/ July 9, 2008

Splenda Not So Sweet In the Courtroom…

This week McNeil Nutritionals, manufacturer of the artficial sweetener Splenda, successfully won an injunction against a generic rival, prohibiting Heartland Sweeteners from distributing its product in packaging similar to Splenda’s. Heartland’s sweetener, packaged for chains including Stop n’ Shop, Giant, and Safeway, shares the yellow, blue, and white color scheme of Splenda, as well as the conventional images of fruit, coffee, and baked goods. Pennsylvania District Court Judge John Padova ruled that in some of the stores, the generic did not closely enough resemble Splenda to warrant consumer confusion. In others, however, Padova found that Splenda did have distinctive branding and packaging, despite Heartland’s argument that Splenda’s colors and images mimicked those of previous sweetener brands.

Initially, Padova denied Splenda’s request for an injunction, stating that consumers have become familiar with the side by side display of brands and generics at grocery stores, and that other indicators (ie, labels encouraging price comparison) further prevent befuddlement in shoppers. The 3rd Circuit, however, reversed and remanded his original finding, arguing that Padova’s initial analysis could lead to generic brands being held “to a lower standard of infringing behavior.” The second time around, Padova wrote that “the overall Splenda trade dress is arbitrary or fanciful and thus inherently distinctive.” Padova also considered the hefty sum Splenda spent on advertising during its birth, finding that its branding now enjoys secondary meaning.

Is Splenda’s cause a worthy one? Do grocery store generics throw you for a loop? Let us know in the comments.

Source: The Legal Intelligencer and WSJ Law Blog

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