Case 1:21-cv-00283 Document 1 Filed 03/05/21 Page 1 of 19 PageID# 1

IN THE UNITED STATES DISTRICT COURT

FOR THE EASTERN DISTRICT OF VIRGINIA
ALEXANDRIA DIVISION

Nestlé USA, Inc., )

1812 N Moore St., )
Arlington, VA 22209, ) CIVIL ACTION NO.
)
Plaintiff, ) JURY TRIAL
) DEMANDED
v. )
)
Danone North America, LLC, )
12002 Airport Way )
Broomfield, CO 80021, )
)
Defendant. )
)

COMPLAINT

Plaintiff Nestlé USA, Inc. alleges as follows, upon actual knowledge with respect to itself

and its own acts, and upon information and belief as to all other matters:

NATURE OF THE ACTION

1. This is a civil action for trade dress infringement and unfair competition under

federal, state, and common law.

2. Nestlé is a leading maker of coffee creamers, including plant-based creamers such

as almond creamers. Nestlé invests significant resources in developing and advertising unique

branding and packaging designs for its creamers to ensure that consumers can easily identify its

market-leading products with ease and confidence. Seeking to trade off that association, and

freeride on the goodwill that Nestlé has worked hard to build in its creamers, Danone recently
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modified the packaging design for its competing creamers to copy and mimic the elements of

Nestlé’s packaging design, e.g.:

Nestlé’s Creamer Packaging Danone’s Creamer Packaging

Danone easily could have used different design elements for its packaging, as it has done in the

past. But it chose to copy the market leader. Danone’s intent is obvious and inescapable: to

gain an instant marketplace boost and acceptance by mimicking Nestlé’s packaging design and

elements. Nestlé thus seeks to enjoin Danone’s use of its copycat packaging designs and to

recover actual damages, Danone’s profits, and other relief, including attorneys’ fees and costs.

PARTIES AND JURISDICTION

3. Plaintiff Nestlé USA, Inc. is a Delaware corporation with its principal place of

business at 1812 N Moore St., Arlington, Virginia 22209.

4. Defendant Danone North America, LLC is a Delaware company with its principal

place of business at 12002 Airport Way Broomfield, Colorado 80021.

5. This Court has jurisdiction over the subject matter of this action pursuant to 15

U.S.C. §§ 1121 and 28 U.S.C. §§ 1331 and 1338(a) and (b). Because Nestlé is a citizen of the

State of Virginia, Defendant is a citizen of the State of Colorado, and the matter in controversy

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exceeds $75,000 exclusive of interest and costs, the Court also has jurisdiction under 28 U.S.C.

§ 1332. The Court has supplemental jurisdiction over Nestlé’s state-law claims pursuant to 28

U.S.C. § 1367(a) because they are substantially related to its federal claims and arise out of the

same case or controversy.

6. This Court has personal jurisdiction over Danone because it has purposefully

availed itself of the privilege of conducting business in Virginia. Danone offers, markets,

promotes, and sells its infringing products that are the subject of this lawsuit to consumers

located in Virginia. Moreover, Nestlé’s intellectual property is within the District and Nestlé is

being harmed in this District from Danone’s infringing activities.

7. Venue lies in this District pursuant to 28 U.S.C. § 1391(b) and (c) because a

substantial part of the events giving rise to Nestlé’s claims occurred in this District (and

elsewhere) and because the property that is the subject of the action—i.e., Nestlé’s asserted

intellectual property—is situated in this District, where Nestlé maintains its U.S. headquarters,

principal place of business, and creamer business.

NESTLÉ AND ITS NATURAL BLISS PRODUCTS

8. Nestlé is an affiliate company of the Nestlé Group—one of the world’s largest,

most successful, and well-known food and beverage companies. Through its wide assortment of

product offerings, Nestlé is committed to enhancing quality of life and contributing to a healthier

future for individuals, families, and communities.

9. In furthering its commitment, since as early as 2011, Nestlé has offered a line of

creamers under the Natural Bliss brand. Natural Bliss creamers are available in dairy and plant-

based varieties (including oat, almond, cashew, and coconut) in various flavors, including Sweet

Cream.

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10. Since the inception of the Natural Bliss brand and as early as 2011, Nestlé has

extensively used and promoted a packaging design with a distinct and uniform look and feel

across its Natural Bliss line of creamers—to ensure consistent branding and to distinguish its

creamers from others in the marketplace.

