What an Ice Cream Packaging Case Teaches About Proving Trade Dress Infringement

DEREK FAHEY, ESQ.

A company’s brand identity may extend beyond its name or logo. In some cases, the overall appearance or “look and feel” of a product or its packaging, known as “trade dress”, can function as a trademark and receive protection under federal law.

A recent decision involving two ice cream companies illustrates both the value of trade dress and the evidence needed to enforce it. In Van Leeuwen Ice Cream LLC v. Rebel Creamery LLC, No. 21-CV-2356 (E.D.N.Y. July 16, 2026), the court found that Rebel Creamery intentionally infringed Van Leeuwen’s ice cream-pint trade dress. The court ordered Rebel to redesign its packaging and awarded Van Leeuwen approximately $23.8 million of Rebel’s profits.

The decision provides several practical lessons for business owners and attorneys evaluating a potential packaging-infringement claim.

The Packaging at Issue

Van Leeuwen did not claim ownership of pastel colors, cursive lettering, or minimalist packaging individually. Instead, it defined its trade dress as the combination of four features:

• Monochromatic cardboard pints with matching lids;
• A primarily pastel color palette;
• Black script lettering with an exaggerated initial capital letter and additional descriptive text in black; and
• An overall minimalist design.

Rebel used its own REBEL name, but its packaging incorporated the same overall combination: pastel monochromatic containers, matching lids, black cursive lettering with a pronounced initial letter, block lettering for flavor names, and substantial negative space.

The case therefore did not turn on whether the companies used the same brand name. It turned on whether Rebel’s packaging created a confusingly similar overall commercial impression.

Lesson One: Define the Trade Dress Precisely

A trade dress plaintiff must identify the features it claims with sufficient specificity. A company generally cannot claim an undefined “look,” “style,” or “aesthetic” without identifying objective elements that distinguish its presentation.

Van Leeuwen likely succeeded because it reduced its claimed appearance to four identifiable features. Although terms such as “pastel” and “minimalist” contain some subjectivity, the court found that they became sufficiently definite when considered together with the packaging material, monochromatic design, lettering, and use of negative space.

The practical lesson is that a trade dress claim should be defined before litigation begins. The company should be able to explain:

• Which features are consistently used;
• Which combination of features identifies the company;
• When the combination was first used;
• Which products use that combination; and
• How the accused packaging reproduces the same overall impression.

Claiming every attractive aspect of a package may make the asserted trade dress appear vague or overbroad. A focused definition is usually more persuasive.

Lesson Two: Consistent Branding Creates Enforceable Rights

Van Leeuwen consistently used the asserted trade dress across its classic dairy product line. That consistency helped establish that the appearance functioned as a source identifier rather than merely decorative packaging.

Businesses should therefore treat consistency as a legal asset. Frequent changes in fonts, colors, package layouts, or logo placement may weaken the argument that consumers associate a particular appearance with one source.

Companies should also retain dated examples of packaging, advertisements, product photographs, design guides, website captures, and retailer displays. These materials can establish the duration, scope, and consistency of the claimed trade dress.

Lesson Three: Preserve the Packaging’s Development History

The evidence concerning Rebel’s design process became particularly damaging. Rebel’s founders testified that they had not seen Van Leeuwen’s packaging before developing their own. However, Rebel produced no preliminary sketches, mockups, drafts, or other documents showing how its design developed.

The court found the complete absence of intermediate design materials suspicious, particularly because packaging design is ordinarily iterative. The court also found it implausible that numerous similar features—including the colors, font style, oversized initial letter, text placement, negative space, and location of social-media information—had converged by accident.

The lesson applies to both plaintiffs and defendants. Businesses should preserve:

• Preliminary sketches and design iterations;
• Communications with designers and marketing agencies;
• Competitive research;
• Brand-guideline documents;
• Packaging approval records;
• Consumer-testing materials; and
• The reasons particular design elements were selected.

For a defendant, these records may demonstrate independent development. Their absence can allow a court to infer copying or bad faith.

