What do vodka and pepper sauce have in common? Surprisingly, their packaging.
In January 2026, the McIlhenny Company, a Louisiana-based family business behind the world-famous Tabasco® pepper sauce, filed a lawsuit in a Texas federal court against spirit producer Stoli Group (USA) LLC, alleging that Stoli’s new “Halapeño Pepper” vodka infringes on the trade dress of its Tabasco® pepper sauce.
Supplied images: McIlhenny Tabasco sauce (L) and Stoli's new “Halapeño Pepper” vodka bottle (R)
To make matters hotter, McIlhenny alleges that it had previously explored a potential collaboration with Stoli for a co-branded vodka, one that ultimately never made it to the bottle. Despite this, McIlhenny claims Stoli proceeded to cook up its own pepper-flavoured vodka.
McIlhenny argues that Stoli’s vodka bottle resembles the iconic Tabasco bottle, from its shape, colour scheme, green neck label, and red cap to the broken concentric circle design in the centre of the bottle, with green and red sans serif font. McIlhenny argues that these similarities could lead consumers to believe that Stoli’s spicy vodka is connected to, authorised, or licensed by the famed hot sauce brand.
Spicing up the law: Trade dress protection in the US and South Africa
Unlike trade marks that protect words, names and logos, trade dress protects the visual appearance and overall look and get-up of a product, including its label and packaging.
In the United States, the Lanham Act permits the registration of trade dress provided it is both distinctive and non-functional. To succeed in an infringement claim, a plaintiff must establish that its trade dress qualifies for protection; and that the defendant’s use of a similar trade dress is likely to cause confusion among consumers as to its origin, sponsorship or affiliation.
In this matter, McIlhenny alleges that its Tabasco bottle, which has remained largely unchanged since the 1920s, meets these requirements. It has been extensively marketed for decades, is the subject of multiple trade mark registrations, and has become instantly recognisable to consumers.
McIlhenny therefore argues that the similarities in Stoli’s pepper-flavoured vodka packaging are such that an ordinary consumer would be likely to assume a commercial connection with Tabasco.
South African law provides similar protections, just framed a bit differently. Distinctive packaging and labels can be registered as trade marks. Even if it’s not registered, trade dress can still be protected through the common law doctrine of unlawful competition, for preventing passing-off.
To succeed in a claim of passing-off, the plaintiff must prove that it has established goodwill in its goods or services; that the defendant has made a misrepresentation likely to deceive or confuse consumers into believing that its goods are connected with or endorsed by the plaintiff; and that such misrepresentation has caused or is likely to cause damage.
South African courts have consistently recognised that a distinctive get-up can establish protectable goodwill, which can be protected against passing-off.
For instance, in the Swartkops Sea Salt (Pty) Ltd v Cerbos Ltd [2013] matter, the Eastern Cape High Court considered whether the overall get-up of Cerebos’ Buffalo braai salt misrepresented a connection with Swartkops’ long-established Marina braai salt.
The court examined whether the Marina packaging (the familiar orange bottle with a brown lid, for the braai aficionados) had acquired goodwill, whether the similarities in the respective packaging were likely to confuse or deceive ordinary consumers, and whether such confusion would cause damage to Swartkops’ goodwill.
Kim Rampersadh 27 Jun 2025 The court held that the correct enquiry is whether the overall impression of the products is likely to mislead the ordinary consumer rather than by conducting a side-by-side comparison of differences stating that:
The ordinary everyday buyer especially of commodities such as groceries [is] a person who has a general idea in his mind’s eye of what he is looking for, who, however, does not have an accurate representation of it, who will not have the advantage of seeing two products side by side.
Applied to this matter, the passing-off enquiry would be whether consumers associate the get-up with Tabasco (goodwill), whether the similarities would mislead consumers (misrepresentation), and whether this could harm Tabasco’s brand (damage).
This assessment would be guided by the overall impression created by the Tabasco and vodka products, rather than by minor differences in their respective get ups.
McIlhenny owns various trade marks registrations for the Tabasco bottle and elements of its trade dress in South Africa. These registrations cover, among other things, a range of goods, including sauces, clothing and non-alcoholic beverages.
To establish trade mark infringement, McIlhenny would need to show that the allegedly infringing packaging constitutes use in the course of trade, of a mark that is identical or confusingly similar to its registered trade marks, in relation to goods that are the same as, or similar to those for which the marks are registered, and that such use is likely to cause confusion or deception among consumers.
In addition, McIlhenny could rely on the well-known mark provisions of the Trade Marks Act (194 of 1993). Where a mark is well-known in South Africa, protection extends beyond the specific goods or services for which it is registered.
To rely on this provision, McIlhenny would need to show that the Tabasco mark enjoys a significant reputation in South Africa, and that use of similar packaging or branding on goods for which its trade marks are not registered, such as a chilli-flavoured vodka, would be likely to take unfair advantage of, or be detrimental to, the distinctive character or repute of the Tabasco mark, even where the goods are not identical.
Nishaat Slamdien 3 Mar 2025 Heat up your IP strategy: Protecting IP across collabs and line extensions
A key theme in the lawsuit is that Tabasco’s trade dress is not limited to hot sauce. McIlhenny has long licensed its trade dress across a wide range of products, including salad dressings, snacks, apparel and cosmetics.
Consumers have therefore become accustomed to seeing the Tabasco trade dress across different product categories. Some examples are shown below:
Supplied images: Examples of the wide range of products to which McIlhenny has licensed its Tabasco trade dress
This strengthens the argument that consumers would reasonably assume that a similarly packaged chilli flavoured vodka is an authorised Tabasco product extension.
From a brand protection perspective, the case is a useful reminder that businesses should not only protect trade marks and trade dress of existing products, but also for plausible line extensions and collaborations into which they could realistically expand.
By anticipating how a brand may grow or collaborate with others, companies can use intellectual property protection proactively to prevent imitation when it arises in future.
Lessons in every label
This case demonstrates that packaging is more than a marketing device; it is a core component of a brand’s IP. Across jurisdictions, from the US to South Africa, the principle is the same: a product’s appearance can function as a valuable asset, and copying or imitating features of a product’s packaging can land competitors in hot water.
As the dispute heats up, we are reminded of the commercial power of trade dress and the risks that arise when brand boundaries are tested.
For businesses operating in crowded and increasingly converging markets, careful consideration of packaging and trade mark strategy remains essential to preserving goodwill and brand integrity.
One thing’s for certain, it will be worth keeping an eye on the bottle to see how the judgment finally pours out.
Companies looking to protect their products should also view trade dress and trade mark protection as part of a broader, forward-looking IP strategy.
This includes registering distinctive packaging and labels as trade marks, not only for products they currently sell, but also for realistic line extensions and adjacent product categories they may expand into over time.
A bit of foresight at the start can help ensure that a brand’s growth doesn’t come with an unwelcome lawsuit burn.
