Trouble is brewing in Dunkin’ Donuts stores nationwide. As of April 30, 2016, Dunkin’ Donuts no longer offers Splenda brand sweetener to its customers.[1] A generic sweetener in similar pastel yellow packets has recently replaced Splenda in stores throughout the country.[2] Consequently, it appears that many customers, and possibly employees, are deceived as to what sweetener is contained in those yellow packets. Heartland Consumer Products, which owns Splenda, has sued Dunkin’ Brands, Inc. and Dunkin’ Donuts Franchised Restaurants in the United States District Court in Indianapolis.[3] Heartland is suing under both state and federal laws.[4] It argues that this misinformation is detrimental to Splenda’s intellectual property rights and its name.[5] It claims that without “sufficient cues” to inform customers, this change constitutes trade-dress infringement.[6]
While the product Dunkin’ Donuts is providing does not say anywhere on it that it is Splenda, trademarks are often so ingrained in peoples’ minds that simply providing these packets without further distinction causes confusion. The packets currently at Dunkin’ Donuts stores do not contain any brand name on the exterior, besides that of Dunkin’ Donuts, and affirmatively indicate that the product is manufactured by Chicago-based Marisant.[7] However, many avid coffee drinkers assume that the yellow packets of sweetener offered at any coffee shop are Splenda sweetener. Therefore, it is easy to see how customers who are used to receiving Splenda sweetener when they visit Dunkin’ Donuts may just assume that this is still the case. In fact, Dunkin’ Donuts had provided Splenda to its customers from 2005 until it made this switch in the last year.[8] Furthermore, employees have even informed customers that this generic product is Splenda.[9] To be fair, these employees may not be aware that that the product is a generic sweetener and that they are lying to customers, but Heartland, perhaps rightfully so, believes that this misinformation must be set straight.
While Heartland may get the injunction that it seeks, the interesting question will be if Dunkin’ Donuts decides to return to distributing Splenda products or if it will simply change the packaging of the generic product. Since many customers asked employees whether the product they were using was in fact Splenda, it is clear that this is a product that they care about and desire to consume. If this is the case, and Dunkin’ Donuts wishes to retain these customers, it is possible that authentic Splenda sweetener will make a return to Dunkin’ Donuts stores in the near future.
[1] Barbara Grizinic, Splenda Maker Sour Over Dunkin’s Sweetener in Trademark Suit, Reuters Legal (Nov. 9, 2016), https://1.next.westlaw.com/Document/I2d099e70a66d11e69a8693546f81f9ce/View/FullText.html
[2] Id.
[3] Id.
[4] Id.
[5] Id.
[6] Grizinic, supra note 1.
[7] Fatima Hussein, Splenda Lawsuit Hits Sour Note with Dunkin’ Donuts, The Indianapolis Star (Nov. 13, 2016), http://www.usatoday.com/story/money/nation-now/2016/11/13/splenda-lawsuit-hits-sour-note-dunkin-donuts/93771032/
[8] Grizinic, supra note 1.
[9] Id.