IP Law Daily, TRADEMARK—E.D.N.Y.: Keto ice cream maker enjoined from infringing ‘Classic Dairy’ trade dress, (Jul 21, 2026)

By Ravindra Kumar Singh, B.L.

Premium ice cream manufacturer awarded over $23M million in disgorged profits in case that involved grocery employees confusing premium ice cream brand with keto brand while stocking shelves.

A federal district court in New York has ruled in favor of a premium ice cream manufacturer in its trade dress infringement suit against a no sugar, keto ice cream producer. Keto is short for ketogenic, a high-fat, very low-carbohydrate nutritional pattern. Following a bench trial, the court found the keto ice cream producer liable for trade dress infringement under the Lanham Act, common-law trade dress infringement and unfair competition, and trade dress dilution under New York law, rejected its good-faith remote-user defense and counterclaims, permanently enjoined further use of the infringing packaging, ordered it to redesign its product packaging, and awarded the premium ice cream manufacturer $23.785 million in disgorged profits after concluding that the defendant intentionally copied its distinctive packaging and created a likelihood of consumer confusion (Van Leeuwen Ice Cream LLC v. Rebel Creamery LLC, No. 1:21-cv-02356-EK-JRC (E.D.N.Y. Jul. 16, 2026)).

The plaintiff, Van Leeuwen Ice Cream LLC, manufactures premium ice cream sold nationwide. The defendant, Rebel Creamery LLC, manufactures keto-friendly and low-sugar ice cream. Both companies market pint-sized ice cream products through grocery retailers across the United States.

The dispute concerned Van Leeuwen's unregistered trade dress for its "classic dairy" line of ice cream pints. The asserted trade dress consisted of four principal elements: monochromatic cardboard pints with matching monochromatic lids; a primarily pastel color palette; black cursive lettering featuring an exaggerated capital letter across the front of the container; and an overall minimalist design aesthetic. Van Leeuwen adopted the packaging following a 2016 redesign by Pentagram, a design agency, and contended that the distinctive appearance became closely associated with its products.

Van Leeuwen sued Rebel in 2021 after concluding that Rebel's keto ice cream packaging closely copied its distinctive trade dress. Following discovery, the court conducted a bench trial because the plaintiff's jury demand had previously been stricken. Van Leeuwen sought permanent injunctive relief and an accounting of Rebel's profits, while Rebel counterclaimed for declarations that Van Leeuwen lacked a protectable trade dress and that Rebel had not infringed. Rebel also asserted a good-faith remote-user affirmative defense.

Trade dress. First, the court determined that Van Leeuwen had adequately defined a protectable trade dress. Rejecting Rebel's contention that concepts such as a "primarily pastel" color palette and a "minimalist" design aesthetic were too subjective, the court concluded that the combination of elements was described with sufficient precision to place competitors on notice of what Van Leeuwen claimed. It also found that the company's classic dairy line maintained a consistent overall appearance despite limited variations among individual flavors. In reaching that conclusion, the court relied on Cardinal Motors, Inc. v. H&H Sports Protection USA Inc., 128 F.4th 112 (2d Cir. 2025), and Wal-Mart Stores, Inc. v. Samara Bros., Inc., 529 U.S. 205 (2000), which recognized protection for unregistered product packaging that satisfies the Lanham Act's requirements.

The court further held that the trade dress was inherently distinctive rather than descriptive or functional. It found that Van Leeuwen selected its monochromatic packaging, pastel colors, black cursive script, oversized initial capital letter, and minimalist presentation from virtually unlimited design possibilities. Extensive unsolicited media coverage following the 2016 redesign reinforced the conclusion that the packaging had become a distinctive source identifier. The court also rejected Rebel's argument that pastel colors and minimalism served a functional purpose, relying on TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001), and concluded that the trade dress as a whole neither affected the product's utility nor placed competitors at a significant disadvantage.

