Is there really something new to add on the topic of private labels and confusion? After all, I’ve explored various aspects of this phenomenon, through:
- The Hellman’s mayonnaise post;
- The Head & Shoulders post;
- The Zyrtec post;
Same thing, too, in the Reese’s Peanut Butter Cups quasi-post (you’ll see what I mean), which didn’t involve private labels as such but rather, in a dilution context, the even broader issue as in the mayo post: The concept of “official mayonnaise colors” or “official peanut butter cup” — or, in that case, “official ‘Reese’s'” colors, the bittersweet reward collected by the category originator (Reese’s) or overwhelmingly dominant brand (Hellman’s).
You get my point.
What, then, is my point now? Well, look at the picture I took today at my friendly neighborhood Stop and Shop. What do you see? Three things, detailed below:
I’ve got your market forces — holding LIKELIHOOD OF CONFUSION as a constant ever so briefly — right here.
What do you say, consumer? Science tells us the main ingredient that’s in the three packages is identical: stevia, a sweetener that is not sugar, not artificial, but not necessarily “natural,” either. Truvia, however, tells us that’s not quite the whole story.
At left, for $6.79, is that most comforting, comfortable version of stevia-based sweetener: “Original” Truvia, in the familiar package: A light green (“nature-like”) hockey-puck-shaped flip-top lid screwed onto what is billed as a “spoonable,” wide-mouthed circular opening, gently tapering to squat, rounded white square plastic jar that looks sort of like a giant plastic inkwell; the tapered section itself set off with three rings of progressively lighter shades of green until the third one matches the hocky-puck lid, under which the is presented the logo, seen at left: A dash of green leaf atop a red strawberry, whose bottom half is coated in, presumably, the contents of the package, under which the name of the product — all small caps, nothing threatening here — “truvia,” with a little, natural-like leaf of a green tree — or, perhaps, of a strawberry bush? — standing in for the dot of the “i” in “truvia.”
These details, as you will see, may matter. Because consider the next entrant on the supermarket shelf: Zing sweetener. Check out this logo, or, rather, this detail on the package — you can go to the website I just linked to and decide what, exactly, constitutes the logo:
I can’t say the two logos are likely to be confused, really, can you? But I can’t really say, all things considered, that they aren’t. Where would you go to look up that kind of thing? Oh yeah. Anyway, I don’t know. There’s only so much of this I can do for free. I’m just saying. Confusion… dilution. I mean, competitors? Yes. All those damned shades of green? Yup. Little cute leaves?
STRAWBERRY? YES. Come on, now, people! Stevia is natural! It comes from a plant, yup. But it doesn’t come from no strawberry! It comes from a DAISY!
These are daisies:
They don’t look anything like strawberries, do they? So we know it’s not daisies what’s on the Zing package.
So, Zing: Why on earth would you choose a strawberry for the packaging of your stevia-based, lower-priced competition for Truvia? Could the reason be that Truvia also has a strawberry on its package, which it uses ever so pleasingly to offset its lower-case green product name presented in a whole bunch of different tones of green (yes, I know they made a “z” look a squinch taller by aligning it with the dot in the “i,” but would you want to die on that hill? it’s the same height as the “n” and the “g,” in fact!) on a soft white background on rounded-edge squat-square wide-mouthed plastic dispenser? Huh? Huh?
Well, what if you also “frost” the bottom of your strawberry with a little bit of your white stevia sweetener just as Truvia does?
Which is exACTly what you DID, isn’t it, Zing?!
Zing!
Zing, of course, has gone as far along in copying Truvia’s product packaging as they possibly can. And, frankly, the also-ran here — Stop and Shop’s bargain-basement, “just plain old stevia in a real ugly jug of a thing,” isn’t hardly worth mentioning after all this fol-de-rol.
I take that back. Frankly, the Stop and Shop container is a hell of a lot more eye-pleasing than Zing’s, which presumably came so close to the line in the color and element components (frosted strawberry?! please!) that the boys in legal told them they had to wrap the package in a what looks kind of like, I don’t know, a breakfast-nook brick. The supermarket generic is, on the other hand, a respectful knockoff: A solid two bucks less; ; a bow to the “official colors” of stevia — but no frosted strawberries or other real branding whatsoever. It is what it is. Maybe you can figure it out by reading this article here.
And what is it we’re saying here? This: For some reason, under the cover of private branding, acts of goodwill piracy of the product-packaging kind take place on the high seas of the supermarket aisles every day. Private branding is the modern-day version of privateering, far more genteel than fake LVMH bags and tin Rolexes but all the same offending every sort of test for trademark infringement and dilution which, in every other context, would in no time lead to the drawing and quartering of corporate defendants and the gay festooning of grocery aisles with the heads of vanquished in-house IP counsel.
But private brands? Nooooo. Copy all the vaguely-dusted strawberries surrounded by green leaves you want. Our consumers are smart bargain-hunters! Their “initial interest” is harmless fun!
That leads to one of two possible conclusions:
- The world — defined as the courts, industry, INTA, The ABA Blawg 100, whatever — has simply come to terms with this sad fact for trademark owners. We as a civilization must acknowledge that there’s just a special place in heaven for private brands and what we would otherwise call infringement (or dilution) because of the utility they provide to consumers, who have learned how to spot this business going on in the supermarket and are just plain not likely to be confused in this special category of modern life. Or… or…..
- We should perhaps reconsider what we’ve been calling trademark infringement (and dilution) in the rest of life and commerce and ask ourselves if, really, consumers get so stupid after all once they shove that cart in the corral. Even if we’re mainly concerned with assigning rent, still and all our test is still a LIKELIHOOD OF CONFUSION; whether or not we should, in fact, be shmearing out quite so much of that rent quite the way we do, and especially quite so preliminarily, whether or not it happens not to be a “private branding” case should not have any bearing on whether there is infringement under the ancient and venerable tests for confusion or not.
There are other questions, of course. See what I did there? I threw in the Stop and Shop offering, but then I kind of thew it out. In fact, Zing isn’t a private brand at all — it’s merely a competitor. Why does it get any kind of pass at all?
Look, I don’t know what Truvia’s calculus is. But my guess is that Truvia’s only crime here is, essentially, being a category creator, i.e., having established the “official stevia-based sweetener colors,” and that it’s people are seeing the same supermarket shelf I am. Evidently, this includes not only gradations of green leaves but, yes, the partially-frosted strawberry. “Official” indeed!
Well, as sweet as I am, calorie-free is one thing. Free legal is something else. I’m not saying either way… Good night, sugar!
