Procter and Gamble's Head & Shoulders brand is just the latest trademark the company has sued Vi-Jon Laboratories over, alleging infringement.

It becomes more clear every day just how much private label brands have impacted the retail environment. This is no more evident than in the increasing litigation by national brands to protect the goodwill they have established in their trademarks and trade dress.

No stranger to litigation claiming it has infringed on the trademark of a major national brand, Vi-Jon Laboratories a private label manufacturer, has been sued by Procter and Gamble over the similarity between its shampoo bottles sold in US retail stores and P&Gs well known Head & Shoulders brand. P&G claims in a press release that “its appearance has become inextricably linked with what we stand for to our consumers”. They also make it clear that they consider any competitor that makes products which come too close to their legally protected trademarks and trade dress unfair to consumers and will challenge these violations. 

It is important to remember that when evaluating trade dress infringement, features such as, color, shape, or size must be considered together, not separately. When analyzing it from a legal standpoint, there are multiple issues that will likely impact this case.

First, the product label is a different shape and the brand and type of shampoo are displayed on the label in a non similar design and color scheme. Also, while the bottle caps are certainly a different tone of blue, they are both a translucent light blue. Additionally, the prominence of the “2 in 1” and almonds draw attention in both bottles and are of a similar nature.  

The legal system will have to determine if these features are not just similar, but substantially similar, and in such a way that consumers may be confused. What do you think? Do the trade dress of these two products appear to be confusingly similar?