Cali’Flour Sued In Cauliflower Trade Dress Suit

On September 17, Outer Aisle Gourmet, LLC sued Cali’Flour Foods, LLC in the Central District of California on grounds that the defendant allegedly infringed upon the plaintiff’s trade dress for cauliflower-based sandwich bread and pizza crust by copying packaging design.

The plaintiff proffered to have entered the cauliflower-product market in 2013, three years before the defendant. As such, asserted Outer Aisle, by the time Cali’Flour produced the first product for sale, the plaintiff already had “distinctive packaging protected under federal…trade dress…law” given that “Outer Aisle’s acclaimed products are packaged in originally configured, creatively designed, visually distinctive ‘pouches’ that feature custom color-schemes, color-blocking, designs, stylization, layout, fonts, shapes, banners, and a uniquely shaped transparent window that allow consumers to see the product in the package.” In response to their successful product marketing, postured the plaintiff, the defendant began to alter the product packaging for Cali’Flour items in order to imitate the trade dress of Outer Aisle in an effort to profit off of the plaintiff’s goodwill, established market position, and reputation.

While the plaintiff’s pleading laid out over a dozen ways the defendant purportedly infringed upon Outer Aisle’s trade dress, a few notable examples were the use of the half-circle window on the front of product packaging, the large and stylized use of font to notate grams per serving (e.g. 3g), and the presence upon the packaging of a “photorealistic cauliflower head with two different sized green leaves poking out.”

Trade dress refers to the “total image or overall appearance of a product…such…as size, shape, color or color combinations, texture, graphics, or even a particular sales technique” that “the purchasing public has come to associate with goods from a single source.” The Lanham Act, found at 15 U.S.C. Sec. 1125(a),  enjoins a competitor from using a similar trade dress that stands to likely confuse consumers as to the origin of a product. Given the aforementioned packaging similarities above, argued Outer Aisle, in conjunction with the fact that the products of both parties are marketed to the same consumers and even shelved nearby one another in stores, resulted in Cali’Flour committing trade dress infringement as customers may mistakenly buy the defendant’s “inferior” products in lieu of those of the plaintiff, resulting in lost profits to Outer Aisle.

The plaintiff requested an injunction preventing the defendant from continuing to use the trade dress at issue and damages of $250,000.

Outer Aisle is represented by Michael D. Harris of the SoCal IP Law Group.