Weight Watchers (“WW”) maintains a system whereby food items are assigned points. Each customer of WW is assigned a permitted number of points per day. Frozen foods manufacturer used Weight Watchers points system on its wrappers but noted that the points system was a feature of WW’s system and a trademark owned by WW. WW sued claiming that the average customer was confused into thinking that WW had either calculated or verified the number of points identified by the manufacturer or otherwise endorsed the item. The court agreed and enjoined the manufacturer’s use of or reference to the points system unless the manufacturer made clear that it had calculated the points. The manufacturer changed its packaging to comply with this order, but the new packaging was very similar to the old. WW objected and asked the court to stop this packaging as well. The court refused. On appeal, the court found that the new disclaimer was too similar to the old and because the lower court’s order was vague, the manufacturer had not established that its packaging was not confusing to the public sufficient to satisfy the lower court’s order.
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