Trade dress cases can be difficult to win. Many plaintiffs stumble over fundamental hurdles like clearly and consistently defining the trade dress at issue, establishing distinctiveness in a carefully defined combination of commonplace elements, and showing consumer confusion. Yet trade dress protection (whether registered or not) remains one of the most powerful tools for protecting a brand’s identity and aesthetic. In Van Leeuwen Ice Cream LLC v. Rebel Creamery LLC, Van Leeuwen avoided the common pitfalls and walked away with a sweeping victory.
How can brands replicate Van Leeuwen’s success? The recent decision by the U.S. District Court for the Eastern District of New York decision offers three key lessons:
- Define It Before You Defend It
Many plaintiffs fail by trying to protect a product’s vague “look and feel.” Van Leeuwen avoided that trap by identifying a specific combination of elements: monochromatic cardboard pints with matching lids, a primarily pastel color palette, black script lettering and a minimalist design aesthetic.
Just as important, Van Leeuwen knew what it was not claiming. It limited its trade dress to its “classic dairy” pint line, excluding vegan and limited edition products. Although some flavors departed from the typical pastel palette, the court concluded that those variations did not undermine the line’s overall commercial impression. The court found that taken together, Van Leeuwen’s trade dress was sufficiently precise to put competitors on notice of what it sought to protect.
Key Takeaway: Know exactly where your trade dress begins and ends.
- Distinctive Brands Build Protectable Rights
Trade dress protection depends on distinctiveness, not just attractive packaging. The court emphasized that Van Leeuwen’s trade dress reflected a series of intentional branding choices – from its decision to use cardboard pints instead of plastic containers to its minimalist aesthetic and generous use of negative space.
Even Van Leeuwen’s pastel pints were protected as a branding decision. While color can signal flavor (yellow for vanilla, green for pistachio, pink for strawberry), the court asked a more important question: Why did those colors need to be pastel? In the court’s view, the pastel palette was a creative choice, not a marketplace necessity – particularly where flavors like Earl Grey Tea (periwinkle) and Chocolate Fudge Brownie (light purple) used colors with little obvious connection to flavor.
Key Takeaway: The more intentional the branding choices, the stronger the trade dress story.
- Bring More Than Side-by-Side Comparisons
Many trade dress cases turn on confusion, and Van Leeuwen came prepared. Beyond the striking visual similarities between its products and Rebel’s, Van Leeuwen presented evidence of actual consumer confusion, confusion among grocery store employees and survey evidence showing a net confusion rate of 34.3 percent.
The court was further influenced by evidence suggesting that the similarities were not accidental, including Rebel’s lack of design development documents and its decision to continue using its packaging after a grocery buyer flagged its similarity to Van Leeuwen’s pints. This evidence convinced the court that the likelihood of confusion was not theoretical – it was playing out in the marketplace.
Key Takeaway: Build a factual record of actual consumer confusion, retailer or distributor confusion, consumer survey evidence, and any facts suggesting intentional copying or knowledge of the senior brand to tip the scales in your favor.
Van Leeuwen won because it did what many trade dress plaintiffs fail to do: It was disciplined in defining its trade dress narrowly, demonstrated why that trade dress mattered to consumers, and backed its claims with substantial evidence. For brands facing an increasingly crowded marketplace of look-alike products, the decision is another reminder that successful trade dress enforcement begins long before litigation.
The case is Van Leeuwen Ice Cream LLC v. Rebel Creamery LLC, No. 21-cv-2356 (EK) (JRC) (E.D.N.Y. July 16, 2026). It was assigned to Judge Eric Komitee.
