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Private-label ‘dupe’ products have long offered familiar flavours at lower prices, but recent legal action shows manufacturers are ready to challenge retailers when these closely mimic a brand. Andrew Lux, associate in Greenberg Glusker’s Litigation Group, explores how Smucker’s lawsuit against Trader Joe’s could reshape trademark and trade dress boundaries in the grocery sector.

The latest in an on-going legal battle between food manufacturers and grocery chains presents a notable risk to a common practice for many retailers: offering private-label products that resemble popular brands to communicate 'same product, lower price' to consumers.

In The J.M. Smucker Company vs Trader Joe’s Company (N.D. Ohio, Case No. 5:25-cv-02181), Smucker claims that Trader Joe’s new crustless peanut butter and jelly sandwich that “mimics” the distinctive appearance and packaging of its popular Uncrustables brand violates federal trademark and Ohio state law. Specifically, Smucker argues that by intentionally copying its “pictorial representations of a round crustless sandwich in whole and with a bite taken out of it showing filling on the inside,” Trader Joe’s infringed upon its protected trademarks and trade dress.

Trademarks and trade dress both protect a company’s brand identity by preventing others from using confusingly similar marks or designs that are likely to cause consumers to mistakenly believe that a product comes from the owner of the trademark. But they do so in different ways. A trademark is a recognisable identifier, such as a word, design, logo or colour, that is associated with a business. Trade dress, on the other hand, refers to the overall visual appearance of a product or its packaging.

Often times the 'look' or 'feel' of a product’s trade dress allows a customer to recognise a brand from the packaging or the appearance alone. Perhaps the most famous examples are Coca Cola’s distinctive contour bottle shape that distinguishes it from other sodas or Toblerone’s triangular chocolate bar.

In its lawsuit against Trader Joe’s, Smucker claims that the retailer’s 'Crustless' sandwiches infringe both its trademarks (which protect its image of a “pie-like shape with distinct peripheral undulated crimping” and its blue, stylized font) and trade dress, ultimately misleading consumers into believing that Trader Joe’s sandwiches are affiliated with Smucker’s Uncrustables.

Smucker even cites two social media posts that it claims are evidence that consumers “have already been deceived into believing that [Trader Joe’s] product is in some way sponsored by, originates from or is affiliated with Smucker.” One such post, which includes an image of Trader Joe’s 'Crustless' sandwiches, incorrectly states that “Trader Joe’s now has Uncrustables”.

Smucker is not the only major manufacturer to recently accuse a grocery retailer of copying its product to make and market a private-label alternative. Just a few months earlier, Mondelēz International sued the popular supermarket chain Aldi (N.D. Ill., Case No. 1:25-cv-05905), claiming that Aldi “blatantly cop[ied]” its packaging for popular cookie and cracker brands, including Oreo, Wheat Thins, Ritz, Chips Ahoy!, Nilla Wafers and Nutter Butter, to mislead customers in violation of federal law.

According to Mondelēz, Aldi’s packaging designs replicate “distinctive and iconic elements” of their protected trade dress, including their colour schemes, font styles, product imagery and layout, causing consumers to believe Aldi’s products are (incorrectly) associated with Mondelēz’s various brands.

The similarities between the two cases are apparent. In each case, manufacturers (Smucker and Mondelēz) assert that retailers (Trader Joe’s and Aldi) improperly copied their products to confuse consumers and gain an unfair competitive advantage by leveraging the manufacturers’ investments in their respective brands.

Product shape as intellectual property

Smucker’s lawsuit, however, represents a slight departure from the typical infringement case. Like Mondelēz, Smucker accuses Trader Joe’s of mimicking its packaging, including using the “the same colour blue that Smucker uses and has trademark rights in”. But Smucker also takes issue with Trader Joe’s copying the shape of the product itself – ie, the round, crimped sandwich.

Under US trademark law, a company can register the shape of a product so long as it’s unique and identifiable, which is exactly what Smucker did here. Smucker argues that by copying the “round, crustless sandwich with a crimped edge” and marketing it “with a bite taken out of it on the packaging,” Trader Joe’s dupe product crosses the legal boundary into infringement.

If Smucker succeeds in enforcing its claimed rights in the shape of its product, it could open the door for other national brands to be more aggressive in challenging private-label brands that mimic the distinctive appearance of their goods.

Whether Trader Joe’s product is infringing will not just turn on the law – trademark claims like Smucker’s are highly fact dependent. To prove its claims, Smucker will need to introduce evidence of consumer confusion. This is often done through consumer surveys designed to measure whether consumers (mistakenly) believe that the allegedly infringing product is associated with the plaintiff.

The strength and recognition of Smucker’s Uncrustable brand is also critical to determine whether consumers may confuse it with Trader Joe’s 'Crustless' sandwiches. Trader Joe’s also has various legal defences it can make to push back on Smucker’s claims.

Copycat product lawsuits, especially in the grocery space, are not unique. For example, in 2013, the Seventh Circuit upheld an injunction preventing Cracker Barrel from selling its packaged food products in certain supermarkets because Kraft Foods previously sold Cracker Barrel-branded cheese under its federally registered trademark. Aldi has also been found liable for similar conduct in the past, infringing on both Hampden Holdings’s Baby Bellies brand and Thatchers Cloudy Lemon Cider

But Smucker’s lawsuit seeks to push the envelope even further. If Smucker prevails, this could impact Trader Joe’s (and other’s) ability to sell dupe products.