A federal judge in Brooklyn just decided that painting a cardboard ice cream pint a soft pastel color, giving it a matching lid, and writing the brand name in black cursive is so uniquely original, so protectable, that a competitor must now hand over nearly $24 million in profits for daring to do something similar. The target of this judicial creativity is Rebel Creamery, the low-carb, keto-friendly ice cream brand. The winner is Van Leeuwen.
This decision is an embarrassment to trademark law.
Van Leeuwen’s “trade dress” consists of plain pastel monochrome containers with matching lids, the name in black script with an oversized first letter, and a minimalist layout. That is not distinctive branding. That is a color, a lid, and a font. Pastel cartons are not rare. Matching lids are not rare. Black cursive lettering is not rare. Minimalist packaging is not rare. Treating this combination as some sacred, exclusive commercial signature is judicial overreach of the highest order. Copying a plain container color is not infringement. If it were, every brand that ever used a soft blue or pale yellow tub would owe royalties to the first company that thought of it.
Now look at what actually sits on the shelf next to those Van Leeuwen pints. Every single Rebel container features an enormous black circle, often the single largest graphic element on the entire package, screaming the net carbs or sugar content: “6g,” “1g sugar,” “5g,” “8g net carbs per pint.” It is not buried in the nutrition panel. It is plastered dead center on the face of the product.
Visually, that circle routinely occupies roughly 15% to 25% of the front surface of the carton, an area that rivals or exceeds the brand name itself. You cannot miss it. It is designed precisely so that no one misses it. It is the main calling feature of Rebel’s design.
The court dismissed this dominant, screaming indicator as a mere “slight design difference” used “to convey dietary information.” That characterization is absurd on its face. A feature that claims 15%-25% of the front of the package, is larger than almost every other graphic element, and is the single most important piece of information for the product’s entire target market is not “slight.” It is the point of the packaging.
Anyone looking for regular, high-sugar ice cream would have to be willfully blind, or simply unable to comprehend what a large black circle containing “1g sugar” or “6g net carbs” means, to pick up a Rebel pint by mistake. A reasonable Van Leeuwen seeker would be shocked to see that huge black circle staring back at them and would immediately put the carton back on the shelf. Any reasonable shopper seeing that number blaring in their face would know this is not what they were looking for.
Yet the court treated the packaging as if these enormous dietary callouts somehow faded into the background, leaving only the pastel color, matching lids, and cursive font as the relevant commercial impression. In doing so, the decision effectively assumes that grocery shoppers are either blind to a circle covering up to a quarter of the front of the package or too stupid to understand what the number inside it means. That is not how actual human beings shop for ice cream.
The damages figure compounds the absurdity. The idea that more than $23 million worth of clearly marked specialty low-carb, low-sugar ice cream was purchased instead of high-sugar counterparts because of packaging similarity is pure fantasy. Shoppers seeking conventional high-sugar ice cream are not tricked by pastel cardboard when a giant black circle announcing near-zero sugar or carbs is the most prominent feature on the package, the very feature the court waved away as “slight.” They see that indicator and put the pint back.
A CURE WORSE THAN THE DISEASE?
Frankly, if that fantasy somehow occurred, if some portion of high-sugar ice cream buyers were diverted into the low-carb aisle by packaging confusion, Van Leeuwen should be thanking Rebel. Those customers might otherwise have continued buying the higher-sugar product and later decided to sue someone over diabetes, heart disease, or related health claims. In that alternate universe, Rebel would have performed a public service by steering them toward the healthier, lower-sugar option.
Instead, a federal court treated a common color palette, matching lids, and a cursive font as proprietary property worth tens of millions of dollars in disgorged profits, while dismissing the most conspicuous and commercially meaningful difference between the two products as trivial. That is not protection of distinctive branding. That is protection of plainness, and a remarkable willingness to assume the worst about the intelligence of ordinary shoppers. And it is a ridiculous outcome that will undoubtedly be overturned on appeal. In the meantime, the healthy ice cream company is the one truly damaged party here. Rebel, a private family-owned business founded by husband-and-wife team Austin and Courtney Archibald, has filed for bankruptcy while it continues to fight this injustice.
Jeffrey Lax is a professor of law at the City University of New York and chairman of the Department of Business at Kingsborough Community College. He holds a doctoral degree from Benjamin N. Cardozo School of Law and a master’s degree from Baruch College’s Zicklin School of Business. He holds a bachelor’s degree in business, management, and finance from Brooklyn College.