McNeil Nutritionals sells Splenda, a highly successful national brand of sucralose, in yellow boxes and bags with blue lettering; the name “Splenda” is on the front in italicized blue lettering, surrounded by a white, ovalshaped cloud. The boxes and bags display photographs of different physical props, such as a white cup of coffee and saucer, a glass and pitcher of iced tea, and a bowl of cereal and a scoop of Splenda behind a piece of pie on a plate. The defendant’s private label and store brands are also sold in yellow boxes and bags, with blue or black lettering (some outlined in white) and photographs of various items that can use the sweetener. Applying the following ten-factor test to determine whether there is a likelihood of confusion; does the defendant’s packaging infringe McNeil’s packaging? What other facts would you need to know? What steps could the defendant take to avoid a finding of infringement?

The ten factors are

(1) Degree of similarity between the plaintiff’s trade dress and the allegedly infringing trade dress;

(2) Strength of the plaintiff’s trade dress;

(3) Price of the goods and other factors indicative of the care and attention expected of consumers when making a purchase;

(4) Length of time the defendant has used the trade dress without evidence of actual confusion arising;

(5) Intent of the defendant in adopting its trade dress;

(6) Evidence of actual confusion;

(7) Whether the goods, although not competing, are marketed through the same channels of trade and advertised through the same media;

(8) Extent to which the targets of the parties’ sales efforts are the same;

(9) Relationship of the goods in the minds of consumers because of the similarity of function;

(10) Other facts suggesting the consuming public might expect the plaintiff to manufacture a product in the defendant’s market, or that the plaintiff is likely to expand into that market. [McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511 F.3d 350 (3d Cir. 2007).]