Frito Lay Scooped On Infringement Claims

Defendants Medallion Foods, Inc. and Ralcorp Holdings, Inc. scored a jury verdict against Plaintiff Frito Lay on a variety of infringement claims. The Frito Lay claims were for trademark infringement, trade dress infringement, unfair competition and dilution under the United States Trademark (Lanham) Act, 15 U.S.C. § 1051, et seq. (as amended); and for patent infringement under the patent laws of the United States, 35 U.S.C. § 271 et seq. As the basis for its claims, Frito Lay alleged that Defendants infringed both the manufacture process patent, the trademarks and trade dress packaging of its TOSTITOS® SCOOPS!® tortilla chips. The case went to trial in February and lasted two weeks at which time the jury decided for the Defendants. Post-Trial Motions, including a Motion for New Trial, are pending.

This post addresses the trademark and trade dress aspects of the case. Frito Lay alleged in its Complaint that Defendants’ multi-sided bowl-shaped chip design was identical to its SCOOPS! product and as such the only other competitor bowl-shaped tortilla chip product on the market. With regard to the packaging, they asserted that the lettering at the top of the BOWLZ package was black and thick with a white shadow and superimposed over a dark yellow shield-like design similar to SCOOPS! Also, the package combination of mark and shield featured orange accents and in the middle of each bag there was a clear panel showing the multi-sided bowl-shaped white corn tortilla chips. Below the panel, on the bottom third of each package, there was a bowl of red salsa that spans almost the entire width of the bag. Further, the packaging for both products was dominated by the color blue. But despite these amazing similarities, the jury found there to be no likelihood of confusion.

In my opinion, the jury ultimately based their decision on the dramatic difference in the names of the products, SCOOPS! versus BOWLZ, and that such guarded against consumer confusion. The names were prominently displayed on each product’s packaging. The Frito Lay product SCOOPS! avocado and bean dip. Whereas with the Ralcorp product, you loaded salsa dip into your BOWLZ. And with regard to the chip itself, well the consumer purchasing decision is usually made while looking at the package. But, how about the Mom considering a party display of bowl-shaped chips at a school event. Your thoughts?


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