In August 2024, a woman wrote to Rebel Creamery to complain about her husband.
She had sent him to the store for Van Leeuwen ice cream and he came home with Rebel. "Your product was placed right next to Van Leeuwen and looked the same," she wrote. "I nearly did the same thing when I shopped! Later, my friend shared the same experience on the other side of the country!"
Two years later, that message turned up in a federal courtroom in Brooklyn, in a ruling that ordered Rebel to hand over $23.785 million and redesign its pints. On Friday, the company filed for Chapter 11 bankruptcy protection in Utah.
U.S. District Judge Eric Komitee ruled on July 16 that Rebel had infringed and diluted Van Leeuwen's trade dress, and that it had done so on purpose.
"The evidence at that trial left no doubt," he wrote.
Trade dress is the overall look of a product, not its name or logo. The court found Van Leeuwen's look came down to four things: a cardboard pint in a single color with a lid to match, soft pastel shades, black script lettering with a big first letter, and not much else on the carton.
The court found that combination distinctive enough to belong to Van Leeuwen, and that Rebel's pints came close enough to confuse shoppers.
Store employees mixed them up too, putting Rebel price tags on Van Leeuwen pints and shelving the brands together, according to trial evidence.
Van Leeuwen hired the design firm Pentagram in 2016 as it prepared to sell in grocery stores nationwide. Pentagram studied competing brands and came back with seven designs. The founders picked one.
Then, the firm kept everything: the briefs, the presentations, the design files and the concepts nobody chose. Natasha Jen, the Pentagram partner who ran the project, testified at the trial and told Inc. the firm still had all of it.
Austin and Courtney Archibald designed Rebel's packaging themselves, working in Adobe Illustrator between December 2017 and early 2018. Neither had training in graphic design, they told the court. Austin testified they saved no versions along the way, only the finished file.
Both testified they had never laid eyes on Van Leeuwen's ice cream when they made their design. Austin said he first saw it in July 2018, in a meeting with a buyer from Wegmans.
The judge was not persuaded, pointing among other things to the absence of any record showing how Rebel's design came about.
Austin Archibald went on a keto diet and started reading online forums, where he noticed two things: the groups kept growing, and the people in them missed ice cream. He was already making keto ice cream at home. The Archibalds funded the company through a Kickstarter campaign that showed no packaging at all.
Rebel's pints first appeared in a Los Angeles health food store in August 2018. Within about 18 months, they were in Publix, Kroger, Walmart, HEB, Fred Meyer, Safeway and 7-Eleven.
Van Leeuwen's founders found out in late 2018 or early 2019, when an employee spotted Rebel on social media. Ben Van Leeuwen testified they were shocked, and that the packaging looked almost exactly like theirs. They waited to sue, he said, because the company had little money and had never filed a lawsuit. They filed in 2021.
Van Leeuwen asked for $36.4 million. Komitee took Rebel's own sales figures for the pints and cut about a third, finding that some of those sales came from demand for keto ice cream rather than from the way the carton looked.
Rebel argued it should owe no more than $5 million, but Komitee found nothing in the record to support that figure.
Rebel appealed the ruling, then filed for bankruptcy two days later. Its bankruptcy paperwork lists the $23.785 million as a debt it disputes. The company reported about $13.78 million in assets against $23.85 million in liabilities, with roughly $5.22 million in cash, $2.59 million in receivables and $5.65 million in inventory.
Chapter 11 stops creditors from collecting while a company reorganizes. That buys Rebel time to appeal.
Komitee also ordered Rebel to redesign its pints so they give shoppers "a substantially different commercial impression." Unless the appeal undoes the ruling, the packaging has to change.