Company behind “Four Loko” drink files trade dress lawsuit against competitor

Earlier this year, the company behind the “Four Loko” flavored malt beverage product sued a competitor for trade dress infringement. In its Complaint the Plaintiff alleges that the Defendant’s “J Series” flavored malt beverage product uses packaging that is confusingly similar to that of the packaging used on Plaintiff’s “Four Loko” product. The Plaintiff alleges that the parties are direct competitors in the alcohol beverages industry and serve similar commercial markets and consumer bases. The Plaintiff is seeking injunctive relief and monetary damages on its claims for trade dress infringement, false designation of origin, unfair competition, and violation of the Illinois Deceptive Trade Practices Act.

Trade dress is a related concept to trademarks. Trade dress protects the overall distinctive features and appearances of certain products. This would include the appearance or packaging of a product, as well as product design and shape. Common trade dress examples include the overall appearance of the exterior or interior of a restaurant or the design of a glass bottle (i.e., Kahlua bottle). Other trade dress found to be protectable includes the overall appearance of certain airplanes and car designs. Trade dress, as in trademarks, must act as an identifier of source and be considered distinctive to be protectable and not just mere ornamentation.

Trade dress is governed in general by the same body of law as trademarks and acts to prevent confusion in the marketplace between similarly looking products. For example, the name “Coca-Cola®” can be trademarked, while the shape of a classic glass Coke bottle is protectable as trade dress. In addition, the design of the Abercrombie and Fitch catalogue as well as the features of its in-store presentation of its goods (i.e., signage and display setups), constitute protectable trade dress. However, packaging lime flavored soda in green cans is so common in the industry that it is not distinctive and cannot be protected. Also, an illustration of a sun on a bottle of suntan lotion or an illustration of a shining car on a bottle of wax would be considered merely descriptive and cannot be protected.

In its Complaint Plaintiff alleges that it has protectable trade dress in the design elements of its packaging, namely “multi-toned coloring, a camouflage pattern, a black paint splatter elements, water beads, and large vertically-oriented block lettering,” of which Defendant has allegedly copied without authorization. The Plaintiff also alleges that “Four Loko’s ‘eye catching packaging’” is a “significant driver of sales.” In order to prevail on its trade dress claim, the Plaintiff will need to show that the claimed trade dress is protectable and that Defendant’s use of a similar trade dress is likely to cause consumer confusion. The Defendant has filed a Motion to Dismiss the Complaint alleging that Plaintiff fails to state a cause of action mainly because the Complaint fails to allege that Defendant has actually used Plaintiff’s alleged trade dress in commerce, since the Defendant “has not sold a single Joose J Series product to date.” The Defendant also claims that no likelihood of consumer confusion exists.

Please contact our office if you have any questions regarding the information in this article.

Daniel Devine, Esq.
Santucci Priore, P.L.

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