NESTLÉ’S NATURAL BLISS PACKAGING DESIGN TRADE DRESS

11. The overall appearance of the Natural Bliss packaging design includes at least the

following features—discussed and shown below—the combination of which creates a distinctive

trade dress that has come to be uniquely associated with Nestlé:

a. The cap and body of the bottle in the same color, e.g.:

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b. A color band covering the entirety of the bottle’s neck, listing the flavor

variety, e.g.:

c. Brand positioned at the front upper center of the body of the bottle, e.g.:

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d. Flavor icon positioned at the front lower center of the body of the bottle,

e.g.:

12. The combination of the (a) existence and position of the neckband and

(b) position of the “natural bliss” logo as described above is the subject of valid and subsisting

U.S. Registration No. 5510935, a copy of which is attached as Exhibit A (the “Registered Trade

Dress”):

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13. The Registered Trade Dress is owned by Société des Produits Nestlé, S.A., who

has licensed the use of this registration and other related intellectual property exclusively to

Nestlé in the United States with the right to enforce the licensed rights against third parties.

NESTLÉ SALES AND PROMOTION OF ITS

NATURAL BLISS TRADE DRESS

14. Nestlé’s Natural Bliss creamers—identified by the Natural Bliss Trade Dress—

have enjoyed substantial commercial success.

15. Nestlé’s Natural Bliss creamers are sold through a variety of retail means,

including regional and national online and brick-and-mortar stores, like Walmart, InstaCart,

Target, FreshDirect, Safeway, Amazon, Sam’s Club, Harris Teeter, HyVee, Giant, Food Lion,

Sprouts, and ShopRite.

16. Nestlé has advertised and promoted its Natural Bliss creamers through virtually

every available type of media, including its website (www.naturalbliss.com), print, television,

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coupons, store displays, and social media (e.g., Facebook, Twitter, Instagram, and Pinterest). A

few examples of Nestlé’s advertising and promotional efforts are shown below:

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17. Each year, Nestlé spends millions of dollars advertising and promoting its Natural

Bliss creamers with the Natural Bliss Trade Dress.

18. As a result of its distinctive nature and strength, use across Nestlé’s Natural Bliss

creamer line, significant commercial success, widespread advertising, and long-standing and

extensive publicity, Nestlé’s Natural Bliss Trade Dress is widely known and recognized.

DANONE’S WRONGFUL ACTIVITIES

19. As recent as January 2017, Danone offered a line of almond-based coffee

creamers in a carton, like the one shown below.

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20. Since then, Danone has updated the packaging of its almond creamers to look

progressively more like Nestlé’s Natural Bliss packaging, e.g.:

Nestlé’s Natural Bliss Trade Dress Danone’s Packaging

21. Most recently, Danone modified the packaging for its almond creamers to come

even closer to the Nestlé Natural Bliss packaging (the “Unauthorized Packaging”), e.g.:

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22. Danone’s Unauthorized Packaging conveys the same commercial impression as

Nestlé’s Natural Bliss Trade Dress by incorporating many of the same elements, e.g.:

a. The cap and body of the bottle in the same color, e.g.:

Nestlé’s Natural Bliss Trade Dress Danone’s Unauthorized Packaging

b. A color band covering the entirety of the bottle’s neck, listing the flavor

variety, e.g.:

Nestlé’s Natural Bliss Trade Dress Danone’s Unauthorized Packaging

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c. Brand positioned at the front upper center of the body of the bottle, e.g.:

Nestlé’s Natural Bliss Trade Dress Danone’s Unauthorized Packaging

d. Flavor icon positioned at the front lower center of the body of the bottle,

e.g.:

Nestlé’s Natural Bliss Trade Dress Danone’s Unauthorized Packaging

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23. Like Nestlé, Danone uses its Unauthorized Packaging across an assortment of

flavors, as shown below.

24. Danone’s almond creamers compete directly with Nestlé’s Natural Bliss

creamers, are sold through the same retailers (including HyVee, InstaCart, Giant, Target,

Safeway, Food Lion, and Sprouts), and are even sold on the same shelves.

25. Danone’s and Nestlé’s creamers are also advertised the same ways, including via

in-store displays, online, and through social media.

26. Nestlé objected to Danone’s use of the Unauthorized Packaging via demand

letters on August 31, 2020 and October 2, 2020, but Danone has refused to stop its unauthorized

uses.

