Over the past few weeks, several of my LinkedIn contacts have published posts about the Mondelez vs. Aldi lawsuit. In case you missed it, Mondelez has accused Aldi of deliberately using packaging that is very similar to their own, with Oreo as the primary example. A brief internet search led me to a copy of the filed complaint. Let’s take a close look, because this one could be very relevant for packaging printers…
CONTENTS: The complaint | Blatantly copying distinctive elements, but 10 dE00??? || The Trademark | Why is this important | Updates
The document states that it concerns a trademark infringement and a trade dress infringement. I hadn’t heard the term ‘trade dress’ yet, so I checked it. And Wikipedia explains it as follows: “Trade dress is the characteristics of the visual appearance of a product or its packaging that signify the source of the product to consumers.” And it’s an extension of the trademark protection.
The complaint is about multiple brands, seven in total, with Oreo the first and probably best known.
The complaint
Now, what can we find in the complaint? The following are several literal quotes (between quotation marks and in italic), and where necessary, I’ve added comments.
“7. Consumers instantly recognize snacks sold under these popular food brands through their highly distinctive product packaging. “
This highlights the importance of the ‘trade dress’, the distinct visual identity: consumers will immediately ‘know’ which brand it is.
“8. Defendant’s business model involves an emphasis on low-priced private label products that resemble the look and feel of well-known brands. (…)”
“9. (…) objecting to Defendant’s use of confusingly similar packaging “
This is, of course, an important and interesting one: the Aldi package is so similar to the Mondelez Oreo that it confuses consumers. Meaning that consumers might pick the Aldi brand while they wanted the real deal.
“14. The OREO Trade Dress features the following inherently distinctive elements. (…)
- (…)
- A predominantly blue background with a lighter blue halo around the cookie; (…)”
And here we are at the core of this case, at least from my perspective: what does the ‘OREO Trade Dress’ consist of, and especially, what does it tell us about the colors in that trade dress? And guess what: the brand color is blue. And that ‘blue’ background is a distinctive element. Please, hold on to this one! I’ll come back to it later.
“16. (…) The distinctive features included in the OREO Trade Dress serve the purpose of identifying and distinguishing Oreo cookies from the products of other sellers.”
Again, the blue background, which, according to this document, is a ‘distinctive feature’, is how consumers will be able to identify Oreo cookies and distinguish them from products of other sellers.
“20. (…) Defendant is marketing and selling private label packaged cookie sandwiches using packaging that blatantly copies the distinctive and iconic elements of the OREO Trade Dress (the “Infringing Sandwich Cookie Packaging”). The Infringing Sandwich Cookie Packaging is likely to cause confusion among consumers.”
These claims were repeated for every of the seven products.
Blatantly copying distinctive elements, but 10 dE00???
So, the Aldi packaging ‘blatantly copies’ the ‘distinctive’ elements of the Mondelez packaging. Even though the colors are different from the point of view of people from the printing industry, Mondelez does consider them ‘blatant copies’ and states that these colors likely will confuse consumers.
In case you argue that the blues of Oreo and the Aldi copy are quite close (in dE00), consider the Nilla Wafers and Ritz Crackers; in those cases, the colors as shown in the document are quite different.
And, dear packaging printers, this is the part you need to remember when you have yet another discussion with a brand owner demanding a tiny tolerance. The core of this lawsuit is that consumers are confused by the use of a similar design and a ‘similar’ color. And the colors in the document are defined as ‘blue’, ‘yellow’, ‘red’, … Which negates the story that consumers will be confused if a brand color is a few delta E off.
BTW: this document also shows that Mondelez asked for a jury trial, so it will be a group of people – consumers – deciding on this.
And a last quote:
“109. Defendant’s acts have caused and are likely to cause confusion, mistake, or deception in the minds of the public as to affiliation, connection, or association of Mondelēz with Defendant, and as to the origin, sponsorship, or approval by Mondelēz of Defendant’s goods.”
So, Mondelez is very adamant about it: the colors of these Aldi packages are so similar to the real thing that people will mistake them for the real deal. I wonder if their print buyers would agree on this one…
The Trademark
Just to be sure, I also checked which information is in the trademarks about the color. Here’s one of the Oreo trademarks, which mentions in the ‘Color(s) Claimed’ section: “The color(s) blue, white, and black is/are claimed as a feature of the mark.”
Blue. That’s it. That is the brand color of Oreo. Not a Pantone number, not a CIELab value, or any other more precise color definition. Just ‘blue’.
Why is this important?
It’s obviously an important case on trademarks. But it’s also an important case on brand colors and the reproduction of brand colors. You can’t argue on the one hand that a brand color in print should be within a tiny tolerance, like 2 dE00, and on the other hand state that a competing brand, with a brand color that is around 10 dE00 off from the original one, is confusing consumers and thereofre damaging the sales of the real stuff.
These two statements are not compatible. Either minor differences in brand color reproduction are important, as some people claim, and then the Mondelez case is without merit, since consumers will notice and will be able to detect the real deal. Or differences in brand color reproduction, even 10 dE00, do not matter, since consumers see the brand color as a broad color category, e.g., ‘blue’. And in that case, Mondelez will probably be the victor in this lawsuit.
PS: the argument (or statement) that the OREO brand color is ‘blue’ fits with the recent change in their logo, a 10+ dE00 change… But, as I showed in my previous article, I couldn’t find any negative effect of that change. No visible decline in sales (in the US market share even grew), no public complaints… Even though old and new were used jointly, even for the same product, as these two pictures from last week show…
UPDATE 24/06/2025: it’s seems that Aldi recentely lost a similar case in the UK. Here is more!
UPDATE 04/07/2025: An article on CNN contains clearer pictures comparing a few of the packages. And here is an article written by someone specialized in intellectual property, trademarks, … And she says it could take 2 years before we find out who will win this case…
Interesting article. My take is that Aldi shoppers are Aldi shoppers precisely so that they can save money on the almost-just-as-good, but decidedly cheaper, versions of products. The colors do facilitate finding the products they want. If these shoppers really wanted true Oreos and Wheat Thins they most likely wouldn’t be shopping at Aldi. I’m curious if the jury will respond similarly.
Thx Tracy! And I’m also curious to know the outcome of this case…