The Tel Aviv District Court has refused to grant a preliminary injunction to Strauss Ice Creams Ltd who claim that the packaging of Nestle’s “La Cremeria” ice cream infringes Strauss’ “Cremisimo” ice cream.
This decision concerns a conflict between two of the leading ice cream manufacturers in Israel; Strauss and Osem (Nestle). Nestle launched a line of “La Cremeria” ice cream in a golden elliptic packaging which Strauss contended was confusingly similar to Strauss’ “Cremisimo” ice cream, previously marketed in golden elliptic packaging.
Justice Binaymini of the Tel Aviv District Court denied Strauss’ motion for preliminary remedies, ruling that as a matter of principle, he is reluctant to grant exclusivity with respect to an elliptic shape for an ice cream box, and that the color gold implies quality, and is thus not distinctive to Strauss. In this case, the evidence implies that neither the gold nor the and elliptic shape of the packaging are distinctive to Strauss.
Apparently both the shape of the box and the specific shade of gold used by the parties are different. Strauss only started using their gold, elliptical packaging in 2008, whereas other traders had already been using golden packaging for ice creams. The judge rejected market surveys submitted by both sides to support contentions of likelihood of confusion and distinctiveness, and pointed out that this is a conflict between the two market leaders in the field at the height of the ice cream season, so on balance, a preliminary injunction is not justified.