January 23, 2024

Trade Dress Infringement Involving Old Bay

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The Washington Post reported that Crabcakes & Cannabis received a cease and desist letter from spice maker McCormick & Co. regarding Crabcakes & Cannabis’ use of McCormick’s Old Bay trade dress on a cannabis sticker. While C&C did not actually use the Old Bay word mark, the look and feel mimicked Old Bay product packaging.

C&C responded that it was using the Old Bay trade dress as a parody that was protected under the 1st amendment, but agreed to stop using the trade dress to avoid a potentially costly legal dispute.

This dispute follows in the footsteps of the recent US Supreme Court decision regarding an alleged parody of Jack Daniels trademarks and trade dress, and is a reminder that trademark law also applies to the look and feel (trade dress) of a product or service, particularly famous trademarks and trade dress. When making branding and marketing decisions, businesses need to consider whether their branding and marketing can be argued to trade off the goodwill of another’s trademark or trade dress to avoid costly legal disputes and rebranding.

If you have any questions about trademarks and trade dress, read more in our FAQ or contact us.

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