• Procter & Gamble Settles One Trade Dress Suit; Brings Another
  • March 7, 2006
  • Law Firm: Reed Smith LLP - Pittsburgh Office
  • In indications that Procter & Gamble is aggressively moving to protect the trade dress of its branded products, the company recently settled a major suit with one company, obtaining an agreement to have objectionable packaging on a number of products changed, and now has filed a second suit against another company.

    In a joint press release, Cincinnati, Ohio-based Procter & Gamble and Temple, Texas-based McLane Co. announced Feb. 14 that they had reached settlement in a suit brought by P&G alleging that McLane had violated the trade dress and engaged in unfair competition with regard to four P&G products.

    The suit accused McLane of distributing paper towels called "Towels" that copied P&G's Bounty packaging; toilet paper called Soft N Plush in packaging too close to Charmin; and over-the-counter cold medicines called DayTime and NightTime Liquid Caps that looked like Vicks' NyQuil and DayQuil products.

    While McLane, which is owned by Warren Buffett's Berkshire Hathaway Inc., denied the allegations, the company agreed to immediately redesign the packaging of the products, and pull some of the products from the shelves. McLane, one of the country's largest distributors of consumer goods to mass merchandisers, convenience stores, restaurants, movie theatres and other businesses, had a particularly strong incentive to settle the suit.

    "[We] value our longstanding relationship with P&G, America's largest consumer goods company and one of our largest suppliers," said Bill Fendrick, Vice President of Merchandising for McLane's Grocery Distribution division in the joint statement.

    Rinse and Repeat

    The day after announcing its settlement with McLane, P&G issued a press release announcing it had filed suit against Vi-Jon Industries in the U.S. District Court for the Southern District of New York, alleging that Vi-Jon infringed and diluted the unique trade dress of Crest Pro-Health oral rinse.

    In its suit, P&G claims that Vi-Jon's packaging of its mouthwash product mimics many aspects of P&G's packaging, including the latter's distinctive "faceted diamond" bottle shape, the precise shade of blue mouthwash rinse, and the shape, metallic finish and general color scheme of the label.

    P&G also alleged in its suit that Vi-Jon engaged in false advertising for claiming on its label that its product is comparable to P&G's Crest Pro-Health, and that Vi-Jon's product is effective in killing germs that cause plaque and gingivitis. P&G claims its testing showed that Vi-Jon's product is not comparable to Crest Pro-Health and is not effective in reducing plaque "to a meaningful degree."

    A Vi-Jon spokesperson declined to comment publicly regarding the suit. The St. Louis-based company's Web site states that it uses independent laboratories to test its products against national brands.

    Why This Matters: Companies that invest in distinctive trade dress and brand value police their products to prevent competitors from free-riding on the goodwill they've established in the marketplace. The latest actions by P&G show that active policing of alleged trade dress violations is alive and well, and serves as a clear message to competitors who tread too closely to the look and feel of competitive packaging.