Update 6/2/2021: I went to the grocery store today searching for Egg White Wraps and didn’t find any. Is this really a thing?

Here’s a fairly interesting trade dress lawsuit involving a food product I didn’t even know existed…egg white wraps. Apparently, egg white wraps were the “number one new product in dairy departments…in 2020” (see Complaint below). It begs the question, how many other new dairy products were released in 2020? Dairy product connoisseurs, please educate me in the comments below.

As general information, “trade dress” comprises the characteristics of the visual appearance of a product or its packaging that signify the source of the product to consumers. However, if trade dress is “functional,” meaning the characteristics are “essential to the use or purpose of the article or if it affects the cost or quality of the article,” it cannot serve as a trademark. See TMEP 1202.02(a).

The Plaintiff in this lawsuit, Egglife, is accusing the Defendant, Crepini, of adopting packaging that is too similar to their own egg white wrap packaging.

Here are the specific elements that the Plaintiff consider to be their own protectable trade dress:

a. Interwoven and overlapping shapes with rounded rather than squared edges that weave in and out of the front of the package

b. The interwoven and overlapping shapes with rounded rather than squared edges are comprised of different, yellow-based colors

c. Transparent center window with overlaid graphics

d. Prominent display of “egg white wraps” in the center of the transparent window in the center of the front of the package

e. Lowercase “egglife”brand straight across the upper quarter of the front of the package

f. Smaller arched text centered over the “egglife” brand near the top of the front of the package

g. All capitalized“KEEP REFRIGERATED” text at bottom of the front of the package

h. Lowercase “egglife”brand straight across the upper quarter of the front of the package

i. Smaller arched text centered over the “egglife” brand near the top of the front of the package

j. All capitalized “KEEP REFRIGERATED” text at bottom of the front of the package

As mentioned above, I’m certainly no expert on egg white wrap packaging, but I have been in a grocery store before, and some/most of the above characteristics seem pretty standard for all types of food products. Food marketers please weigh in below, but many of these characteristics seem almost necessary, i.e. functional, given the limited packaging size for a small food product.

However, the Complaint highlights frequent changes to the Defendant’s packaging from early 2018 up to the 2019 rebrand to the current allegedly infringing packaging, of which the Defendant’s packaging now supposedly copies the characteristics of Plaintiff’s packaging:

a. Interwoven and overlapping shapes with rounded rather than squared edges
b. The interwoven and overlapping shapes with rounded rather than squared edges are comprised of nearly identical yellow-based colors
c. Transparent center window with overlaid graphics
d. Lower case brand straight across the upper quarter of the packaging
e. Smaller arched text centered over the top of the brand near the top of the packaging
f. Abandoned trademarked EGG THINS in favor of “egg wraps”
g. Abandoned the long-used CREPINI Iand crown design trademark in favor of lowercase font across the top of the packaging
h. Added “Keep Refrigerated” messaging in all capital letters to the bottom of the packaging

As an unsophisticated egg white wrap consumer, both packagings frankly appear to me just like many other packagings in a grocery store. I’m reminded of flour tortilla packaging. Due in large part to FDA labeling requirements, food producers/marketers have to pack a lot of functional information about a product into a very small space. The use of the colors yellow and white in connection with an egg product seem to be almost a requisite. A transparent center window allowing a consumer to examine the food product seems highly necessary.

The Complaint does include some very limited evidence of instances of actual confusion by Costco consumers posting on Facebook. Considering the type of people that feel a need to post on social media about their Costco purchases, I’m not sure whether I’d consider those to be “significant” instances of confusion. However, they do exist and add an extra wrinkle to the lawsuit and Crepini’s possible defenses and responsibility to avoid consumer confusion.

This trade dress lawsuit will be interesting to follow. Stay tuned for updates.

Egglife Foods, Inc. v. Crepini, LLC

Case Number: 3:21-cv-00388
File Date: Friday, May 28, 2021
Plaintiff: Egglife Foods, Inc.
Plaintiff Counsel: Louis T. Perry, David R. Merritt of Faegre Drinker Biddle & Reath LLP
Defendant: Crepini, LLC
Cause: Trade Dress Infringement, False Designation of Origin, Common Law Unfair Competition, Deception
Court: Northern District of Indiana
Judge: Jon E. DeGuilio
Referred To: Michael G. Gotsch, Sr.

Complaint: