I’ve always been fascinated* with the concept of the lookalike packaging of “house brands” or private labels, which are usually priced a good one-third cheaper than the most popular version of the same product sitting right next to the house-brand version on the shelf. Sometimes they’re more or less the same thing, as in the case of over-the-counter pharmaceuticals. Sometimes, though, there are serious quality and, in the case of food, taste differences between the real thing and the store brand in the similar, clearly allusive packaging.
And I’m not the only one interested in this topic. Yet people who are little more than strangers have asked us about whether or not copycat packing like this is “allowed.” (Why strangers? It’s a kind of magnetism I have, the way some people are just always being stopped by people who need directions. But I digress.)
Indeed, I blogged about a development in this area earlier this year, in which the Third Circuit Court of Appeals said, well, no, that kind of copying is not really allowed, and if you push it we just might have to pull this car over and come back there and then you will most assuredly be sorry.
So unwinding after a hard day of what I do here, I followed a link to James Lileks’s blog from Instapundit, and couldn’t but be struck — given my … unusual … interest in this topic — by this picture, and James’s unusual and, as ever, brilliant presentation (emphasis added) of the presentation:†
As for the contents of the box: it’s a selection of find Roundy’s house-brand merchandise. There are some Diced Peaches in light syrup, Extra Butter Microwave Popcorn, Deluxe Shells & Cheddar Dinner, Grape Jelly, a big bottle of Mayo in the approved colors of Mayonnaise packaging, laid down so many years ago by our forefathers:
Yeah! If your forefathers are named Hellman!
See, I’m also unusually interested in mayonnaise. Especially Hellman’s — “Bring out the Hellman’s and Bring Out the Best.” It’s “The Best”!
Now, I have, as the passion of youth has cooled, learned to compromise on many things I once thought unthinkable. I do not any more insist on Heinz ketchup any more, for example, perhaps because I’ve come to appreciate actual food and deemphasize the role of condiments in my diet. Considerably. But there is only one mayonnaise, as far as I can see. And I can’t see over the Rockies from where I’m sitting — I can barely see New Jersey with that ugly hotel blocking the view — so for me it’s only Hellman’s.
And this — “Roundy’s”? ROUNDY’S?! In a drop – dead – likely – to – be – confused yellow label with radiating white lines superimposed by a blue oval containing the product name in capital Roman letters (no, the Roundy’s serifs do not help!) across the widest portion of the oval — Roundy’s?!
Nothing is sacred! And, in fact, Lileks’s remarks — “a big bottle of Mayo in the approved colors of Mayonnaise packaging, laid down so many years ago by our forefathers” — epitomize the process of genericization. These are surely not the colors of Hellman’s any more, i.e., the Hellman’s trade dress, if they are “the color of mayonnaise packaging.”
In fact, by all indications it’s too late for Hellman’s, which has already endured its branding struggles. I can’t find anything that suggests that the owner of Hellman’s, CPC International, has asserted or does assert that what seemed so obviously to me to be the Hellman’s trade dress does have secondary meaning any more. There was once a dustup over the “Blue Ribbon” device in the 1932 case of Richard Hellman, Inc. v. Oakford & Fahnestock, 19 C.C.P.A. 816; 54 F.2d 423, 1932 CCPA LEXIS 34 (C.C.P.A. 1932), but the trade dress — the recognizable symbol of The Best?
Unless someone can point me in a different direction on this, I have to conclude that the once-proud uniform of The Best has indeed been gathered up unto its fathers — our own condiment forefathers, as it were, as Lileks suggests. From the perspective of a guy who pushes his shopping cart up and down the aisles analyzing trade dress issues, it’s hard to take, but probably no harder than even The Best is on the arteries. But I’ll still squint hard and look for that blue ribbon that tells us, yes, this — not the lookalike that costs half as much — really is The Best. Just as our fathers did before us.
* Yes, really, always. That’s how you grow up to be LIKELIHOOD OF CONFUSION®. See, there is a special role for every single person! You can be unique too!
† I would ask James for permission to poach his pic, but he doesn’t answer emails. From me, anyway. He’s still really funny and you should also buy his (NSFW) books but keep them away from the kids and burn them when you’re done laughing and laughing and laughing. Besides, it’s fair use. (Even if it’s not that kind.)
‡ Yes, I know. “Hellmann’s® is known as Best Foods® west of the Rockies.” Deserves its own post. (Query: Is this why if you “Bring out the Hellman’s you bring out the Best“? Is that the joke? I think my first-ever friend from California once tipped me off to this during freshman week in college, but now I realize — does this not raise serious existential questions about secondary meaning that will keep me up all night? Or is it just all that grease repeating on me?)