A recent decision from the Eastern District of New York underscores that product packaging can be more than marketing. It can be protectable intellectual property, and copying it can carry substantial consequences. In Van Leeuwen Ice Cream LLC v. Rebel Creamery LLC, Judge Komitee of the Eastern District of New York found that Rebel Creamery intentionally copied Van Leeuwen’s distinctive ice cream packaging trade dress, awarded nearly $24 million in disgorged profits, and entered a permanent injunction requiring Rebel to redesign its products.
The opinion is noteworthy not only for the size of the monetary award, but also for its detailed treatment of how a plaintiff can define and prove protectable rights in unregistered product-packaging trade dress.
Packaging at Issue and Van Leeuwen’s Trade Dress Claim
Van Leeuwen’s ice cream pints originated from a 2016 redesign developed by Pentagram, a well-known design agency. Van Leeuwen asserted its redesigned pints featured four key trade dress elements:
1. Cardboard monochromatic pints with matching monochromatic lids;
2. Use of a primarily pastel color palette and / or pastel tinted hues;
3. Black script typeface lettering with an exaggerated capital letter appearing across the front of the ice cream pint with additional descriptive writing in black lettering; and
4. An overall minimalistic design aesthetic.
Van Leeuwen’s redesign proved to be a central ingredient in Van Leeuwen’s branding strategy. At trial, Van Leeuwen showed it experienced dramatic sales growth, expanded distribution nationally, and received substantial unsolicited attention from design publications and industry observers. The court found that Van Leeuwen provided evidence at trial that the packaging became a significant component of the company’s brand identity.
Founded by Austin and Courtney Archibald, Rebel Creamery entered the keto ice cream market in 2018. Its packaging featured pastel-colored pints, monochromatic lids, black cursive lettering, and a similarly minimalist appearance. Although Rebel included keto-related information on the containers, the court found that the overall commercial impression closely mirrored Van Leeuwen’s packaging.
Sufficiency of Trade Dress, Distinctiveness, and Functionality
As a threshold matter, Judge Komitee held that the trade dress elements were sufficiently objective and specific when viewed collectively, emphasizing that trade dress articulation is analyzed holistically rather than by examining isolated elements in a vacuum.
The court also concluded that Van Leeuwen’s trade dress was arbitrary, and therefore inherently distinctive. This finding was significant because inherent distinctiveness relieves a plaintiff from proving secondary meaning. The court noted that Van Leeuwen selected its packaging elements from a virtually limitless universe of available design choices. The monochromatic cardboard containers, pastel palette, black script lettering, and minimalist layout were not dictated by industry practice or functionality. Rather, they reflected arbitrary branding decisions. The court again relied upon evidence showing that the redesign attracted widespread attention from design publications and industry commentators. That organic recognition reinforced the conclusion that consumers and industry participants perceived the packaging as distinctive.
As trade dress law protects only non-functional features, Rebel argued that the use of pastel colors and minimalist design served functional purposes. Rebel’s functionality arguments ultimately melted under scrutiny. The court found that many, if not most, competing ice cream manufacturers communicate their names without minimalist presentation, for example by including photographs of vanilla beans for vanilla, or mint leaves for mint chocolate chip. It also found that the use of pastels on packaging are not inherently functional, citing trial evidence that ice cream manufacturers correlate color to flavor with and without using pastel shades.
Brain Freeze in the Freezer Aisle: Likelihood of Confusion
Applying the Second Circuit’s Polaroid factors, the court found that the likelihood-of-confusion analysis strongly favored Van Leeuwen. The analysis of some key factors is summarized below:
Strength of Trade Dress: Van Leeuwen’s trade dress was strong because it was arbitrary, had been used consistently, received unsolicited media attention, and coincided with substantial sales growth.
Similarity: Rebel’s packaging created a strikingly similar overall impression. The court found that Rebel used each of Van Leeuwen’s claimed trade dress elements and also matched additional features, including the placement of social media information and the shift from script lettering to block text.
Competitive Proximity: The parties’ products competed in the same grocery-store ice cream market, appealed to overlapping customers, and were often displayed near one another.
Actual Confusion: Van Leeuwen presented evidence of consumer confusion, grocery-store employee confusion, and survey evidence showing a 34.3% net confusion rate.
Bad Faith: The court found that Rebel’s founders’ testimony about the development of the packaging was “clearly fabricated,” citing the number of overlapping design choices, the absence of any saved design iterations, and inconsistencies in testimony.