INJURY TO NESTLÉ AND THE PUBLIC

27. Danone’s uses of the Unauthorized Packaging are likely to cause confusion,

mistake, and deception as to the source or origin of Danone’s products, and are likely to falsely

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suggest a sponsorship, connection, or association between Danone, its creamers, and/or its

commercial activities with Nestlé, its Natural Bliss Trade Dress, and/or its creamers.

28. Danone’s acts, as described above, have damaged and irreparably injured and, if

permitted to continue, will further damage and irreparably injure Nestlé and its Natural Bliss

Trade Dress.

29. Danone’s acts, as described above, have damaged and irreparably injured and, if

permitted to continue, will further damage and irreparably injure the public, who has an interest

in being free from confusion, mistake, and deception.

30. Danone has acted knowingly, willfully, in reckless disregard of Nestlé’s rights,

and in bad faith, as evidenced in part by Danone’s obvious copying and continued use of the

Unauthorized Packaging in the face of Nestlé’s objection.

FIRST CLAIM FOR RELIEF

Trade Dress Infringement, False Designation
of Origin, Passing Off, and Unfair Competition
Under Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a)

31. Nestlé repeats and re-alleges each and every allegation set forth in Paragraphs 1

through 30 of this Complaint.

32. Nestlé’s Natural Bliss Trade Dress is inherently distinctive and acquired

secondary meaning before Danone’s use of the Unauthorized Packaging based on, among other

things, extensive nationwide use, promotion, marketplace success, and recognition.

33. Danone’s uses of the Unauthorized Packaging, as described above, are likely to

cause confusion, or to cause mistake, or to deceive as to the origin, sponsorship, or approval of

Danone, its goods and services, and/or its commercial activities by or with Nestlé, and thus

constitute trade dress infringement, false designation of origin, passing off, and unfair

competition in violation of Section 43(a) of the Lanham Act, 15 U.S.C. § 1125(a).

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SECOND CLAIM FOR RELIEF

Trade Dress Infringement Under
Section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1)

34. Nestlé repeats and realleges each and every allegation set forth in Paragraphs 1

through 33 of this Complaint.

35. Danone’s uses in commerce of unauthorized reproductions, copies, and colorable

imitations of Nestlé’s Registered Trade Dress in connection with the offering for sale and

advertising of goods are likely to cause confusion, or to cause mistake, or to deceive, in violation

of Section 32(1) of the Lanham Act, 15 U.S.C. § 1114(1).

THIRD CLAIM FOR RELIEF

Trade Dress Infringement and Trademark Infringement
Under Virginia Code § 59.1-92.12
36. Nestlé repeats and realleges each and every allegation set forth in Paragraphs 1

through 35 of this Complaint.

37. Danone’s unauthorized uses of reproductions, copies, or colorable imitations of

Nestlé’s Natural Bliss Trade Dress in connection with the sale, offering for sale, distribution, or

advertising of goods in a manner likely to cause consumer confusion, mistake, or deception as to

the source or origin of Danone, its trade dress, or its products, constitute trademark infringement

under Virginia Trademark and Service Mark Act § 59.1-92.12, et seq.

38. Danone has committed the acts described above with knowledge of and intent to

cause confusion or mistake or to deceive.

FOURTH CLAIM FOR RELIEF

Trade Dress Infringement, Trademark Infringement,
and Unfair Competition Under Virginia Common Law
39. Nestlé repeats and realleges each and every allegation set forth in Paragraphs 1

through 38 of this Complaint.

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40. Danone’s actions, as described above, are likely to cause confusion, or to cause

mistake, or to deceive as to the origin, sponsorship, or approval of Danone, its products, and/or

its commercial activities by or with Nestlé such that Danone’s acts constitute infringement of

Nestlé proprietary rights in its Natural Bliss Trade Dress, misappropriation of Nestlé’s goodwill

in that Trade Dress, and unfair competition under Virginia common law.

JURY DEMAND

Pursuant to Fed. R. Civ. P. 38, Nestlé respectfully demands a trial by jury on all issues

properly triable by a jury in this action.

