Identical Trade Dress That Isn't Remotely Identical

from the virtually-dumb dept

They say that a picture is worth a thousand words. Yes, we’ve all heard that maxim before, but rarely does it ring so true as it does regarding the trademark case between Nestle, the candy giant, and FortiFX, much smaller makers of Fit Crunch bars. Fit Crunch bars appear to be marketed as a healthier option compared with traditional candybars. Nestle took notice of the name of the Fit Crunch bars and has claimed the name and, more importantly and central to their claim, the packaging in which they’re sold, is trademark and trade dress infringement.

According to Nestle USA, which claims that Pervine’s “remarkably similar packaging in combination with the confusingly similar trademark” is causing the world’s biggest food company “irreparable harm”, the likelihood that consumers will confuse the two products is heightened by the fact that the products are being sold to “the same consumers, in the same stores”.

Writers note: as always, I want to thank Food Navigator USA for forcing me to type these pull-quotes out, because simply trying to copy/paste the relevant text generates a popup telling me all about how the text on the site is copyrighted and I may not make use of it. Except that I can, because my use falls under fair use, so Food Navigator USA can suck it.

Anyway, the fact that both bars contain the word “crunch” seems in and of itself to fail to meet the bar for trademark infringement. After all, the term is simply referring to the descriptive nature of the foodstuffs of the product, in that they crunch when eaten. Instead, the trademark infringement claim therefore has to be considererd alongside the trade dress infringement claim. And that claim rests on Nestle’s description of the packaging of both products. According to Nestle’s filing, “Pervine appears to have outright copied every key element of Nestle’s CRUNCH Trade Dress.”

As I said, a picture is worth a thousand words. Here are your outright copied packages and trade dress:



If those are identical, I am in sore need of glasses and/or new brain-matter, because those are absolutely not identical. In fact, far from being copied, I’m struggling to see what about Fit Crunch’s branding is in any way similar to Nestle’s beyond the use of the word “CRUNCH” and the color blue. The background images are different, the information on the packaging is different, and both packages clearly identify the source companies. Even the two candy bars themselves look completely different.

Sorry, Nestle, but this one doesn’t pass the smell test.

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Companies: nestle, pervine

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Comments on “Nestle Sues Fit Crunch Over Identical Trade Dress That Isn't Remotely Identical”

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77 Comments
Anonymous Coward says:

I buy it

I saw the headline, and then scrolled down to see the picture. I expected that there would be no way someone would be confused by this product. After a quick glance I think I understand where Nestlé is coming from. The colors in particular could easily lead someone to believe that these two projects are related and that they are both from Nestlé. If they had simply chosen different colors I don’t think there would be any opportunity for confusion.

Anonymous Coward says:

Re: I buy it

Yeah. A white and dark blue package, weight information in the bottom right, a red “Crunch” the most prominent word, and the brand name in white text on the left end of it. Those are presumably the “key elements” that Nestle’s lawyers are referring to.

I’d be skeptical that could meet the standards for trade dress infringement as I’m not familiar with them. However it isn’t all that difficult to see where Nestle’s coming from.

Drawoc Suomynona (profile) says:

Re: Re: I buy it

Yeah, I agree with the previous comments. CRUNCH is used on other similar products, both descriptively and as a trademark (and there are many registrations for candy and chocolate products not owned by Nestle) but the choice to use essentially the same color scheme, the same shape, on the same or similar kind of product, seems questionable.

I also note the use of the word “identical” in this story. The packages don’t need to be identical for there to be infringement, but more to the selected wording, I don’t see where the claim is made that they are identical. Not sure what the suit says, but Nestle above says “remarkably similar” and “confusingly similar”, which seems accurate, and says the other product “copied every key element of Nestle’s CRUNCH Trade Dress” which is debatable, but no one but the author uses the term “identical”. Why employ such a word when it’s not the issue or the bar that needs to be reached?

Similarly, the author notes that both packages have the word “CRUNCH” and the color blue, but fails to note the use of red for “CRUNCH”, or any of the other apparent similiarities spotted by the commenters here.

