When you walk through the snack aisle at the supermarket, chances are you can spot an Oreo or a bag of Chips Ahoy from several feet away. Their distinctive blue packaging, bold lettering, and enticing cookie images aren’t just clever design, they’re protected under a legal concept called trade dress. This often-overlooked form of intellectual property can make or break a brand’s visual identity, and it has recently landed Aldi in hot water with Mondelez International, the makers of Oreo.

In this blog post, I’ll break down what trade dress really means, how Aldi’s strategy backfired, and what you can do to protect your own brand from similar disputes.

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What Is Trade Dress?

Trade dress refers to the visual appearance of a product’s packaging—its colors, shape, layout, and overall look—that signifies the source of the product to consumers. When done right, it creates an instant brand association. For example:

• Oreo’s iconic blue packaging and cookie imagery
• Wheat Thins’ bold yellow box
• Ritz Crackers’ distinct red box with stacked crackers

These visual elements become so familiar that they function like a logo, subconsciously guiding consumers toward trusted products.

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The Aldi Controversy

Aldi, known for its budget-friendly private label products, has long been accused of mimicking the packaging of major food brands. Their approach? Create items that look just enough like popular products to catch the eye, but not enough to invite legal trouble.

However, Mondelez International, the parent company of brands like Nutter Butter, Chips Ahoy, and Nilla Wafers, recently took action. They filed a legal complaint alleging that Aldi’s product packaging infringes on their trade dress rights by mimicking the distinct visual branding of these iconic snacks.

This isn’t the first time Aldi has faced such allegations. The company has a history of similar accusations in both Australia and the United Kingdom, suggesting that this mimicry is more of a business model than an oversight.

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Why Brands Like Aldi Take the Risk

For many generic or private-label brands, building an original identity is far more difficult and expensive than leaning on the success of a well-known product. Instead, they:

• Use similar packaging to create the illusion of equivalence,
• Hope consumers will mistake their product for the real thing, or
• Rely on consumers assuming it’s a cheaper version from the same manufacturer.

While this may seem like clever marketing, it can erode the brand equity of name brands and result in lost profits and consumer confusion, which is why companies like Mondelez are increasingly pushing back.

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The Legal Implications of Trade Dress Infringement

Much like other categories of intellectual property, trade dress infringement doesn’t require identical designs, just enough similarity to confuse the average consumer. Courts typically consider:

• Overall appearance of the packaging
• Market context (Are the products sold in the same aisle?)
• Intent to confuse or deceive
• Evidence of actual confusion in the marketplace

Aldi’s continued use of similar packaging, despite previous allegations, suggests a calculated risk. But as lawsuits mount, the long-term costs could outweigh the short-term gains.

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How You Can Protect Your Brand

For new businesses or startups, it may be tempting to imitate successful competitors, but doing so opens the door to costly legal action and damages your chances of long-term success.

Instead, focus on:

• Creating a distinctive visual identity
• Working with legal professionals to register your trade dress
• Avoiding mimicry in product design or branding
• Investing in original, recognizable packaging

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Let Mindful Counsel Help You Stand Out

At Mindful Counsel, we help you build a legally protected brand identity from the ground up. Whether you’re launching a new product line or rebranding an existing one, our legal team will ensure that your trade dress is:

• Original
• Effective
• Defensible in court

Don’t risk your business by walking too close to the line. Let us help you draw your own.

 Guest post by Cameron Pickle, Associate Law Clerk

Have more questions? Reach out about how we can help protect your business and legacy.