For many years, Capri Sun had the pouched-beverage market cornered.  As children, we were attracted to shiny, colorful packaging and the novelty of drinking from malleable pouch (despite the repeated frustrating experiences trying to insert the drink’s plastic straw without punching a hole in the side of the pouch).

Fast forward to today.  Not all beverages served in pouches are sugary kids’ drinks– adult beverage companies have jumped on the idea.  Which brings us to a recent IP dispute of local interest.

As the Pittsburgh Tribune-Review reports, American Beverage Corp. (based in Verona, PA, just outside of Pittsburgh) filed a federal trademark lawsuit recently, claiming Diageo, which owns Captain Morgan, copied its single-serve frozen cocktails design, constituting patent and trade dress infringement.  The Complaint is available here.

I’m not a patent attorney, so I won’t go into the question of whether the Defendants’ design infringes on Plaintiff’s patent.  But this case does present an interesting question about trade dress.

Here’s a look at the products, side-by-side.

Generally speaking, trade dress will not be protected if it’s “functional.”  If trade dress didn’t have this limitation, competition would be inhibited.  The first person to think of serving beer in a bottle would “own” that concept, and so on and so on.

But trade dress protection is available to reward producers for creating innovative product designs (and to protect consumers from confusion when they rely on the distinctive appearance of a product to make a purchasing decision).  Most people can recognize a bottle of Coca-Cola by its shape, even if the label were removed.  So the question is, how unique, how distinctive, is the American Beverage pouch? Is it like the Coca-Cola bottle, or is it just another pouch?