The recent news that Mondelēz International—parent company of Nabisco and producer of Oreos, Chips Ahoy, Nutter Butter, and many other snack goods—is suing Aldi, popular budget-friendly grocery store. This is not for just copying cookies. There's nothing illegal about producing such similar products, or else Nabisco would itself be in trouble for cloning Hydrox. Instead, it is for allegedly infringing Nabisco's products' trade dress.
Trade dress is a sister concept to trade mark which, instead of protecting a name or other mark, protects distinctive packaging. Like trademark, the test for trade dress infringement is likelihood of confusion. If you saw store brand "crème-filled chocolate sandwich cookies" on the shelves, is it likely that you would think them to be genuine Oreos?
Ultimately, this is a question for a jury, but I thought it would be interesting to present the following table of such packagings, along with other major store brands' so you can compare for yourself.
| Mondelēz | Aldi | Walmart | Kroger | Amazon | Dollar General |
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Bonus: Hydrox's packaging
The above is my understanding of the law. I am a lawyer, but I am not your lawyer. This post does not constitute legal advice. I make no warranty as to its accuracy or applicability to you. If you need a lawyer, get a lawyer. If you want me specifically, hire me.