Israel food giant Osem manufactures Apropos based on raw material supplied by General Mills. Apropos is a snack food having a fairly distinctive cornucopia shape. Apparently, the snack is marketed in the US under the tradename “Bugles”. The shape has, however, not been trademarked, at least not in Israel, and the possible grounds for preventing rival snack food manufacturers from making generic versions of the snack are unjust enrichment, passing off, etc.
The Supreme Court has upheld the District Court’s refusal to issue an injunction against Meshubach Food Industries, Jerusalem, and A. M. Emek Snackfoods, who market similar shaped snacks under the brands Le Nosh and Pipeto.
The Supreme Court held that despite the similar shapes of Le Nosh and Pipeto, because of the dissimilar name and packaging, consumers were unlikely to be confused. Similarly, unjust enrichment arguments were rejected.
We wonder though. Is there really no likelihood of confusion? Could children be confused if served the snack food from a bowl? What about allergies and Kashruth considerations?
We note that the decision is in line with a similar decision regarding Tottiffee. Nevertheless, the shape is distinctive, so why shouldn’t it be protectable by a trademark?
Osem has long lost their monopoly for the brand-leader peanut flavored snack, Bamba, with Shoosh and other generic versions being available.