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The ruling carries a clear lesson for founders: Document your processes.
Rebel Creamery must redesign its pastel ice cream pints and surrender nearly $23.8 million in profits after a federal judge found that founders Austin and Courtney Archibald intentionally copied Van Leeuwen Ice Cream.
The July 16 ruling gives Van Leeuwen founders Ben Van Leeuwen, Pete Van Leeuwen, and Laura O’Neill a sweeping victory in a five-year fight over packaging that helped them grow from a Brooklyn ice cream truck into a national brand.
Ben Van Leeuwen testified that the founders were “shocked” when an employee showed them Rebel’s pints, but initially hesitated to sue because the company had little capital and had never brought a lawsuit.
The decision offers a costly warning for founders: Trademark law can protect the overall appearance of packaging even when its individual elements are common—and companies should preserve records showing how their designs were created.
Van Leeuwen sued Rebel in 2021, alleging that the Utah-based, low-sugar ice cream company copied four features of its dairy pints: monochromatic cartons with matching lids, pastel colors, oversized black script, and minimalist layouts.
Van Leeuwen introduced the design in 2016 after hiring Pentagram to prepare the brand for national wholesale distribution. The design firm researched competing brands and presented seven concepts before the founders chose the final look.
Natasha Jen, the Pentagram partner who led the project and testified in the case, tells Inc. that the firm retained its briefs, presentations, design files, rejected concepts, and successive rounds.
“Founders may think documentation is bureaucratic, but it is really a record of authorship and decision making,” Jen says. “Save what was presented. Save what was rejected. The process is part of the evidence.”
Elisha Barron, Van Leeuwen’s trial attorney, said the company believes its sales growth after the redesign and the press attention the packaging received also helped establish that the design was protectable.
The missing design trail
Rebel’s paper trail was thinner. The Archibalds testified that they created their packaging in Adobe Illustrator but produced no sketches, mockups, or earlier versions—only the completed design.
A Wegmans buyer warned Austin Archibald before Rebel’s first retail launch that the cartons resembled Van Leeuwen’s, according to the ruling. Rebel made no changes.
Judge Eric Komitee found that the similarities extended to the lettering, text placement, matching lids, and sparse layouts. The probability that Rebel independently arrived at all those choices was “infinitesimal,” he wrote, calling the founders’ account “clearly fabricated.”
When the original looks like the copycat
The court also found a risk of “reverse confusion”—Rebel’s expansion into major retailers could lead shoppers and buyers to believe Van Leeuwen was the imitator. A Publix buyer reportedly raised concerns about confusion before declining to stock Van Leeuwen.
A survey commissioned by Van Leeuwen found a 34.3 percent net-confusion rate. Mark Keegan, the consumer-research consultant retained by Van Leeuwen, says roughly one-third of surveyed ice cream shoppers associated Van Leeuwen with Rebel because of the packaging similarities.
The ruling doesn’t give Van Leeuwen ownership of pastel colors, cursive lettering, or minimalist design individually. It protects the overall combination and commercial impression of the packaging. Also, this district court decision doesn’t bind other courts. Rebel had not indicated whether it planned to appeal as of Monday, Barron says.
“Many courts will be hesitant to protect something they think is truly a contemporary aesthetic,” Rebecca Tushnet, a Harvard Law School trademark professor, tells Inc.
Tushnet says courts differ over what constitutes bad faith. Some treat deliberate copying as sufficient, while others look for an intent to cause confusion. In this case, she says, the Wegmans warning may have mattered.
“Juries and judges can be hostile to copycats, so the warning may have loomed large,” Tushnet says.
A $23.8-million warning
Because purchasing decisions can depend on price, flavor, diet preferences, and distribution, calculating the sales lost because of similar packaging can be difficult.
“Proving exactly which sales were diverted by allegedly infringing packaging can be exceptionally difficult,” says Phillip Brida, a managing director at accounting firm Whitley Penn. Courts may therefore use the defendant’s profits as a proxy, he says.
Komitee calculated Rebel’s profits from the affected pints at $35.5 million, then reduced the award by 33 percent because some demand came from Rebel’s keto and “better-for-you” positioning. The resulting $23.785 million judgment is not an estimate of Van Leeuwen’s losses.
For founders, the lesson begins long before litigation: retain drafts, document design decisions, and investigate warnings from retailers. Van Leeuwen arrived in court with a record of how its identity was created. Rebel arrived with the finished pint.
This post originally appeared at inc.com.
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