When certain key elements of the story are overlooked or glossed over, but others are discussed in detail, it seems disingenuous and self-serving.

PaulT (profile) says:

Re: I buy it

“The colors in particular could easily lead someone to believe that these two projects are related and that they are both from Nestlé”

You’re right! Plus, because they’re both coloured red and white, I would totally get confused between Budweiser and Red Stripe! Happens all the time!

Wait, never. I meant never. You’d have to be blind or an idiot to do that.

“If they had simply chosen different colors I don’t think there would be any opportunity for confusion.”

I guess they’ll have to apologise for assuming that potential customers were not blind idiots. You have proven them wrong, it seems.

SirWired (profile) says:

Re: Re: I buy it

But it’s more than just the coloring that is identical… the new product is also called a “Crunch” bar, along with the angle of the name.

If Budweiser released a beer called Bud (in small letters) RED STRIPE (in big letters written on top of a red stripe, but maybe a wider one in a different font), you can bet the Diageo would be suing A-B InBev in about thirty seconds.

A consumer won’t confuse it with an actual Crunch Bar, but they certainly could think that these people obtained a license from Nestle for the Crunch name so they could sell a “healthier” version.

BJC (profile) says:

Re: Re: Re:2 I buy it

I think Nestle has a non-frivolous case, but I agree with you that the bars are different-looking (especially the bar shown in the linked article) because there is a difference in what the law IS, and what the law SHOULD BE. I think Mr. Geigner does the reader a disservice by not recapping, as is done often elsewhere on TechDirt,that the law is contrary to the author’s opinion but is also, in the author’s opinion, deeply stupid.

In a perfect world, we’d be able to quantify exactly what point something moved into trade dress infringement, setting it maybe to 95+%, and only allow suits when something crossed that line. Under a perfect world test, no, those bars aren’t the same.

But we’re not in a perfect world. There are lots of court decisions out there on colors and shapes and positioning that make this issue pretty fuzzy, and the bars shown in the TechDirt post are close enough that, were I to use the judgment entrusted to me by several states’ bars to practice law, I would not say that they are so obviously different that a suit would be frivolous, because there’s a history of prior successful cases in that gray area.

JMT says:

Re: Re: Re: I buy it

“A consumer won’t confuse it with an actual Crunch Bar, but they certainly could think that these people obtained a license from Nestle for the Crunch name so they could sell a “healthier” version.”

The tiny number of dimwitted people who would leap to that conclusion do not warrant this stupid lawsuit and it’s resulting waste of everyone’s time and money. Why do we always have to obsess over what the dummies might think! Do Nestle really think that (a) this lawsuit will somehow educate these dummies and they’ll and stop accidentally buying a Fit Crunch under false pretenses, and (b) the resulting increase in revenue will cover the cost of the lawsuit?!

New Mexico Mark says:

Re: Re: I buy it

Candy is not primarily marketed to reasonable humans making well thought-out decisions.

FWIW, I can’t distinguish a difference in the shade of blue on the two packages and they had thousands of choices, even if they were dead set on using blue.

While I think Nestle is overreacting, my opinion is that FortiFX deliberately tried to make the packages similar enough to fool an impulsive buyer. If their product is good on its own merits, they should have tried to be as different as possible in order to establish an unequivocal look to their brand.

Of course, our opinions don’t matter that much. What will matter is which side can convince a jury.

Scote (profile) says:

That looks like a deliberate attempt to leverage Nestle’s trade dress to me, down to identical shades of red and blue, the word “CRUNCH” on a rising diagonal, surrounded by a jagged outline. Identical? No, but there is also pretty much no way the similarity is accidental.

I’m against the over enforcement of trademarks, as with Monster Cable, Intel, etc. But this looks potentially legit to me. It’s snack food, too, not some completely different category (even if one is supposed to be healthier).