Lesson Four: Prove Marketplace Conditions, Not Just Visual Similarity

The court did not examine the packages in isolation. It considered how consumers encountered the products in actual grocery stores.

Van Leeuwen introduced photographs showing that the products were frequently placed together or intermingled in retail freezers. Evidence also showed overlap in customers, sales channels, advertising, and retailers. Rebel’s own commissioned market study identified premium ice cream brands as part of its competitive set and reported that its packaging resembled premium brands.

This evidence was important because likelihood of confusion depends on marketplace context. A persuasive trade dress case should include:

• Side-by-side photographs;
• Images of the products as displayed in stores;
• Evidence of shelf placement;
• Retailer communications;
• Online search results and product listings;
• Evidence concerning overlapping customers and sales channels; and
• Internal marketing studies describing the relevant competitors.

A defendant’s own business records may sometimes provide more compelling evidence than the plaintiff’s characterization of the market.

Lesson Five: Document Instance of Confusions

Actual confusion is not required to prove infringement, but it can be powerful and the best evidence to provide confusion. Van Leeuwen presented evidence that:

• A consumer’s husband purchased Rebel when sent to buy Van Leeuwen;
• Grocery employees placed Rebel price tags on Van Leeuwen products;
• Retail employees intermingled the brands;
• Buyers and industry professionals commented on the packaging similarities; and
• A consumer survey measured a 34.3% net confusion rate.

Businesses should establish a procedure for recording confusion as it occurs. Relevant evidence may include misdirected emails, customer complaints, mistaken purchases, social-media comments, retailer questions, returned products, and inquiries suggesting affiliation or common ownership.

Each incident should be documented with the date, source, exact communication, and any available supporting image. Even a small number of reliable incidents may carry weight, particularly for inexpensive products for which consumers have little incentive to complain.

Lesson Six: Registration of the Word Mark Does Not Resolve a Trade Dress Dispute

Rebel argued that the USPTO had not found a likelihood of confusion between the parties’ word marks. The court rejected that argument because the USPTO’s evaluation of the names did not resolve whether Rebel’s packaging infringed Van Leeuwen’s trade dress as used in the marketplace.

This distinction is important. Trademark protection may cover several different assets:

• A company or product name;
• A logo;
• A slogan;
• A product configuration; and
• The overall appearance of packaging.

Registering a word mark does not necessarily protect the packaging, nor does the coexistence of two different names eliminate a potential trade dress claim.

Lesson Seven: Financial Records Determine the Monetary Remedy

After finding infringement, the court awarded Van Leeuwen $23.785 million of Rebel’s profits. Under the Lanham Act, the plaintiff generally must prove the defendant’s sales, while the defendant bears the burden of proving deductible costs.

The court reduced the award by 33% to account for sales attributable to customers who purchased only “better-for-you” ice cream. Nevertheless, Rebel was unable to establish a reliable method for a larger causation-based reduction.

A business facing a trademark or trade dress claim should preserve detailed records showing revenue, product-specific costs, customer categories, sales channels, and other reasons consumers purchased the product. General assertions that packaging had little effect on sales will ordinarily be less persuasive than contemporaneous financial and marketing data.

The Broader Takeaway

The Van Leeuwen decision shows that trade dress cases are proved through a combination of disciplined legal definition and practical marketplace evidence. The strongest case does not rest solely on placing two packages next to each other and arguing that they look alike.

A successful plaintiff should be prepared to show a specifically defined and consistently used trade dress, nonfunctional design choices, overlapping marketplace conditions, credible evidence of confusion, and reliable financial evidence. A defendant, meanwhile, should be able to document independent design, explain its choices, preserve development records, and substantiate any claimed deductions or alternative causes of sales.

For business owners, the most important lesson is to build the evidentiary record before a dispute arises. Consistent brand guidelines, dated packaging samples, design files, marketplace photographs, customer communications, and financial records can transform a recognizable brand appearance into an enforceable intellectual-property asset.

The court’s complete decision, including images of the parties’ packaging, is available HERE.