St. Louis Record

Monday, September 16, 2019

PetSmart's motion to dismiss Nestle Purina's trademark suit over cat litter packaging denied

Federal Court

By Charmaine Little | Aug 26, 2019


CAPE GIRARDEAU – A trademark dispute between two pet care companies over kitty litter packaging ended with the U.S. District Court for the Eastern District of Missouri’s Southeastern Division denying defendant PetSmart Inc.’s motion to dismiss the suit.

PetSmart was sued by Nestle Purina Petcare Co. over allegations of trade dress infringement, trademark infringement and unfair competition via the Lanham Act as well as Missouri common law. 

While PetSmart claimed the lawsuit is invalid because it never used the packaging in question to actually sell its products, Judge Stephen N. Limbaugh Jr. disagreed.


U.S. District Judge Stephen N. Limbaugh Jr.

“Defendant does not explain how the use of the trade dress plaintiff complains of was not ‘used in commerce’ when it was used to sell defendant’s Great Choice brand of cat litter on defendant’s website for a week,” Limbaugh wrote. “... Looking past the face of the complaint, as defendant asks the court to do, the week-long appearance of the trade dress in website sales reinforces the allegations that the trade dress was ‘used in commerce.’”

Limbaugh also noted that Nestle properly claimed that PetSmart has plans to change its trade dress to the one that’s in question in this case. Limbaugh denied PetSmart’s motion to dismiss.

Nestle accused PetSmart of redesigning cat litter wrapping to copy Nestle’s Tidy Cat’s packaging. In its lawsuit, Nestle alleged that its packaging featured two cat silhouettes along with yellow and black, yellow and red, white and green, and white and yellow along with dark green. It alleged PetSmart “copied all the elements of the Tidy Cats trade dress for each of the four formulations – including the silhouettes of multiple cats and the same colors corresponding to the same formulation,” according to the ruling. 

Nestle alleged that PetSmart imitated its feather design for its “lightweight” packaging, and that this could cause confusion for consumers. 

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