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.