PRAYER FOR RELIEF

WHEREFORE, Nestlé respectfully requests that this Court enter judgment in its favor on

each and every claim for relief set forth above and award it relief, including the following:

A. An Order declaring that Danone’s uses of the Unauthorized Packaging infringe

Nestlé’s Natural Bliss Trade Dress and Registered Trade Dress and constitute unfair competition

under federal and state law, as detailed above;

B. A permanent injunction enjoining Danone and its employees, agents, partners,

officers, directors, owners, shareholders, principals, subsidiaries, related companies, affiliates,

distributors, dealers, and all persons in active concert or participation with any of them:

1. From using, registering, or seeking to register the Unauthorized Packaging

in any form, including in connection with any other wording or designs, and from using

any other trade dresses, logos, designs, designations, or indicators that are confusingly

similar to Nestlé’s Natural Bliss Trade Dress and Registered Trade Dress;

2. From representing by any means whatsoever, directly or indirectly, that

Danone, any products with the Unauthorized Packaging, or any activities undertaken by

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Danone, are associated or connected in any way with Nestlé or sponsored by or affiliated

with Nestlé in any way; and

3. From assisting, aiding, or abetting any other person or entity in engaging

in or performing any of the activities referred to in subparagraphs B(1)-(2).

C. An Order directing Danone to destroy all products, packaging, signage,

advertisements, promotional materials, stationery, forms, and/or any other materials and things

that use, contain, or bear the Unauthorized Packaging;

D. An Order directing Danone to, within thirty (30) days after the entry of the

injunction, file with this Court and serve on Nestlé’s attorneys a report in writing and under oath

setting forth in detail the manner and form in which Danone has complied with the injunction;

E. An Order requiring Defendant to account for and pay to Nestlé any and all profits

arising from the foregoing acts, and increasing such profits, in accordance with 15 U.S.C. § 1117

and other applicable laws;

F. An Order requiring Defendant to pay Nestlé damages in an amount as yet

undetermined (and including prejudgment and post-judgment interest) caused by the foregoing

acts, and trebling such damages in accordance with 15 U.S.C. § 1117 and other applicable laws;

G. An Order requiring Defendant to pay Nestlé all its litigation expenses, including

reasonable attorneys’ fees and the costs of this action pursuant to 15 U.S.C. § 1117 and other

applicable laws;

H. An Order requiring Defendant to pay Nestlé punitive damages for trademark

infringement and unfair competition under Virginia common law; and

I. Other relief as the Court may deem appropriate.

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Dated: March 5, 2021 Respectfully submitted,

/s/ Anna B. Naydonov_____________

Anna B. Naydonov (Bar No. 80101)
Douglas A. Rettew
(pro hac vice application forthcoming)
Sydney English
(pro hac vice application forthcoming)
FINNEGAN, HENDERSON, FARABOW,
GARRETT & DUNNER, L.L.P.
901 New York Avenue, N.W.
Washington, D.C. 20001-4413
(202) 408-4000 (phone)
(202) 408-4400 (fax)

Email: [email protected]
Email: [email protected]
Email: [email protected]

Attorneys for Nestlé USA, Inc.

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JS 44 (Rev. 10/20) CIVIL COVER
Case 1:21-cv-00283 Document 1-1 FiledSHEET
03/05/21 Page 1 of 2 PageID# 20
The JS 44 civil cover sheet and the information contained herein neither replace nor supplement the filing and service of pleadings or other papers as required by law, except as
provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is required for the use of the Clerk of Court for the
purpose of initiating the civil docket sheet. (SEE INSTRUCTIONS ON NEXT PAGE OF THIS FORM.)
I. (a) PLAINTIFFS DEFENDANTS
Nestlé USA, Inc. Danone North America, LLC
(b) County of Residence of First Listed Plaintiff Arlington County, VA County of Residence of First Listed Defendant Broomfield County, CO
(EXCEPT IN U.S. PLAINTIFF CASES) (IN U.S. PLAINTIFF CASES ONLY)
NOTE: IN LAND CONDEMNATION CASES, USE THE LOCATION OF
THE TRACT OF LAND INVOLVED.

