This past Summer Kroger filed a suit against German grocer and new-comer to the US market, Lidl. The suit alleged that Lidl’s private label name “Preferred Selection” had infringed on Kroger’s private label moniker, “Private Selection”. I watched this story closely because in an increasingly crowded private label space I was very curious about how a court would interpret trade dress and what metrics would be established to constitute differentiation.

Ultimately, the case was dismissed. Without knowing the full details of the dismissal I have to believe there was not enough evidence to prove that Lidl’s private label branding infringed upon Kroger’s private label products.

Many things come to mind from this outcome, but mainly: two private label grocers have similar products, similar names and similar design. With jet.com entering private label to take on Amazon and just about every grocer on the planet heavily investing in their own house brands—at what point is Grocer X’s private label product more enticing than Grocer Z’s?

What will define a successful program is going to come down to “if you remove the logo, can the customer still identify the brand?”

A typical private label life-cycle goes something like this:

A product goes through various stages of development and procurement. An in-house marketing team creates a design using the same typefaces being used by every other in-house marketing team. A photo is styled and placed on a nice, clean white background in the middle of the design. The copywriter crafts some saliva-inducing romance copy. And then, finally, the grocer’s logo is placed on the package.

Amazon. Kroger. Stop-N-Shop. Publix. Albertson’s. Lidl. Wegman’s. Target.

Now take away the grocer’s logo. A) Whose item is it? and B) Does it even matter?

The answers are A) Most likely no one can tell the difference and B) Hell yes, it matters.

Ultimately the game winner is going to come down to who has the better private label program—even if the customer is aware (or unaware) that the manufacturer that makes Albertson’s cookie also makes Wegman’s cookie. What will define a successful program is going to come down to “if you remove the logo, can the customer still identify the brand?” Impossible? No. For example, I know if I saw a Publix Oreo knock-off, and there was no Publix logo, I would still very easily be able to identify the quirky whimsical design as a Publix item.

Despite removing the logo of this package a customer can easily decode this item as uniquely Publix. The solid color field, simple type (often with little to no descriptor) and “reveal” of both the product and a shape visually tells the product’s story resulting in a compelling private label success.

It’s almost as if the actual product and package design need to become secondary to the X factor of an item–that is to say “the thing” that makes a bag of pretzels Instagramable. Why should Refinery29.com feature a private label grocery item from Kroger? What is the mechanism that encourages curiosity out of a customer? What might compel someone to tell their friend or family member about something as common as a bag of pretzels?

The private label industry is going to have to start thinking creatively and conceptually to be successful. Not just ‘creatively’ developing a product. Not just ‘creatively’ coming up with witty word-play or a fun design. Successful private label is going to have to dig deep to find solutions that create an authentic, meaningful, humorous and engaging narrative.

Ultimately, developing a creative and alternative approach to private label will provide the metrics needed to establish brand differentiation—(but maybe not in a court of law).