Klaus says:

Re: Re:

Granted, however, I’m willing to bet that both Nestle & Pervine spend an shed load of time & effort on market research. Packaging is critical to selling products. Their analysts will be telling them precisely which colours and shades sell best to their key demographics, what the optimum size and shape of bars is, which fonts to use, etc.

I don’t see anything sinister in two snack bars being similar.

Klaus says:

Re: Re: Re:

Actually, I’m going to refute my own comment here. I’ve just been to our break-out room where we have one of those snack machines. If what I said earlier about market research was true, I’d expect all snack bars to look vaguely similar, but they don’t.

There’s quite a motley collection in there…

Anonymous Coward says:

Re: Re: Re: Re:

Yeah, trademark issues aside, companies generally want their product to stand out from the competition. “Rectangular brown packed with ‘chocolate’ written on it” is something practically anyone who makes a chocolate bar can get away with. Few of them wish to do that, because they want consumers grabbing their chocolate bar, not grabbing one at random because they all look more or less the same.

Ian W says:

Not that this is really the right place to post this comment/advice, (and I think the call-out is probably more to make a point than a lack of tech knowledge) but re:
Writers note: as always, I want to thank Food Navigator USA for forcing me to type these pull-quotes out, because simply trying to copy/paste the relevant text generates a popup telling me all about how the text on the site is copyrighted and I may not make use of it. Except that I can, because my use falls under fair use, so Food Navigator USA can suck it.

As much the web site *think * they can protect such content, consider looking at the source page ( or as the anonymous coward says – use the source, Tim):
Firefox: Tools | Web Developer | Page Source
Internet Explorer: View | Source
Chrome: More Tools | View Source

http://www.wikihow.com/View-Source-Code

A little copy/pasting and you’ll save the typing!
Folks – no flaming pls – it’s fair use!

PaulT (profile) says:

Re: Re:

One of these days, you morons might actually provide facts instead of whining. What did he get wrong? What didn’t he understand? What explains the issues being discussed? What’s a good reference for people to use to clarify these issues in future?

Who knows, you won’t bother saying. But you managed to get a couple of attacks in while saying nothing, so who cares, right?

Sheogorath (profile) says:

Re: Re: Re:

I have to agree with you. In the 00s, I was able to try various types of candy thanks to a small shop in Shipley. Whilst you guys have something going on with Lifesavers and Hot Tamales, when it comes to chocolate, either we Brits are really spoilt or you Americans have no taste buds. Peanut Butter Cups would actually be edible if they were made with more cocoa solids and less cocoa fat. 🙂

Uriel-238 (profile) says:

Re: Re: Re: It's a mass market thing.

Hershey and Mars chocolate are waxy and untempered. They may also use non-chocolate flavorings.

We have some specialty American chocolates still but many of them have been bought up by Hershey and are now supplied by a single Artisan factory in Chicago. I miss having the small Scharffen Berger plant in Oakland.

Ghirardelli still makes chocolate in San Leandro but they’re owned by Lindt now, so I can’t say if their quality has changed.

What’s interesting to me is the Hershey and Mars mass market chocolate is crap and expensive, while I can get imports at significantly cheaper prices, but I buy bulk, and the mass market stuff aims for the single-serving sizes in concession aisles.

Sheogorath (profile) says:

Re: Re: Re:2 It's a mass market thing.

Ghirardelli still makes chocolate in San Leandro but they’re owned by Lindt now, so I can’t say if their quality has changed.
Possibly, possibly not; it all depends on what the quality was in the first place since Lindt know what quality is when it comes to food (in the UK, at least). I just wish that knowledge extended to 501s so they quit donating to one that recommends warehousing Autistic people in a place where shock collars are used as ‘treatment’.

SirWired (profile) says:

I'd have sued too

They used the same shades of blue and red, the word “crunch” is at a similar angle, and of course it features the “Crunch” name most prominently.

A “Trade Dress” claim does not mean that the two are so close that if you aren’t paying attention you’ll grab the wrong one; it’s an attempt to trade off the reputation of a brand you don’t own by selling something that a reasonable consumer thinks is the same brand.

