In the 1938 case of Kellogg Company v. National Biscuit Company, the U.S Supreme Court ruled in favor of Kellogg over a dispute regarding the shape and name of their shredded wheat breakfast cereal. The National Biscuit Company (Nabisco) had previously held patents for both the pillow-shaped design and production process of shredded wheat but these had expired, allowing other companies to produce similar products. Nabisco argued that despite this expiration, they retained exclusive rights to the product's shape as it was associated with them by consumers - essentially claiming trademark infringement against Kellogg who were producing a visually identical product under an almost identical name ("Shredded Wheat"). However, Justice Owen Roberts writing for majority stated that upon patent expiration "the article...may be made and sold by whoever chooses to do so" including use of its generic name "shredded wheat". Furthermore he noted that since Nabisco did not create or popularize this term nor was there any intent on behalf of Kellogg’s to deceive customers into thinking they were buying Nabisco’s product; therefore no unfair competition existed.

In the dissenting opinion for Kellogg Company v. National Biscuit Company, it was argued that the majority's decision failed to adequately protect the interests of businesses in their unique product designs and shapes. The dissent emphasized that Nabisco had spent significant resources developing and marketing its pillow-shaped Shredded Wheat biscuit, which consumers had come to associate with their brand specifically. By allowing Kellogg to produce a similar-looking product without any legal repercussions, they believed this would undermine trademark protections and unfairly penalize companies like Nabisco who have invested heavily in creating distinctive products. They also expressed concern about potential consumer confusion resulting from such similarities between competing products.