Yellow packaging alone doesn’t equal trade dress infringement.

On Monday, the Third Circuit rejected a finding of no substantial similarity between the trade dress of Splenda, the leading "sucralose" sweetener, and that of some grocery chains’ knock-offs.  The fake Splenda packaging looked to the court of appeals just too much like Splenda’s — particularly including the yellow color of the packets.  McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, No. 07-2644 (3d Cir. Dec. 26, 2007).

Other stores’ private-label sucralose products escaped, mainly because the packages made the stores’ recognizable names (e.g., Safeway and Food Lion) more prominent.

The unanimous panel remanded for consideration of whether the Splenda-maker, McNeil Nutritionals, satisfied the other requirements for a preliminary injunction.

Feedicon14x14 Our feed tastes best with Splenda.