Private-label design has moved from harmless imitation to legally actionable mimicry and courts are taking notice. According to the Private Label Manufacturers Association (PLMA), U.S. store-brand sales grew 3.9% last year to a record $271 billion, signaling a structural shift in consumer behavior — and a growing threat to manufacturers with well-established brand equity.

This shift has corresponded with an observable uptick in trademark litigation that includes trade dress allegations. Commentators note that courts are increasingly entertaining trade dress claims — a trend that signals brand owners are treating trade dress as a regular component of their enforcement strategies. Although trade dress filings make up a smaller percentage of overall trademark cases, courts are seeing an increasing number of disputes centered on product design, packaging, and overall look-and-feel, particularly in actions involving private-label or “lookalike” goods.

The result? Retailers are pushing design boundaries, national brands are drawing firmer lines, and courts are increasingly tasked with determining where “inspiration” becomes “infringement.”

For additional background on how online evidence can tip the scales in intellectual property disputes, see Page Vault’s blog:
🔗 When Online Evidence Holds Up in IP Cases

Below, we break down three of the most relevant cases, the legal issues at stake, emerging defense strategies, and how online evidence is now shaping the direction of modern IP disputes

Case #1: The J.M. Smucker Co. v. Trader Joe’s Co. — The PB&J Showdown

Court: U.S. District Court, Northern District of Ohio
Case No.: 5:25-cv-02181
Filed: October 13, 2025
Official Complaint (PDF):

Smucker alleges that Trader Joe’s crustless PB&J sandwich infringes both its registered trade dress and its incontestable 2D design marks, including:

• the round configuration
• the crimped perimeter sealing
• and the bite-mark graphic displayed on packaging

Plaintiff’s Legal Position

Smucker’s claims include:

• Trademark infringement – 15 U.S.C. §1114
• Trade dress infringement – 15 U.S.C. §1125(a)
• False designation of origin – §1125(a)(1)(A)
• Common law unfair competition

Smucker relies on its decades-old and now incontestable registrations, which shifts the burden to Trader Joe’s to challenge functionality or distinctiveness — a difficult threshold under modern trade dress jurisprudence.

Smucker also cites online consumer posts referring to the Trader Joe’s sandwiches as “Uncrustables,” an example of actual marketplace perception that can support a likelihood-of-confusion analysis under §1125(a).

Likely Defense Strategies

Trader Joe’s may argue:

• Functionality: circular shape and crimping are utilitarian for sealed sandwiches
• Lack of distinctiveness: several competitors offer similar sandwiches
• No likelihood of confusion: private-label shoppers understand store-brand sourcing

Litigation Takeaways

• Online comments and marketplace posts are increasingly central to confusion analyses.
• Incontestable registrations can shift the framing of early motions, but do not eliminate functionality defenses. 
• Plaintiffs should expect a rise in functionality defenses.

Case #2: Lululemon Athletica Canada, Inc. v. Costco Wholesale Corp. — The Apparel Dupe Case

Court: U.S. District Court, Central District of California
Case No.: 2:25-cv-05864
Filed: June 27, 2025
Official Complaint (PDF):

Lululemon alleges that Costco’s private-label activewear copies the non-functional, source-identifying design configuration of its Define Jacket, Scuba Hoodie, and core leggings. The complaint highlights a coordinated set of features — including seam placements, contoured silhouette, stitching direction, pocket architecture, and zipper styles — that it claims form protectable product-design trade dress.

Plaintiff’s Legal Position

Because the Supreme Court held in Wal-Mart v. Samara Bros., 529 U.S. 205 (2000), that product design can never be inherently distinctive, Lululemon must establish secondary meaning. The company is likely to rely on:

• extensive advertising emphasizing these design elements,
• consistent visual presentation across product lines,
• commercial success,
• and consumer perception evidence showing association of the design with the Lululemon brand.

