ORLANDO, Fla. -- The Private Label Manufacturers Association, New York, warned its members to expect more of what it called "harassing tactics" from branded health and beauty care manufacturers who challenge the private-label industry on issues of trade dress.
"For those in the HBC business, there is no doubt there will be a continuation of the harassing tactics by major national brand companies who attempt to protect that which the law now does not entitle them to protect," said Brian Sharoff, president of PLMA, in an address during the association's Annual Meeting and Leadership Conference held here this spring.
In an interview with SN, Sharoff specifically referred to Procter & Gamble's lawsuit last year against F&M Distributors, Warren, Mich., a deep discount drug chain that filed for Chapter 11 protection earlier this year, and other private-label manufacturers for infringement on package design of Head & Shoulders, Sure, Secret and Noxema brands. The lawsuit against a major private-label supplier in that case has since been settled out of court. Officials from Procter & Gamble were unable to be reached for comment on Sharoff's harassment charges. However, a company spokesperson stressed the lawsuits were resolved in favor of Procter & Gamble.
Sharoff also mentioned a similar lawsuit filed several years ago by Chesebrough-Pond's against Venture Stores, O'Fallon, Mo., and other private-label suppliers over packaging infringement on its Vaseline Intensive Care Lotion. The case recently went to the U.S. Supreme Court, which ruled in favor of a U.S. Court of Appeals for the Federal Circuit decision against Chesebrough-Pond's claim of trade dress infringement.
Such tactics are being implemented "in the hopes that they [branded manufacturers] can someday intimidate retailers and manufacturers to move away from private label," Sharoff said.
In a recent telephone interview with SN, Tracey Roballey, manager of public affairs at Chesebrough-Pond's, said Chesebrough is not trying to intimidate other manufacturers. "Chesebrough-Pond's has not engaged in harassing activities of any kind in this or any other issues. However, we will continue to take all legal actions necessary to defend our trademark and to prevent other manufacturers from passing off their products as ours," she said. Meanwhile, in an effort to take the focus of trade dress out of the legal arena, PLMA will conduct a consumer focus study during its Consumerama Conference June 21 and 22 in Chicago at the Marriott O'Hare.
The consumer focus session will attempt to find out what consumers actually see when they look at packaging.
Sharoff contends that it's possible to show that consumers are not confused by packaging similarities and can in fact make important distinctions between products that look alike.
"If there is confusion in the marketplace," said Sharoff, "the confusion rests with marketing people or brand managers of manufacturers who somehow are led to believe that if two things look alike, there is something evil and unlawful about it."
Sharoff pointed to the argument in the P&G lawsuit. The manufacturer didn't argue that five out of 10 consumers bought the private-label products over the P&G brands by accident and, therefore, deprived P&G of revenue, said Sharoff.
The argument was made that five out of 10 consumers who bought the private-label products mistakenly thought they were buying P&G brands instead.
"It's an esoteric argument that goes into the mind of the consumer and tries to establish what he thought he bought," Sharoff said.