The past few months have been sweet for trade dress plaintiffs. This summer, the United States District Court for the Eastern District of New York issued a significant decision in Van Leeuwen Ice Cream LLC v. Rebel Creamery LLC, No. 1:21-cv-02356. The court found that Rebel Creamery intentionally copied Van Leeuwen’s distinctive ice cream packaging trade dress and awarded $23.785 million in disgorgement of Rebel’s profits. Just a month later, J.M. Smucker fended off Trader Joe’s partial motion to dismiss Smucker’s federal dilution claim concerning the fame of design marks associated with Smucker’s “Uncrustables” products in J.M. Smucker Company v. Trader Joe’s Company, No. 5:25-cv-02181 (N.D. Ohio). Together, the cases illustrate the markedly different showings required at the pleading and trial stages, while also underscoring the importance of defining the asserted trade dress and developing evidence of distinctiveness, recognition, confusion, and nonfunctionality.

To plead and ultimately prevail on a claim of trade dress infringement under the Lanham Act, a plaintiff generally must establish that its asserted trade dress is non-functional, that it is distinctive, and that the defendant’s product packaging or design creates a likelihood of consumer confusion. For trade dress claims centered on product design – a product’s configuration, not its packaging – the bar is higher as product design can never be inherently distinctive. To adequately plead and win a product design trade dress infringement claim, a plaintiff must establish that the claimed design has acquired distinctiveness through allegations and proof of secondary meaning.

The Taste of Trade Dress Victory: Van Leeuwen
Van Leeuwen Ice Cream began as a single ice cream truck in Brooklyn in 2008. In 2016, Van Leeuwen redesigned its packaging centered on four elements: monochromatic cardboard container packaging with matching lids, predominantly pastel color palettes, black script lettering with an oversized first letter, and an overall minimalist aesthetic. In 2017, Rebel Creamery was founded and later launched a keto-friendly, low-sugar ice cream line featuring strikingly similar pastel-hued monochromatic cartons, black script font, and minimalist presentation. Van Leeuwen filed a lawsuit against Rebel in April 2021. Following a bench trial, the court found Rebel liable for federal trade dress infringement, New York common-law trade dress infringement and unfair competition, and dilution under New York General Business Law § 360-l.

The court reasoned that trade dress protects the overall combination and commercial impression created by a set of design elements, not the individual elements themselves, and confirmed that individually common elements may be protectable as part of a distinctive, source-signifying combination. The court held that Van Leeuwen’s packaging trade dress was inherently distinctive because its monochromatic pastel cartons, black script lettering, oversized initial capital, and minimalist presentation formed an arbitrary combination selected from a broad range of packaging alternatives. The court also relied on unsolicited press coverage as supporting the distinctiveness of the design. Separately, in evaluating actual confusion under the Polaroid factors, the court credited survey evidence reporting a 34.3% net-confusion rate. The court characterized Rebel’s claim of independent creation as “clearly fabricated” and described the probability of coincidence as “infinitesimal,” rejecting Rebel’s “good faith remote user” defense.

The Van Leeuwen decision is an important reminder that trade dress can be more than the sum of its parts. An overall combination of otherwise common packaging elements may constitute protectable trade dress when the claimed combination is identified with sufficient precision, is distinctive and nonfunctional, and its use by the defendant is likely to cause consumer confusion. Rebel filed a notice of appeal in August 2026. Because the district court’s judgment remains subject to appellate review, brands using minimalist designs should continue to monitor the case as it proceeds through the appellate process.

Uncrustable, Not Undiluted (For Now)
In October 2025, J.M. Smucker Company sued Trader Joe’s Company in J.M. Smucker Company v. Trader Joe’s Company, No. 5:25-cv-02181 (N.D. Ohio), alleging that Trader Joe’s “Crustless Peanut Butter & Strawberry Jam Sandwiches” infringe and dilute the trademarks and trade dress of Smucker’s “Uncrustables” brand. Smucker asserts registered and unregistered trademark and trade dress rights in several product-configuration and graphic design features associated with Uncrustables, including the round, crustless sandwich shape with peripheral crimping and depictions of the sandwich whole and with a bite removed. Trader Joe’s moved to dismiss in part, arguing in its motion papers that its sandwiches are not round, but “squircles” (squares with rounded corners) and that the crimping is functional because it seals the edges, keeping the peanut butter and jelly inside the sandwich. On August 28, 2026, the court denied Trader Joe’s partial motion to dismiss Smucker’s federal dilution claim. The court held that Smucker had plausibly alleged that its asserted Uncrustables design marks are famous, based on allegations concerning the duration and extent of advertising, nationwide sales, registration, and consumer recognition. The court did not decide whether the sandwich configuration is functional, protectable as trade dress, infringed, or likely to cause confusion. The case will now proceed to discovery, and key questions in the case will now be litigated on the merits, including whether the round, crimped shape is, in fact, functional or source-signifying, and whether consumers are likely to be confused.

From Pleading to Proof and Beyond
The Van Leeuwen and Smucker cases illustrate two different stages of trade dress litigation: the former was resolved after a bench trial, while the latter survived a partial motion to dismiss. At the pleading stage, a trade dress plaintiff needs to only allege facts sufficient to state a plausible claim for relief. The court accepts well-pleaded factual allegations as true, but legal conclusions and formulaic recitations of the elements are insufficient. Trade dress plaintiffs should therefore anticipate threshold questions of functionality, distinctiveness, and likelihood of confusion and plead facts sufficient to support each applicable element. Van Leeuwen illustrates the types of evidence that may be persuasive at trial, including consumer surveys, evidence of marketplace confusion, documentation concerning the development and reception of the claimed trade dress, and evidence bearing on intentional copying. The 34.3% net-confusion rate reported in Van Leeuwen’s survey was persuasive, and together with the other evidence, it contributed to the court’s conclusion that Rebel intentionally infringed and diluted Van Leeuwen’s trade dress. In a separate remedies analysis, the court awarded $23.785 million of Rebel’s profits after applying a 33% equitable reduction.

With an appeal pending in Van Leeuwen, and with Trader Joe’s Answer filed on September 16, 2026, Baker Botts will monitor further developments as these trade dress food fights continue into the fall.

To read the cases, see https://www.courtlistener.com/docket/59862547/van-leeuwen-ice-cream-llc-v-rebel-creamery-llc/ and https://www.courtlistener.com/docket/71631587/jm-smucker-company-v-trader-joes-company/

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