Allen Adamson is Co-Founder of Metaforce, Adjunct Professor at NYU Stern School of Business, and an expert witness in trademark, branding, and consumer perception disputes.
This column examines what the Mondelez v. Aldi trade dress lawsuit reveals about look-alike packaging, consumer perception, and the value built into distinctive brand assets.
Originally published September 1, 2026 in Law.com.
Aldi’s shoppers know exactly what they are buying. Mondelez v. Aldi will test whether trademark law can see, and price, what a package borrows.
Years ago at Landor, I spent my days helping companies like P&G, Kraft, and Mars design their packaging. The job was always the same. Find what makes the brand different and build that difference into the package, so the brand wins what P&G famously called the First Moment of Truth. That is the three to seven seconds at the shelf when a shopper reaches for one box instead of the one beside it. Brands spend decades and fortunes engineering the look that wins that moment. The law has a name for that look. It calls it trade dress.
A case now moving through federal court in Chicago will test how far the law can go to protect it. In May 2025, Mondelez sued Aldi, claiming the grocer’s store brand cookies and crackers copy the look of Oreo, Chips Ahoy, Nutter Butter, Wheat Thins and Ritz. The lawsuit lays the products out in side by side photographs. I have studied those photographs the way I once studied packaging for a living. Aldi changed every element and kept the brand. Trademark law asks whether shoppers were confused. The real question is what Aldi borrowed, and whether the borrowing has a price.
The case is heading toward a decision point. The judge gave both sides until Oct. 2 to finish gathering evidence from each other. Both companies have already told the court settlement talks make sense. They differ only on format. Mondelez wants a private mediator. Aldi wants to talk in front of the judge. Hold that thought.
Every Element Is Different. The Brand Is Identical.
Look closely at the Aldi package and the national brand beside it. The name is different. The color is a different shade. The typeface has changed. Even the cookie in the photo is shot at a different angle. And the package still reads, instantly, as the original.
That takes craft. A brand does not live in any single element of its package. It lives in the whole. Color, shape, layout and photograph combine into one impression the eye takes in before the mind reads a word. Change the parts and keep the pattern, and you keep the brand. That is the heart of Mondelez’s problem.
The Eye Shops Faster Than the Mind
Watch shoppers work a grocery aisle. Nobody stops to read. They move at walking speed, scanning for a familiar block of color and shape, and their hand is on the package before their mind has processed a single word. The glance lasts a second or two. It takes in the whole and skips the parts.
The screen made the glance even shorter. On Instacart or Amazon, the package shrinks to the size of a postage stamp. At that size the name is barely legible. The color and the layout do all the work. A package built to echo the leader on a shelf works even harder as a thumbnail. The shopper is not conducting a branding inventory. They are matching a pattern.
The Case Turns on a Brand Question
Strip the word Oreo off the blue box. Mondelez has to prove that what remains, the color, the layout, the cookie floating above the glass of milk, still points shoppers to one maker. That is not a legal question. It is a brand question. It is the difference between a package that decorates a product and a package that identifies one.
Aldi’s best answer is that nobody owns the basics. Cookies belong on a cookie box. Blue is a color. The answer is right about the parts. The case is about the whole.
The Shopper Knows Exactly What They Are Buying. That Is the Problem.
Trademark law, at its core, asks whether shoppers are likely to be confused. Aldi’s own slogan is “like brands, only cheaper.” The shopper reaching for the store brand package knows it is the store brand. They reach for it because it looks like the original.
The shopper is borrowing. For a few seconds at the shelf, the Aldi package stands in for everything Oreo spent a century building, and the shopper rewards it with the purchase precisely because of the resemblance. A survey built on the standard question, did you think this was an Oreo, can come back spotless for Aldi and still miss the mechanism. The shopper’s answer is no. The shopper’s hand says yes.
A Blue Box Is an Asset. Aldi Is Collecting the Rent.
The harm is a quiet transfer of value from the brand that built the look to the brand that borrowed it. Anyone can bake a cookie. Recognition took a century. When Aldi builds a package that sets off Oreo’s recognition, it is collecting on the one asset it skipped paying to build. That rent is what Mondelez is trying to charge.
This is why the case reaches past cookies. Store brands hit a record $282.8 billion in sales in 2025, grew nearly three times as fast as national brands, and set all time highs in market share. The look of the leaders has become the most valuable thing the followers can borrow.
Why Both Sides Are Already Talking About the Exit
Now, back to that fight over mediation. The case is speeding up on paper, yet both companies have already told the court settlement talks make sense. Both have too much to lose in public. If Mondelez pushes to a verdict and loses, it will have paid to write the manual, a federal court blessing a playbook every retailer in America can follow: change every element, keep the pattern. If Aldi loses, the look of a meaningful share of its American shelf is suddenly at risk. When both sides can lose that big, both start planning the exit while the fight is still heating up. Evidence gathering closes Oct. 2. The exit window opens the day after.
Aldi took the whole while changing every part, and the shopper rewarded the resemblance with the purchase. The verdict or the settlement check will tell us what that resemblance is worth.
