“Cookie Wars in Aisle Four: Mondelēz v. Aldi” by Deena R. Merlen

Let’s say I, a busy attorney, am late leaving work and have to run a few errands on the way home. I’m driving on Route 1 past strip malls and big box stores, trying to remember where the heck is Home Depot.

Far ahead, I see an orange something on a sign, and although it is far too far for me to read any words, I know I have found it, just from the color alone. That color is effectively functioning as a trademark, a source indicator—it tells me, “Home Depot.”

And even if it is the exact same orange as a certain brand of politician, nobody is going to confuse a hardware store with a politician, not even if they both tend to obsess about the water pressure of shower heads.

When it comes to trademark infringement, that’s the bottom line: We ask, “is there a reasonable likelihood of consumer confusion between the two?”

So now let’s say I make a quick stop at the liquor store—I motor down the aisle and pluck some Absolut Vodka from the shelf without having to slow down to even glance at the label, thanks to that distinctive bottle shape. The Absolut Vodka bottle is a classic example of trade dress.

But then I try to squeeze in one last errand – a quick stop at the supermarket to get the kid his absolute favorite cookies for his birthday – and in my haste, I bring home… the wrong ones! They look so similar.

I try to convince the birthday boy that the store brand I bought is just as good, but he is not to be appeased. I pour myself some vodka. It has been a long day.

So, what happened there, in Aisle 4 of the grocery store?

We turn now to the cookie wars of Mondelēz v. Aldi.

Mondelēz International, Inc., owner of Nabisco and one of the world’s largest multinational food companies, fattens waistlines in over 150 countries with a wide variety of tasty packaged snacks sold in grocery stores and other channels around the world.

OREO®, WHEAT THINS®, NUTTER BUTTER®, CHIPS AHOY!®, NILLA WAFERS®, RITZ®, and PREMIUM® are among the iconic Mondelez brands.

On May 27, 2025, Mondelēz filed a complaint in the District Court of the Northern District of Illinois for damages and injunctive relief against Aldi, Inc., owner of the Aldi supermarket chain, arising from Aldi’s use of private label or “store brand” product packaging on cookies and crackers that Aldi sells at its stores.

Mondelez contends that Aldi’s products are packaged in a manner that deliberately copies Mondelēz’s trade dress for certain cookies and crackers snack products and thereby trades upon Mondelēz’s valuable reputation and the goodwill Mondelēz has developed in its trade dress for these products.

Mondelēz asserts that Aldi’s actions are likely to deceive and confuse consumers and dilute the distinctive quality of Mondelēz’s unique product packaging, and if not stopped, threaten to irreparably harm Mondelēz and its valuable brands.

As Mondelēz puts it in the complaint, Aldi, by its marketing and sale of the alleged look-alikes, “seeks to ride the coattails of the substantial reputation of the Mondelēz trade dresses in order to benefit from its power of attraction, fame and/or prestige, and to exploit the marketing effort expended by Mondelēz.

Defendant’s clear intent is to take advantage of the reputation of the Mondelēz trade dresses to assist it in selling the infringing products.”

Mondelēz seeks damages and injunctive relief based upon Aldi’s alleged willful trademark infringement, trade dress infringement, unfair competition, unjust enrichment and dilution under federal and state law.

What is trade dress, and what do courts consider when weighing in on claims like these? Let’s unpack this whole packaging claim.

Trade dress is a type of intellectual property that relates to the overall sensory impression of a product, which may include, for example, its shape, size, graphics, colors, textures, and more.

Trade dress protection can be extended to a product’s packaging if the packaging is sufficiently distinctive as to serve, like any other trademark, as a unique source identifier, provided the packaging is non-functional. (Functional product features may, in appropriate cases, be protectable under patent law, but they will not enjoy trademark and trade dress protection.)

To make out a claim for trade dress infringement, a plaintiff must generally argue that its trade dress is non-functional, distinctive, and that the defendant’s trade dress is reasonably likely to cause confusion with the plaintiff’s trade dress.

Concerning distinctiveness, trade dress may be inherently distinctive or it may become distinctive through secondary meaning acquired due to the extensive, exclusive, and long-standing use of the plaintiff’s trade dress over time.

In the instant case, Mondelēz claims in its first cause of action for federal trade dress infringement that its trade dress for Oreos, Wheat Thins, Nutter Butter, Chips Ahoy, Nilla Wafers, Ritz and Premium snacks is distinctive, non-functional, predates the look-alikes it alleges are sold by Aldi, and that Aldi’s alleged look-alikes have caused and are likely to cause consumer confusion.

Mondelēz’s complaint includes pictures of its products alongside Aldi’s, and the side-by-side comparisons are admittedly compelling.

Mondelēz walks the court through the various features it claims are distinctive in the product packaging for each of its products and then points to the similarities of Aldi’s product packaging.

Notably, none of the elements in its product packaging that Mondelēz claims are distinctive appear to be functional elements but rather are in the nature of aesthetic design choices.

For example, with respect to its Oreos cookies, Mondelēz points to its depiction of the cookie on the package (the “prominent cookie consisting of a white filling sandwiched between two black biscuits marked with a distinctive embossment of ridges forming a rim along the circumference, which is slightly tilted to the right”), the color scheme (“a predominantly blue background with a lighter blue halo around the cookies”), other design elements (“a white milk splash design”), the font choices, the particular placement and colors of the logo on the package, and so on.

Mondelēz then conducts a similar analysis of Aldi’s sandwich cookie packaging, drawing attention to all the striking similarities. Mondelēz does this with respect to each of the seven products in which Mondelēz contends Aldi has infringed Mondelēz’s federal trade dress rights.

Mondelēz also claims, in its second cause of action, that the trade dress for six of these seven products is “famous” within the meaning of Section 43(c) of the Lanham Act and that Aldi’s conduct constitutes unlawful trademark dilution in violation thereunder.

In its third and fourth causes of action, Mondelēz asserts claims of unfair competition and dilution, respectively, in violation of Ohio’s applicable state and common law.

The complaint includes images of Mondelēz’s product packaging for the various products over many, many years.

These show that even as the product packaging has subtly changed over time, there is a long history of continuous use of the prominent elements, arguably lending support to Mondelēz’s assertions that at this point its trade dress enjoys distinctiveness and fame.

The complaint also includes numerous examples of third parties selling competing products with dissimilar product packaging.

Mondelēz forcefully argues this is further evidence that Mondelēz’s trade dress is unique, distinctive, arbitrary, and non-functional, and shows it is not competitively necessary for Aldi’s product packaging to be so similar to Mondelēz’s.

Exhibits A and B to the complaint treat us to image after image of packaged snacks, with packaging that lovingly bears images of chocolate chip cookies, peanut butter cookies, wafer cookies, salty crackers, wheat crackers, sandwich cookies with vanilla cream filling, and other tasty, crunchy snacks.

As we await Aldi’s response, one thing is certain: This case is making me hungry.

Deena R. Merlen is a partner at Reavis Page Jump.

Reprinted with permission from the July 29, 2025 issue of the New York Law Journal © 2025 ALM Global Properties, LLC. All rights reserved. Further duplication without permission is prohibited, contact 877-256-2472 or asset-and-logo-licensing@alm.com.

This article is intended as a general discussion of these issues only and is not to be considered legal advice or relied upon. For more information, please contact RPJ Partner Deena R. Merlen, who counsels clients in areas of employment and labor law, intellectual property, media and entertainment, general business law, commercial transactions and dispute resolution. Ms. Merlen is admitted to practice law in Connecticut and New York.