If I were looking for a snack at a convenience store and Nestle Crunch were among the ones I’d be likely to buy, among three or four others, the color scheme and prominent display of the word “Crunch” might lead me to pick this one up thinking it was Nestle’s. Even if I noticed the packaging is a little different I might just dismiss the thought because it must be a different size or simply a refresh in the packaging.

I might even observe that this is no longer a “Nestle Crunch” but a “Fit Crunch,” and chuckle to myself about Nestle trying to pass it off as a healthy snack.

I think the writer’s defense of this very blatant attempt by a competitor to abuse for its own advantage the brand equity of Nestle’s product borders on the ridiculous. It’s the exact same shade of the main color. It’s the exact same main word. It’s a very similar layout on the front of the package. This was done consciously with malice aforethought.

You might say, only a minority will confuse the two products, buying the wrong one. That may be, but even a smallish minority of a few percent is enough for that infringement to unfairly harm Nestle. In addition, there may be many times that number of Nestle Crunch consumers whose eye is caught by the very similar packaging and, even after realizing the products aren’t the same, a few will just decide to try it instead of Nestle’s item?

And let’s be honest: is there anyone who doubts for a moment this identification overlap between the two products is precisely what the maker of the “Fit” product wanted?

The only debate is whether this “catch the attention of consumers” effect by using the same most prominent word, very similar placement on the package, and identical main color on the bottom half of the packaging should be considered wrong or not.

And remember: this is not like buying a car or even making a $100 purchase. This is a $1.00 purchase and so the identification will be made at a glance, usually without a second thought.

That is the reality, and what it means is this: IMHO, that “trade dress” is intended to take advantage of consumer familiarity with Nestle’s brand, and its reputation and standing, through at least an initial and momentary confusion, which, in a minority of cases, will lead to a person paying for the Fit snack thinking they were buying the Nestle one. It may be only one out of 20 or even 50, but it is going to happen.

And then you have some additional number of lost sales to Nestle among those who would not have considered this alternative save for the initial confusion with the Nestle product.

Now if Fit had diverted sales from Nestle by calling its snack “Communist Revolution” and advertising it’s redder-than-a-firetruck packaging by completely buying out every last ad space during the Superbowl, fair enough. But not by calling its product “crunch” and packaging it in such a way that at first glance, it seems to be the other company’s product.

Just think about how this product is actually sold. You don’t go to a candy bar showroom and pick up the literature on the models you’re interested in, go home and read it, come back, haggle over the price and so on, and finally try to arrange financing. Instead, you stand in front of a rack with many dozens of these items feeling your stomach growling and out of the corner of your eye you spot the familiar blue of one of your favorites, and as you pick it up you notice they’ve changed the packaging a little, but, yeah, it’s “crunch.”

That’s a swindle, because NO ONE stops to consider the packaging in the detailed, systematic, anal-retentive way this article poses.

If *this* is not infringement, then only direct, immediate fraud, where some other sugar water is sold in those curvy Coca-Cola bottles, would constitute infringement, and the legal concept of infringement of trademarks and trade dress would loose all meaning, since the only prohibited conduct would simply be outright fraud.