(c) Attorneys (Firm Name, Address, and Telephone Number) Attorneys (If Known)
Anna B. Naydonov, Esq.
FINNEGAN, HENDERSON. FARABOW. GARRETT &
DUNNER. LLP
II. BASIS
901 OF NewJURISDICTION
York Ave., NW,Washington,
(Place an “X” in OneD.C. 20001
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(For Diversity Cases Only) and One Box for Defendant)
(202)408-4000
1 U.S. Government ✖ 3 Federal Question PTF DEF PTF DEF
Plaintiff (U.S. Government Not a Party) Citizen of This State ✖ 1 1 Incorporated or Principal Place ✖ 4 4
of Business In This State

2 U.S. Government 4 Diversity Citizen of Another State 2 ✖ 2 Incorporated and Principal Place 5 ✖ 5
Defendant (Indicate Citizenship of Parties in Item III) of Business In Another State

Citizen or Subject of a 3 3 Foreign Nation 6 6

Foreign Country
IV. NATURE OF SUIT (Place an “X” in One Box Only) Click here for: Nature of Suit Code Descriptions.
CONTRACT TORTS FORFEITURE/PENALTY BANKRUPTCY OTHER STATUTES
110 Insurance PERSONAL INJURY PERSONAL INJURY 625 Drug Related Seizure 422 Appeal 28 USC 158 375 False Claims Act
120 Marine 310 Airplane 365 Personal Injury - of Property 21 USC 881 423 Withdrawal 376 Qui Tam (31 USC
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of Veteran’s Benefits 350 Motor Vehicle 370 Other Fraud 710 Fair Labor Standards Act of 2016 (15 USC 1681 or 1692)
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Conditions of
Confinement
V. ORIGIN (Place an “X” in One Box Only)
✖ 1 Original 2 Removed from 3 Remanded from 4 Reinstated or 5 Transferred from 6 Multidistrict 8 Multidistrict
Proceeding State Court Appellate Court Reopened Another District Litigation - Litigation -
(specify) Transfer Direct File
Cite the U.S. Civil Statute under which you are filing (Do not cite jurisdictional statutes unless diversity):
15 U.S.C. §§ 1121 and 28 U.S.C. §§ 1331 and 1338(a) and (b)
VI. CAUSE OF ACTION Brief description of cause:
Trade Dress Infringement, False Designation of Origin, Passing Off, and Unfair Competition
VII. REQUESTED IN CHECK IF THIS IS A CLASS ACTION DEMAND $ CHECK YES only if demanded in complaint:
COMPLAINT: UNDER RULE 23, F.R.Cv.P. JURY DEMAND: ✖ Yes No
VIII. RELATED CASE(S)
(See instructions):
IF ANY JUDGE DOCKET NUMBER
DATE SIGNATURE OF ATTORNEY OF RECORD
Mar 5, 2021 /s/ Anna B. Naydonov
FOR OFFICE USE ONLY

RECEIPT # AMOUNT APPLYING IFP JUDGE MAG. JUDGE

 Case 1:21-cv-00283 Document 1-1 Filed 03/05/21 Page 2 of 2 PageID# 21
JS 44 Reverse (Rev. 10/20)

INSTRUCTIONS FOR ATTORNEYS COMPLETING CIVIL COVER SHEET FORM JS 44

Authority For Civil Cover Sheet

The JS 44 civil cover sheet and the information contained herein neither replaces nor supplements the filings and service of pleading or other papers as
required by law, except as provided by local rules of court. This form, approved by the Judicial Conference of the United States in September 1974, is
required for the use of the Clerk of Court for the purpose of initiating the civil docket sheet. Consequently, a civil cover sheet is submitted to the Clerk of
Court for each civil complaint filed. The attorney filing a case should complete the form as follows:

I.(a) Plaintiffs-Defendants. Enter names (last, first, middle initial) of plaintiff and defendant. If the plaintiff or defendant is a government agency, use
only the full name or standard abbreviations. If the plaintiff or defendant is an official within a government agency, identify first the agency and then
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(c) Attorneys. Enter the firm name, address, telephone number, and attorney of record. If there are several attorneys, list them on an attachment, noting
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II. Jurisdiction. The basis of jurisdiction is set forth under Rule 8(a), F.R.Cv.P., which requires that jurisdictions be shown in pleadings. Place an "X"
in one of the boxes. If there is more than one basis of jurisdiction, precedence is given in the order shown below.
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precedence, and box 1 or 2 should be marked.
Diversity of citizenship. (4) This refers to suits under 28 U.S.C. 1332, where parties are citizens of different states. When Box 4 is checked, the
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III. Residence (citizenship) of Principal Parties. This section of the JS 44 is to be completed if diversity of citizenship was indicated above. Mark this
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PLEASE NOTE THAT THERE IS NOT AN ORIGIN CODE 7. Origin Code 7 was used for historical records and is no longer relevant due to
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Date and Attorney Signature. Date and sign the civil cover sheet.