What You Own That Is Not on the Schedule

In July 2026, following a bench trial, a federal court in New York found that Rebel Creamery intentionally infringed and diluted Van Leeuwen’s distinctive ice cream packaging trade dress. The remedy included disgorgement of approximately $23.8 million in profits, an injunction, and a required packaging redesign.

The lesson is not that trade dress is categorically worth $23.8 million. It is that a consistently developed and recognized combination of packaging elements can become a protectable and commercially significant business asset.

But visual distinctiveness on its own is not enough. Protectability may turn on how the claimed trade dress is defined, whether it is distinctive and nonfunctional, whether consumers associate it with a single source, and whether the company can produce evidence supporting those conclusions.

That last requirement is the one businesses tend to discover too late. The look was developed organically. Nobody documented when it stabilized, how consistently it was used, or what customers came to associate with it. The asset existed. The record did not.

At some point, finding a cheaper version of someone else’s product stopped being bargain shopping and became a genre. Consumers celebrate it. Creators build audiences around it. Brands watch their packaging, presentation, and hard-earned recognition appear in places they never authorized.

Not every dupe is unlawful, and it is worth saying that plainly. But when a product moves close enough to the distinctive look, packaging, color scheme, or overall presentation of another brand, real trademark and trade dress questions can arise. The disputes involving Mondelēz and Aldi, and Lululemon and Costco, arose from exactly that question.

The question is not whether something is cheaper. It is whether one company is benefiting from consumer recognition that another company built.

Large brands have budgets for that fight. Smaller brands face the identical issue with a fraction of the resources, which makes documenting the asset early far more important for them, not less.

Michael Jackson did not only choreograph the forward lean in Smooth Criminal. He patented the mechanism that made it possible to perform live.

The original illusion relied on cables and harnesses, which worked for a video shoot but were impractical on stage. So Jackson, with Michael Bush and Dennis Tompkins, patented a solution: a specially designed shoe with a slot in the heel that engaged a post projecting up through the stage floor, allowing the performer to lean beyond their center of gravity and then disengage.

United States Patent No. 5,255,452, titled Method and means for creating anti-gravity illusion, granted in 1993.

It is a useful reminder that protectable subject matter does not announce itself. A patent does not have to concern a medical device or a semiconductor. It can protect a technical solution to a performance problem, a product problem, or a customer experience problem.

When you solve a practical problem in a genuinely new way, there may be protectable intellectual property in the solution, even when the result looks effortless. Especially then.