Ornua has been unsuccessful in its case against Abbey Specialty Foods brought after Abbey started selling unsalted Irish butter in the US packed in colours which Ornua claimed would cause confusion among consumers.

The judge in the case in New York granted a summary judgement in favour of Abbey on the matters of trade dress infringement, unfair competition, and deceptive business practices, saying that “based on the undisputed facts in this case, the court finds that the two packages are not likely to be confused."

There is still the matter of trade dress infringement outstanding, and the judge said the parties will have to show cause as to why this claim “should not be dismissed for lack of subject matter jurisdiction.”

The case was brought by Ornua earlier this year against Abbey’s Tipperary unsalted Irish butter brand in the US. Ornua contended that the wrapper (referred to in the court case as “trade dress”) could cause confusion among consumers.

While Ornua argued that the Kerrygold wrapper is distinctive because they both use “the same silver foil background and uncluttered design on a package” the court found that the differences between the Kerrygold and Tipperary wrappers “vastly outweigh their similarities."

Tipperary brand unsalted butter.

Abbey had been warned when originally designing the packaging for their butter in 2020 by their Irish supplier, Lakeland, about Ornua’s specific trademarks and that Abbey needed to be careful not to “walk into the same issue as Lakeland did."

Documents released as part of the judgement showed that Ornua spent $226m (€206m) on advertisements for the Kerrygold brand between 2018 and 2022.

While there was no break out of those numbers for the money spent specifically on the unsalted butter product, Ornua’s sales of unsalted Kerrygold rose from $30.9m (€28.2m) in 2018 to $68.6m (€62.6m) in 2022.

Sales of Abbey’s Tipperary unsalted butter were described as “minimal." Ornua failed in its attempt to have its sales data, advertising expenditures, and market share data redacted from the judgement.