Private Label Lawsuits: Lookalike Packaging, Trade Dress and Comparison Claims

The Lookalike Packaging Question

Discount grocers built on private label ranges frequently package products using colours, shapes and layouts resembling the national brand equivalent, which helps shoppers locate the alternative on shelf.

Brand owners argue this crosses into trade dress infringement, taking the recognition they invested in building. Retailers argue it is lawful comparison that helps consumers identify substitutes and lowers prices.

Where the Line Falls

The test is likelihood of consumer confusion, assessed on similarity, strength of the original trade dress, evidence of actual confusion, and the sophistication of buyers in that category.

Courts weigh the prominence of the retailer own brand name. Where a private label product carries a clear house brand and appears in a store selling almost exclusively its own labels, confusion is harder to establish than where a lookalike sits beside the original.

Comparative advertising is lawful where truthful and not misleading, including express comparison to a named brand. The dispute concerns implicit comparison through appearance rather than explicit statements.

What Shoppers Should Know

Private label products are frequently made by the same manufacturers producing national brands, though formulations may differ. Similar packaging does not indicate identical contents, and the ingredient panel is the reliable comparison.

For products where formulation matters, particularly food with allergens or specific nutritional requirements, compare panels directly rather than assuming equivalence from packaging similarity.