McNeil Nutritionals sells Splenda, a highly successful national brand of the sweetener sucralose, in yellow boxes and bags with blue lettering. The name "Splenda" is on the front in italicized blue lettering, surrounded by a white, oval-shaped cloud. The boxes and bags displayphotographs of different physical props, such as a white cup of coffee with a 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. Heartland Sweeteners also sells its private-label and store brands of sucralose in yellow boxes and bags, with blue or black lettering (some outlined in white) and photographs of various items in which the sweetener can be used. McNeil Nutritionals sued Heartland for trade dress infringement.

Question: Does Heartland's packaging infringe McNeil's packaging? What other facts would you need to know? What steps could Heartland have taken to avoid a claim of trade dress infringement? [McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 511 F.3d 350 (3d Cir. 2007);McNeil Nutritionals, LLC v. Heartland Sweeteners, LLC, 566 F. Supp. 2d 378 (E.D. Pa. 2008).]