ST. LOUIS — The battle for shelf space in the competitive ready-to-eat (R.-T.-E.) breakfast cereal category is headed to court after Post Consumer Brands, L.L.C. on Sept. 25 filed a complaint against General Mills, Inc. alleging design patent infringement.
In the complaint filed in the U.S. District Court for the Eastern District of Missouri, St. Louis-based Post claims Minneapolis-based General Mills brought virtually the same plastic merchandising system design to market with the launch of its bagged cereal lineup as the system introduced in 2016 by Post.
“Over the course of several years, Post invested significant resources in the development of a new merchandising system design for its leading brand of bagged cereals, Malt-O-Meal,” Post noted in the lawsuit. “The Post Merchandising System has an open front and vertically-oriented, trapezoidal front panel that allows for bagged cereal to be better organized and displayed to consumers on store shelves, and also allows for consumers, store employees or others to easily see behind the front panel to discern the brand of cereal.”
According to Post, when it introduced the Post Merchandising System in 2016, no other merchandising system like it existed on the market.
“It was and is a revolutionary departure from previous shelf merchandising systems, including those used with bagged cereals,” Post said. “The innovative nature of the Post Divider has been recognized and appreciated not only from a consumer and retailer standpoint, but also by the United States Patent and Trademark Office, which on Sept. 26, 2017, issued U.S. Patent No. D798,091 (“the ‘091 patent”) to Post. (General Mills’) use of the ornamental design claimed in the ‘091 patent is an infringing and unauthorized use.
“This is an action for patent infringement under the patent laws of the United States, Title 35 of the United States Code, arising from (General Mills’) infringement of the ‘091 patent by its manufacture, use, offer for sale, sale in and/or importation into the United States of a copycat merchandising system for bagged food items, including bagged cereals.”
In the lawsuit, Post said the introduction of the Post Merchandising System has improved sales of its bagged cereals since June 2016.
“Because the Post Merchandising System optimizes the shelf space and functions well with shorter stacks of cereal bags, Post is able to add a fifth shelf to the bagged cereal section and stock 25% more bagged cereals on shelves than with the old wire merchandising system,” the company said. “The Post Merchandising System has improved the ‘shopability’ and appearance of Post’s bagged cereals for consumers and, in turn, has attracted new consumers and broadened Post’s customer base. The Post Merchandising System has also resulted in more repeat purchasers of Post’s bagged cereals. Additionally, the Post Merchandising System has driven positive visual impact at the shelf and helped to dispel the notion that Post’s bagged cereals are ‘inferior’ products as compared to boxed cereals. The ornamental design of the Post Divider, which was inspired by the logo, creates goodwill and brand awareness for Post.”
Post said it first became aware of General Mills using the bagged merchandising system in February, and in March, May and June it sent letters to the company expressing concern over the potentially infringing design.
Post is seeking injunctive relief.Responding to a request for comment, General Mills said, “The lawsuit was just filed, and we are looking into it.”