JTIP Blog

In April 2023, drama unfolded on Twitter, and it revolved around olive oil. Andrew Benin, the co-founder of Graza, a start-up single-origin olive oil brand that comes in two adorable green squeeze bottles, publicly called out rival Brightland for allegedly copying his squeezable olive oil idea. Mr. Benin wrote, “While friendly competition was always welcome, I do view this as a blatant disrespect and am choosing to voice my discontent.” In response, the internet angrily clapped back, as the internet does. One of these dissidents was Alison Cayne, the founder of Haven’s Kitchen, a cooking company. She wrote, “with all due respect, you did not create the squeeze bottle. Chefs and home cooks have been using it for decades.” Another commenter, Gabrielle Mustapich, a co-founder at Hardpops & Pilothouse Brands, added, “my mom was buying squeezy bottle olive oil in 2007 (and it wasn’t Graza).” 

Ms. Mustapich is right – squeeze bottles have been ubiquitous in chefs’ kitchens for years. However, they seem to be growing in popularity in home kitchens. While Graza may or may not be able to get credit for that societal shift, that doesn’t mean they shouldn’t get any recognition for doing things differently in the olive oil industry. That begs the question – if they were to sue Brightland, would they win? 

Though Graza doesn’t have a patent for its bottle or a trademark for anything except its name, official registration is not required to receive trade dress protection. Trade dress protection is provided by the Lanham Act, which allows the producer of a product a cause of action for the use of “any word, term, name, symbol, or device, or any combination thereof . . . which . . . is likely to cause confusion . . . as to the origin, sponsorship, or approval of his or her goods . . . . ” While trademarks are generally thought to cover things like brand names and their distinct designs, trade dress encompasses the design or packaging of a product or part of a product. For example, while the name “Nike” has a trademark, as does their “swoosh” symbol, the visual design of, say, a sweater or the box it comes in may unofficially deserve trade dress protection (209). 

While courts vary slightly on the elements of a protectable trade dress, they mainly agree that three factors must be met when analyzing the design of a product. First, the trade dress must be primarily non-functional. This requirement might seem counterintuitive since a company should be rewarded for making its product useful. However, the non-functionality requirement does not concern the invention of this aspect of the product, which is left to the world of patents. The non-functionality requirement promotes competition because other companies can make similar products with the same useful qualities without legal repercussions. 

The landmark 2001 Supreme Court case Traffix Devices v. Marketing Displays redefined the test for functionality. While circuits vary on their precise balancing tests, many follow that of the Ninth Circuit in Talking Rain Bev. Co. v. South Beach Bev. Co. from 2003: Whether advertising “touts the utilitarian advantages of the design,” whether “the particular design results from a comparatively simple or inexpensive method of manufacture,” whether the design “yields a utilitarian advantage,” and “whether alternative designs are available,” (603) – though, per Traffix, the “mere existence of alternatives does not render a product non-functional” (33-34). 

Next, the trade dress must be inherently distinctive or have acquired a secondary meaning to customers (which can be difficult to prove). Finally, the alleged infringement must create a likelihood of confusion among customers as to a product’s source. This inquiry is a step-by-step process, so if the product design is primarily functional, the inquiry ends, and the design’s trade dress cannot be protected. 

If Graza’s squeeze bottle is considered part of its product design rather than its packaging, it is functional and therefore not protectable trade dress. First, its own Instagram includes in its bio, “Fresh Squeezable Single Origin Olive Oil / As squeezed in @bonappetitmag.” The home page of its website features a video of a chef gingerly unscrewing the squeeze top and gracefully applying the oil to a hot pan. Second, the squeeze bottle itself is a simple design. Restaurants can bulk purchase 500 of these basic bottles, and the patent for the generic squeeze bottle, though not identical to Graza’s, is not terribly complex. Third and fourth, while alternative designs are available – most typical olive oils come in bulky containers with regular pour spouts – the squeeze spout is likely attractive to many consumers for its uniqueness and convenience. 

But what if the bottle is not considered to be the product’s design – that is, the appearance of the product itself – but rather the packaging – the container holding the product? According to the Wal-Mart Court, product design and packaging trade dress should be analyzed differently (215). The Court reasoned that, to a consumer, product packaging may identify the source of a product much more clearly than product design would (212-13). Therefore, the court says, a producer need not prove that a package has acquired secondary meaning to receive trade dress protection. 

The squeeze bottle, the pretty green color, and the charming label are all selling points for Graza, with one reviewer saying, “These olive oils are one of the few things I find attractive enough to leave out on my countertop.” Arguably, however, the main reason people are purchasing it is to get to the product inside – a quick Google search of “Graza review” brings up articles primarily reviewing the oil’s quality, not the bottle’s attractiveness of the bottle or the utility of the squeeze function. Consider the difference between a consumer purchasing an olive oil known to be delicious but in a poorly designed, ugly bottle – there, the bottle is the packaging for the product – as opposed to an olive oil known to be terrible but in a limited-edition, beautiful bottle – there, the bottle is the product, and there is no packaging. 

In Graza’s case, however, it can be difficult to know what’s really in the average consumer’s head, and in many ways, the “average consumer” is a myth. When Courts determine a product’s likelihood of confusion with another product or the likelihood that a consumer will see a product or its packaging and know what brand it comes from, they are necessarily guessing. The Wal-Mart Court tried to correct for that by advising courts in ambiguous product design/product packaging cases to lean toward finding that they are design, presumably to force greater proof of distinctiveness, etc., from producers. 

When it comes to Graza, though, it seems entirely possible that a typical, reasonable consumer would see the Brightland olive oil in a squeeze bottle and think: That’s just like the Graza bottle! Even if the trusty squeeze bottle has been ubiquitous in kitchens for decades, Graza may have brought it to the attention of home chefs everywhere. Similarly, though many olive oil bottles are dark green, their tall, skinny, matte green appearance with the pointed tip is unique enough – and their advertising aggressive and targeted enough – that many consumers (mostly those of the Gen Z and Millennial generations) would easily recognize the design as Graza if it flashed before their eyes. 

But, if we are to follow the Wal-Mart Court’s suggestion and reason that the bottle is Graza’s product design instead of packaging in this moment of ambiguity, Graza’s argument that they deserve trade dress protection – or, more simply, credit for coming up with the squeeze bottle olive oil idea – is weak. Andrew Benin may have realized such, as he, shockingly, issued a public Twitter apology retracting his earlier accusations.