05 August 2026
A product’s name and logo are not the only parts of a brand worth protecting.
Its colours, typography, layout and overall packaging can also become valuable brand assets.
A US dispute between ice cream brands Van Leeuwen and Rebel provides a costly reminder.
What happened?
Van Leeuwen alleged that Rebel had copied the distinctive appearance of its ice cream packaging.
The competing products used similar pastel-coloured tubs, prominent handwritten-style branding and comparable design layouts.
Rebel argued that pastel colours and similar design elements were widely used in the food industry and could not be monopolised by one company.
The Court did not accept that argument.
The overall combination mattered
Individual colours, fonts or layouts may not be distinctive on their own.
But the combination of those elements can create a recognisable overall appearance that consumers associate with a particular business.
Van Leeuwen also had evidence of actual consumer confusion. Rebel’s lack of good faith was reportedly relevant to the outcome.
The consequences were significant.
Rebel was ordered to account for approximately US$23.8 million in profits and change its packaging.
Could the same issue arise in Australia?
Yes, although the legal claims may be framed differently.
Australian businesses may be able to protect product packaging through:
- trade mark registrations;
- design registrations;
- copyright;
- passing off; and
- the Australian Consumer Law.
The best protection will depend on what is distinctive about the packaging and whether the relevant rights were secured before copying occurred.
The key lesson is simple: do not wait until a competitor adopts a similar look.
Businesses should identify valuable packaging features early, document the design process and consider registering protectable elements before launching the product.
Developing new packaging or concerned that a competitor is getting too close to your brand? Contact IP Solved to discuss the best way to protect and enforce your rights.
This article provides general information only and does not constitute legal advice. Business owners should seek advice tailored to their circumstances from a qualified intellectual property professional.
