Two large players in the distilled spirits space are involved in trade dress litigation filed in U.S. District Court for the Southern District of New York. The claims involve product appearance, specifically claims by Diageo that the Sazerac product marketed under the name Dr. McGillicuddy’s is likely to confuse consumers in the marketplace.
A side-by-side of the two products as set forth in the Complaint appears below.
Trade dress infringement is a type of trademark infringement that grows out of unfair competition law. The law permits those who can prove that the appearance of a product or its packaging (or both) is worthy of legal protection to prohibit competitors from selling products that are so confusingly similar in appearance as to be likely to cause confusion among consumers who encounter the later product in sales channels.
Trade dress protection does not require federal registration with the U.S. Patent and Trademark Office. However, trade dress owners who allege infringement without a federal registration may face the additional legal hurdle of proving that consumers have come to recognize a product’s appearance or packaging as a commercial source indicator – i.e. as a brand – the most famous example being the well-known shape of the Coca-Cola bottle.