If they’d called it a “FitCrunch”, used a lighter shade of red and a darker shade of blue, you could have an argument, but this seems pretty clear-cut to me.

Anonymous Coward says:

Look at store brands

Seems to me that a whole lot of items on the grocery shelves have both “name brands” and “generic store brands”, where the store brands absolutely make an effort to mimic the look of the name brands. It’s really obvious in the cereal isle.

Makes me wonder how they decide who is worth pursuing.

SirWired (profile) says:

Re: Look at store brands

That one’s easy. Manufacturers that want to not go bankrupt try to avoid suing their own distributors (i.e. grocery stores) if they can at all help it.

In any case, as long as the store brand is quite prominent, most people understand that BillyBob’s Grocery “Crispy Rice” is not endorsed by Kellogg’s, even if they chose to package it in a light-blue box.

If Kellogg’s made an issue about it, you can be sure that BillyBob’s (while they might comply with the request) is never going to put a Kellogg’s product on an end-cap, feature it in a sale ad, or put it on a shelf other than the tippy-top one ever again.

In this case, it’s NOT a store brand, it’s an outright competitor that a consumer could easily think had gotten a “Crunch” license from Nestle due to the package similarities.

Anonmylous says:

The colors are different. Call both companies and I guarantee you their pantone palettes are different (the colors look different on my monitor but that means nothing as they could have been taken in different lighting with far different camera settings). So in a general sense, its white, blue and red. In a specific sense, its completely different. This may seem trivial but its very important their production and marketing departments.

Fit Crunch also:
Uses a picture of the product on the packaging.
Uses a different font for the word Crunch
Uses no drop shadow for the word Crunch
Uses an outline on the letters of the word Crunch, then a stamp, then an accent around the whole in opposing colors to the background.
Puts the word Crunch on a horizontal axis, Nestle tilts theirs.
The company name is in black, in a different font, with additional brand graphic below in a 3rd pantone red color PLUS an orange.
Splits the top and bottom half of the packaging into 2 colors, Nestle uses a color on field
Has additional red element flag in upper right with nutrition details
Has additional grey elements, Nestle uses only 3 colors.

From a design standpoint the packages are incredibly dissimilar and even though your average person is NOT a graphic artist, I am certain no child would look at this and think it was a Nestle Crunch bar.

Crunch is Crunch, not cookies and cream, doesn’t have white filling, is not 1/2 inch thick and narrow, and is usually broken in the package already for easier consumption.

Uriel-238 (profile) says:

Is Nestlè a respected name brand now?

Throughout my childhood, Nestlė was a Golden Poo company if there ever was one, who engaged in tons of unethical practices to drive out local competitors or sell false products, in some cases directly causing famine in regions. (famine = mass starvation = lots of people including babies and little children dying because fuck ’em, they’re brown)

Has Nestlè been able to get past their 20th century crimes?

Because if I were Pervine, I’d want to associate myself with Nestlę as little as feasibly possible, paint the package orange, call it Munch and put a Totally not a Nestlě product disclaimer.

Nestlȅ is the Comcast of food. You buy from them because there’s no other company that makes the thing you need. Hard to do because most of the the food companies out there are Nestlȇ subsidiaries.

Amusingly enough, Nestlӛ itself isn’t American, it’s Swiss, and demonstrates that sociopathic companies can spawn from anywhere, not just the hypercapitalism of the US.

SirWired (profile) says:

Re: Re:

Well, that actually clarifies things a bit. They probably chose that color for the background because it’s the blue used on Oreo bags, and this is the Cookies ‘n Cream flavor.

Nevertheless, it DOES look similar enough to the Nestle Crunch trade dress that it still needs changing. It was likely not a malicious choice to ape the Nestle Crunch trade dress, but that doesn’t mean it’s not too similar.

Aaron Toponce (user link) says:

Doesn't pass the "moron in a hurry" test

As is mentioned hundreds of this time about trademark infringement, it must pass the “moron in a hurry” test to not infringe on a mark. I don’t think this does. The colors come from the same palette, the “CRUNCH” is all capitalized, and the image of a chocolate bar on the wrapper can give you the impression this is a Nestle product.

