With summer just around the corner (fingers crossed!), it looks like Unilever wants to freeze out any customer confusion that may arise at ice cream trucks around the country. On Monday, the consumer goods giant sued Wells Enterprises in New York Federal District Court claiming that Wells’s newly-designed Bomb Pops packaging “mimics and imitates” Unilever’s Firecracker Popsicle packaging, resulting in a claim of trade dress infringement. Unilever also alleged unfair competition and deceptive trade practices.
It should be noted, to start, that the frozen treats themselves are more or less identical: Bomb Pops were originally created in 1955 and, since 1991, have been sold by Wells’s Blue Bunny brand. Unilever’s Popsicle-branded iteration followed shortly after, and now both red white and blue pops are fondly familiar national favorites sold from ice cream trucks and grocers across the country.
But it’s not the frozen treats themselves that are at issue here; Unilever has taken issue with Wells’s redesigned packaging in particular. Unilever argues that the similarities between the new packaging for Bomb Pops and the existing packaging for Firecrackers are “blatant and outrageous.” For example, Unilever highlights that both boxes depict three frozen treats arranged in the same configuration. Next, Wells’s packaging added the phrase “The Original” in white letters against a red and blue oval that, according to the complaint, “was clearly designed to emulate plaintiff’s Popsicle logo.” In addition, Wells no longer displays its BLUE BUNNY mark on its boxes, which previously offered additional distinction between Popsicle and Blue Bunny packaging.
Since the likelihood of confusion analysis is central to a claim of trade dress infringement, it will be important to focus on both the similarities (some of which, as described above, were highligted by Unilever) and differences of the packaging to determine how the case will play out.
Granted, both marks have considerable strength in the marketplace, but this factor cuts in Wells’s favor. Both BOMB POPS and FIRECRACKERS are strong word marks that appear prominently on the packaging, so even if the word marks are both printed in red font, shadowed in white and blue, and with blue stars featured, the prominence of the word marks alone may be all a customer needs to dispel any confusion. Additionally, there are some visual dissimilarities between the packaging. The Bomb Pops box fades from blue to yellow with faint beams highlighting the background, and features frozen treats with blunt circular tops, whereas the Firecracker packaging is solid yellow with prominent explosions and stars in the background, featuring frozen treats with pointed rocket-shaped ends.
Ultimately, though, and assuming that Unilever can not show bad intent on Wells’s behalf (i.e., that Wells intentonally sought to mimic Unilever’s packaging), the biggest question mark here likely falls on the sophistication of the average frozen treat consumer. Do most consumers know the difference between a Bomb Pop and a Firecracker? The New York Post reports that a cease and desist letter sent by Unilever’s counsel to Wells in February asserted that “more than 60 percent of respondents believed that Bomb Pops are made by the same company that makes Popsicle products.” If that survey can be substantiated during discovery, it will be strong evidence to support Unilever’s trade dress infringement claim.
In its complaint, Unilever is seeking unspecified damages and an injunction for a recall and redesign of the newly-released Bomb Pops packaging. Trending Trademarks will keep you updated as this frosty faceoff proceeds.
The case is Conopco Inc. v. Wells Enterprises Inc., case number 1:14-cv-02223-NRB, in the U.S. District Court for the Southern District of New York.