Customer Sophistication: The court treated ice cream as a low-cost impulse purchase, making confusion more likely in the freezer aisle.
The court also rejected Rebel’s “good faith remote user” defense. Rebel first sold the accused packaging in Los Angeles, where Van Leeuwen was already sold, and the court separately found that Rebel failed to establish good faith.
The Cherry on Top: Injunction and a $23.8 Million Award
The court entered a permanent injunction barring Rebel from selling products bearing trade dress likely to be confused with Van Leeuwen’s packaging and requiring Rebel to redesign its packaging to convey a substantially different commercial impression.
The court also awarded disgorgement of Rebel’s profits. After analyzing revenue, expenses, and equitable considerations, the court concluded that Rebel earned approximately $35.5 million in profits from the accused products. It then reduced the award by 33% to account for market factors unrelated to the infringing packaging, including consumer demand driven by the keto diet trend. The final award totaled $23,785,000.
The decision underscores that substantial monetary exposure remains possible in trade dress cases, particularly where a court finds deliberate copying.
Key Takeaways for Brand Owners
For companies developing consumer packaging, the message is straightforward: product design and packaging are branding, and branding can be protectable intellectual property. In the end, companies that borrow too closely from a competitor’s visual identity may find that imitation is not the sweetest form of flattery. It may lead not only to a mandatory redesign, but also to a multimillion-dollar judgment.
Beyond the ice cream aisle, the decision may resonate across the consumer packaged goods industry. Private-label and “look-alike” packaging disputes continue to draw attention, including recent litigation involving Mondelez and Aldiover store-brand packaging.1 Van Leeuwen reinforces that courts may look beyond isolated design elements and focus on the overall commercial impression created by the package. For brand owners, the decision highlights the value of investing in distinctive, consistent packaging. For competitors and private-label manufacturers, it is a cautionary reminder that packaging “inspiration” can become costly when the resulting design creates a likelihood of confusion.
About the Authors
Marc Lorelli is a shareholder and co-chair of Brooks Kushman’s Intellectual Property Litigation practice, representing clients in high-stakes disputes involving patents, trademarks, trade secrets, and other IP assets. He helps companies protect innovation, manage risk, and resolve complex conflicts through litigation, negotiation, and strategic enforcement. Marc’s work supports clients across technology-focused industries, including automotive and mobility, industrial manufacturing, and consumer-facing markets. He also brings litigation insight to matters involving trademark enforcement, trade secrets, and broader IP portfolio strategy.
Francesca Cusumano-Gibson is an associate whose practice focuses on Intellectual Property Litigation and Patent Prosecution, helping clients protect and enforce valuable intellectual property assets. She advises businesses on patent enforcement strategies and intellectual property disputes involving complex technologies, while also supporting patent portfolio development and protection efforts. Francesca’s technical background in chemistry and experience across industrial technologies make her particularly valuable to clients in the Automotive and Mobility Brands & Technology, Battery Technology, and Chemistry & Chemical Sciences industries. She works closely with clients to develop practical, business-focused intellectual property strategies that align with their innovation and growth objectives.
Yasmeen Moradshahi is an associate whose practice focuses on Patent Prosecution and Intellectual Property Litigation, with an emphasis on electrical and mechanical technologies. She combines hands-on engineering experience with intellectual property counsel to help clients protect and enforce innovations in complex technical fields. Yasmeen’s background is particularly valuable for clients in the Automotive and Mobility Brands & Technology and Electrical & Computer Technology industries. She works with innovators to develop practical intellectual property strategies aligned with long-term business goals.
About Brooks Kushman P.C.
Founded in 1983, Brooks Kushman P.C. has built a national reputation as a premier intellectual property and technology law firm. We accomplish this with the understanding that the most effective IP solutions come from putting great minds together – our clients and our own. With offices across the country, we forge strong relationships with corporations, small to medium-sized businesses, and leading universities across the country.
Brooks Kushman counts a number of Fortune 100 Corporations across a variety of industries among its clients. Our attorneys have a deep understanding and broad range of experience in a variety of industries and technologies, including automotive, AI & data, automation, consumer electronics, manufacturing, medical device, computer technology, aerospace, chemicals, biotechnology, retail, food & beverage, green technology, fintech, and more. We are also recognized by leading legal publications and rankings, including, Best Lawyers, Law360, Intellectual Asset Management, Managing Intellectual Property, and World Trademark Review. For more information, please visit www.BrooksKushman.com.