Are the marks identical? No. Does the Fit Crunch bar infringe on Nestle’s mark? Likely.

I’m surprised that Timothy Geigner has the opinion in this post that he does. If this “Fit Crunch” were, say, a product for abdominal crunches, using a different color palette, then I would agree with the opinion. In this case, however, I think it’s fair to call this infringement.

David (profile) says:

The two pictures on the FoodNavigator site would be very hard to confuse. The two pictures here on TechDirt, however, could be confused very easily (not as an identical product, but as a very closely related product that might be sold by the same company).

Whether it’s close enough to be infringing is obviously a decision for the courts, but it’s close enough that I wouldn’t immediately toss the case out.

jaquer0 (profile) says:

I think Nestle has a reasonable point

If I were looking for a snack at a convenience store and Nestle Crunch were among the ones I’d be likely to buy, among three or four others, the color scheme and prominent display of the word “Crunch” might lead me to pick this one up thinking it was Nestle’s. Even if I noticed the packaging is a little different I might just dismiss the thought because it must be a different size or simply a refresh in the packaging.

I might even observe that this is no longer a “Nestle Crunch” but a “Fit Crunch,” and chuckle to myself about Nestle trying to pass it off as a healthy snack.

I think the writer’s defense of this very blatant attempt by a competitor to abuse for its own advantage the brand equity of Nestle’s product borders on the ridiculous. It’s the exact same shade of the main color. It’s the exact same main word. It’s a very similar layout on the front of the package. This was done consciously with malice aforethought.

You might say, only a minority will confuse the two products, buying the wrong one. That may be, but even a smallish minority of a few percent is enough for that infringement to unfairly harm Nestle. In addition, there may be many times that number of Nestle Crunch consumers whose eye is caught by the very similar packaging and, even after realizing the products aren’t the same, a few will just decide to try it instead of Nestle’s item?

And let’s be honest: is there anyone who doubts for a moment this identification overlap between the two products is precisely what the maker of the “Fit” product wanted?

The only debate is whether this “catch the attention of consumers” effect by using the same most prominent word, very similar placement on the package, and identical main color on the bottom half of the packaging should be considered wrong or not.

And remember: this is not like buying a car or even making a $100 purchase. This is a $1.00 purchase and so the identification will be made at a glance, usually without a second thought.

That is the reality, and what it means is this: IMHO, that “trade dress” is intended to take advantage of consumer familiarity with Nestle’s brand, and its reputation and standing, through at least an initial and momentary confusion, which, in a minority of cases, will lead to a person paying for the Fit snack thinking they were buying the Nestle one. It may be only one out of 20 or even 50, but it is going to happen.

And then you have some additional number of lost sales to Nestle among those who would not have considered this alternative save for the initial confusion with the Nestle product.

Now if Fit had diverted sales from Nestle by calling its snack “Communist Revolution” and advertising it’s redder-than-a-firetruck packaging by completely buying out every last ad space during the Superbowl, fair enough. But not by calling its product “crunch” and packaging it in such a way that at first glance, it seems to be the other company’s product.

Just think about how this product is actually sold. You don’t go to a candy bar showroom and pick up the literature on the models you’re interested in, go home and read it, come back, haggle over the price and so on, and finally try to arrange financing. Instead, you stand in front of a rack with many dozens of these items feeling your stomach growling and out of the corner of your eye you spot the familiar blue of one of your favorites, and as you pick it up you notice they’ve changed the packaging a little, but, yeah, it’s “crunch.”

That’s a swindle, because NO ONE stops to consider the packaging in the detailed, systematic, anal-retentive way this article poses.

If *this* is not infringement, then only direct, immediate fraud, where some other sugar water is sold in those curvy Coca-Cola bottles, would constitute infringement, and the legal concept of infringement of trademarks and trade dress would loose all meaning, since the only prohibited conduct would simply be outright fraud.

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