Ornua Foods North America v Abbey Specialty Foods LLC, 23-cv-1212 (JG:C) (SDNY September 30, 2024)
Straightforward likelihood of confusion analysis of butter trade dress from the Southern District of New York:
Plaintiff Kerrygold argues:
“Both packages use the same silver foil background and uncluttered design on a package with the same size, shape, profile, and weight . . . use similar centered text with stylized arched wording above one image element with trademark logos a similar Celtic-style font and a similar green color. ” Also, both trade dresses use similar wording and ‘indicate the butter product is made from grass fed cows.'”
Also, defendant was aware of Kerrygold (it is a direct competitor.
And these are other butter packages:
However – the Court was not buttered up. No likelihood of confusion:
The overall impressions of the Kerrygold and Tipperary trade dresses are unlikely to cause confusion among reasonably prudent purchasers. First, each trade dress prominently displays their respective brand name. The name “Kerrygold” assumes a significant portion of the Kerrygold Trade Dress and is placed in the center of the package. “Kerrygold” appears in a white font sitting in front of a shamrock green quadrangle. The contrast between the white font and green shading further accentuates and draws attention to the brand name. Likewise, the name “Tipperary” occupies a large portion of the Abbey Trade Dress. In fact, “Tipperary” appears in the largest font of any text on the package.. . .
Next, although both trade dresses utilize a Celtic-style font, each font is evidently distinct. The font on the Kerrygold Trade Dress is a clean, sans-serif font, whereas Abbey’s package uses a font with long serifs, providing a more antique and anachronistic look. Additionally, as stated above, the name “Kerrygold” is displayed in a white font with no border while “Tipperary” appears in gradating shades of green with a white border. “Tipperary” is also slightly arched while “Kerrygold” has no curve.
Third, the two packages also contain different phrases and otherwise arrange any similar phrases in different places. For instance, the top of the Tipperary package states, “IMPORTED FROM IRELAND.” No such statement appears on the Kerrygold Trade Dress. At the top of the Kerrygold package is a note that the butter contains “MILK FROM IRISH GRASS-FED COWS” accompanied by an ovular gold seal indicating the same. Abbey’s Trade Dress lacks any seal and indicates at the bottom of the package that its butter is “MADE WITH MILK FROM GRASS-FED COWS,” without noting the national origin of those cows. Furthermore, the focal point of each trade dress further dispels any possibility of confusion.