Confusion. Applying the eight-factor likelihood-of-confusion framework established by Polaroid Corp. v. Polarad Electronics Corp., 287 F.2d 492 (2d Cir. 1961), the court concluded that nearly every relevant factor favored Van Leeuwen.

The court found the trade dress to be commercially strong because Van Leeuwen had invested heavily in advertising, experienced rapid sales growth after the redesign, and received widespread, unsolicited media attention. It also found the competing packages strikingly similar. Both used pastel monochromatic containers with matching lids, black cursive logos featuring oversized initial letters, minimalist layouts, and similar placement of branding elements. Several grocery buyers, brokers, and other industry professionals had independently remarked upon the resemblance between the brands.

The court also determined that the parties directly competed in the same grocery stores for many of the same customers. Rebel's own market research identified premium ice cream brands such as Van Leeuwen as competitors and acknowledged that its packaging aligned more closely with premium brands than with other better-for-you products. The evidence further showed that the products frequently appeared on the same freezer shelves nationwide.

Evidence of actual confusion reinforced the court's conclusion. Consumers mistakenly purchased Rebel products, believing they were Van Leeuwen's, grocery employees confused the brands while stocking shelves and applying price labels, and Van Leeuwen's consumer survey demonstrated a net confusion rate exceeding 34 percent, substantially above levels commonly regarded as persuasive evidence of marketplace confusion. The court therefore concluded that both forward and reverse confusion existed.

Bad faith. The court also found that Rebel intentionally copied Van Leeuwen's packaging. It rejected as not credible testimony from Rebel's founders that they had never seen Van Leeuwen's products before creating their own packaging. The court found it implausible that two independently created designs would share so many distinctive features, including the pastel monochromatic appearance, black cursive script, oversized initial letters, minimalist presentation, and similar placement of design elements. It also considered significant Rebel's inability to produce any preliminary design drafts or iterations showing the development of its packaging.

Because the court found deliberate copying, it concluded that Rebel acted in bad faith and that this factor strongly supported Van Leeuwen under the Polaroid analysis.

State law claims. For substantially the same reasons supporting the Lanham Act claims, the court held Rebel liable for common-law trade dress infringement and unfair competition under New York law. It also concluded that Rebel diluted Van Leeuwen's trade dress under New York General Business Law §360-l because the parties' packaging was substantially similar and likely to blur the distinctiveness of Van Leeuwen's branding.

The court likewise rejected Rebel's good-faith remote-user defense. Although Rebel first sold its products in California, Van Leeuwen already marketed its products there before Rebel entered the market. Moreover, because Rebel intentionally copied the trade dress, it could not establish the good-faith element required for the defense.

Remedies. Turning to relief, the court permanently enjoined Rebel from selling products bearing trade dress likely to be confused with Van Leeuwen's and ordered it to redesign its packaging so that it no longer incorporated the protected trade dress elements. The court concluded that monetary damages alone could not remedy the continuing loss of goodwill and consumer confusion, and that the public interest favored preventing deception in the marketplace.

The court also ordered Rebel to disgorge its profits. Citing Romag Fasteners, Inc. v. Fossil, Inc., 590 U.S. 212 (2020), it observed that although willfulness is not an absolute prerequisite for an accounting of profits, Rebel's intentional copying strongly supported such an award. After accepting certain cost deductions and reducing the award by 33 percent on equitable grounds because part of Rebel's commercial success stemmed from consumer demand for keto products rather than the infringing packaging alone, the court awarded Van Leeuwen $23.785M in disgorged profits.

The Case is No. 1:21-cv-02356-EK-JRC.

Judge: Komitee, E.

Attorneys: Amy Gregory (Susman Godfrey LLP) for Van Leeuwen Ice Cream LLC. Jessica Rubin Caterina (Moses & Singer LLP) for Rebel Creamery LLC.

Companies: Van Leeuwen Ice Cream LLC; Rebel Creamery LLC

Cases: Trademark NewYorkNews GCNNews