Claims include:

• Trademark infringement (§1114)
• Trade dress infringement (§1125(a))
• False designation of origin (§1125(a))
• California UCL (§17200)
• Potential dilution (§1125(c)) for iconic designs

Lululemon will likely point to online “dupe” commentary — including posts labeling Costco’s apparel as “Lululemon dupes” — as potential actual confusion evidence under the Sleekcraft factors. Prior enforcement history, such as its 2012 dispute with Calvin Klein, may further support its narrative that these design features function as brand identifiers.

Defense Strategies Likely in Play

Costco is expected to counter with several established defenses:

Functionality (TrafFix)

Costco may argue the seam placement, silhouette, and stitching are functional athletic-performance features, not trade dress.

Generic / Common Design Features

It may assert that these design elements are common across athleisure brands, making them generic rather than source-identifying.

Lack of Secondary Meaning

Costco can challenge whether consumers associate the design with Lululemon specifically, emphasizing that product design requires strong proof of secondary meaning under Wal-Mart.

No Likelihood of Confusion

Costco will likely contend that:

• its private-label branding is clear,
• consumers understand private-label sourcing,
• and apparel is a higher-engagement purchase, reducing confusion risk.

Litigation Takeaways

• Apparel trade dress claims still face high hurdles post-Wal-Mart.
• “Dupe culture” could become a decisive factor in post-sale confusion analysis.
• Social media evidence may carry increasing weight—but only if properly preserved and authenticated.
  
  

Case #3: Mondelēz International, Inc. v. Aldi Inc. — The Cookie Packaging Battle

Court: U.S. District Court, Northern District of Illinois
Case No.: 1:25-cv-05905
Filed: May 27, 2025
Official Complaint (PDF):

Mondelēz alleges that Aldi’s private-label cookie packaging is “confusingly similar” to Oreo and Chips Ahoy!, based on:

• nearly identical color schemes
• similar font families
• analogous layout structures
• comparable cookie imagery placement

Plaintiff’s Legal Position

Claims include:

• Trade dress infringement (§1125(a))
• Trademark infringement (§1114)
• Common law unfair competition

The complaint emphasizes the total image and impression of the packaging — the same logic upheld in Two Pesos v. Taco Cabana, where overall look and feel was sufficient to establish protectable trade dress.

Potential Defenses

Aldi may argue:

• Color + imagery combinations are standard in the cookie industry
• Consumers expect private-label equivalents in grocery aisles
• Source disclosure is clear through Aldi’s branding

Litigation Takeways:

• Packaging cases hinge on overall visual impression, not isolated elements.
• Side-by-side comparisons (physical and online) will be critical.
• Online retailer listings and e-commerce shelf images must be captured promptly, before platforms update product visuals.
  
  

What These Cases Reveal About IP Enforcement in 2025

1. Trade dress is becoming a primary enforcement tool.

Courts are seeing increased trade dress claims, particularly in food, apparel, and consumer goods. This reflects:

• heightened sophistication in private-label design
• increased investment by brands in protectable visual identity
• courts’ growing comfort evaluating “total image” trade dress where secondary meaning is established

Yet courts remain cautious of functionality, which is why defendants in all three cases are likely to assert it.

2. Online “dupe culture” accelerates actual and implied confusion.

Influencer comparisons, social media reviews, and viral “dupe” content provide real-time insight into consumer perception — a key component of likelihood of confusion analyses under:

• Sleekcraft factors (9th Cir.)
• Polaroid factors (2nd Cir.)
• Similarity/strength/intent factors across circuits

These online posts are contemporaneous marketplace evidence, which courts increasingly consider when evaluating confusion, initial interest confusion, and post-sale confusion.

However, this evidence is short-lived, creating legal challenges such as:

• difficulty authenticating deleted content
• incomplete or missing metadata
• inability to show chronological changes
• barriers to admissibility under FRE 901 and 902(14)

This ephemeral nature makes fast, defensible preservation essential.

3. Online evidence has become central to modern trademark litigation — and increasingly challenging to preserve.

From e-commerce listings to user comments to influencer videos, the most persuasive evidence of similarity and confusion now appears online rather than in physical stores. But unlike traditional physical evidence, online content presents unique legal and practical challenges that make timely and defensible preservation essential.

Modern online evidence is:

Ephemeral

• Posts, comments, product listings, and videos can be deleted or edited within minutes — often after a cease-and-desist letter is sent, or even as a result of platform algorithms automatically cycling content.

Dynamic

• Webpages render differently depending on device, browser, geolocation, logged-in state, and A/B testing. What one consumer sees may differ from what another sees, complicating the “real marketplace conditions” courts increasingly want to analyze.

Distributed across dozens of platforms

• Relevant evidence may appear simultaneously on Amazon, TikTok, Reddit, Instagram, Meta Shops, third-party retailer websites, Google Shopping, YouTube, and niche platforms — each with different formats, data structures, and deletion policies.

Subject to constant platform changes

• E-commerce interfaces are updated frequently. Social feeds reorder themselves dynamically. Algorithms choose what surfaces to consumers. These conditions make reconstructing what consumers actually saw at a point in time extremely difficult without authenticated captures.

Easily manipulated or overwritten

• Retailers often update product images, titles, descriptions, and pricing in response to legal risk. Influencers frequently delete or restyle content. Even platforms themselves may auto-refresh listings or compress media.

Because of these realities, courts increasingly require robust authentication standards under the Federal Rules of Evidence.

To be admissible, online evidence must satisfy either:

To satisfy FRE 901(a), the proponent must provide evidence sufficient to support a finding that the item “is what the proponent claims it is.” In the context of online evidence, this means counsel must demonstrate that the captured page is a true and accurate representation of what was displayed to users at the relevant moment. Courts have repeatedly held that unauthenticated screenshots or reconstructions are insufficient, especially when the opposing party raises questions about accuracy, context, or potential manipulation. As a result, authentication often requires detailed information about how the webpage was accessed, what device or browser was used, and the technical steps taken to preserve the content without alteration.

This often requires:

• full-page fidelity,
• metadata,
• timestamps,
• URLs,
• capture context, and
• certification of no alteration.

2. FRE 902(13) and 902(14) — self-authentication of electronic evidence

Under these provisions, certain forms of electronic evidence can be admitted without live testimony if the proponent can show that the item was generated or preserved through a reliable automated process. In practice, this means that courts will accept digital records as authentic when they are accompanied by a certification describing how the record was captured, stored, and verified, and when the electronic file includes integrity indicators demonstrating it has not been altered. This is especially important in trademark and trade dress cases, where online content may be challenged as incomplete, manipulated, or taken out of context. Self-authentication under 902(13) and 902(14) helps remove disputes about provenance by tying the evidence to a verifiable technological process.

Digital evidence may be deemed self-authenticating when supported by:

• cryptographic hash values,
• reliable capture methodology, and
• system-generated metadata.

Without these elements, courts may reject screenshots or reconstructed content — even if the underlying material once existed.

How Page Vault Helps Legal Teams Build Stronger IP Cases

Conclusion

From food products to apparel to household goods, modern trademark and trade dress disputes are now shaped by how products appear online — and how consumers talk about them in real time.

Likelihood of confusion increasingly appears in social comments, reviews, side-by-side comparisons, and marketplace listings. That evidence is dynamic, perishable, and often pivotal.

To succeed, legal teams must capture this evidence early, accurately, and defensibly. Page Vault enables that by delivering authenticated, metadata-rich captures that meet federal evidentiary standards and support stronger, more effective IP enforcement

Disclaimer

Page Vault is not a law firm and does not provide legal advice. The information in this article is for general educational purposes only and should not be relied upon as legal guidance. Always consult qualified legal counsel regarding specific trademark or trade dress matters.