Intellectual Property Attorney

Clif Bar Sued For Trade Dress Infringment

As reported by Business Wire, KIND, LLC (“KIND”), a relative newcomer in the snack bar market, has filed a Complaint in federal court in New York against Clif Bar & Company (“Clif Bar”) over packaging for Clif Bar’s new line of “Mojo” trail mix bars. KIND has also sought a preliminary injunction, asking the Court to prevent Clif Bar from introducing its new packaging pending a trial. KIND’s Complaint is for trade dress infringement and related claims.

Trade Dress generally refers to the visual appearance of a product or its packaging that signifies the source of the product to consumers. Even if product packaging is not the subject of a trademark registration, it can nevertheless be protected under trade dress law, which prohibits the use of confusing similar packaging to that which has been previously used in commerce for the same goods.

In its Complaint, KIND alleges that Clif Bar’s new packaging incorporates several distinctive elements that KIND has utilized in the marketplace, including: (i) a transparent, rectangular front panel revealing a large portion of the bar; (ii) a horizontal stripe bisecting the transparent front panel containing the flavor of the bar in text; (iii) a text description of the product line (e.g. “Fruit & Nut”); (iv) a vertical black band, offset to the side of the package, containing a bulleted list of the bar’s ingredients; (v) opaque vertical bands, or end caps, at either edge of the product package; and (vi) a 40g size in a slender shape. KIND contends that due to declining performance of Clif Bar’s products in the marketplace, the company has orchestrated a series of packaging changes, each one designed to bring it closer to the packaging utilized by KIND.

While there are undoubtedly similarities between the parties’ packaging, the question before the Court is whether consumers will likely be confused as to the source of the products. Clif Bar will likely argue that certain of the cited elements are not distinctive, such as a transparent front panel, which is widely used in connection with product packaging. KIND will likely argue that the combination of elements adopted by Clif Bar evidences intent to deceive consumers into believing that Clif Bar’s products are associated with KIND.

In order to obtain a preliminary injunction, KIND will need to show that it is likely to succeed at trial, and also that it will suffer irreparable harm in the event that Clif Bar’s new packaging is introduced into the marketplace.

The case is KIND, LLC v. Clif Bar & Company, 14-cv-0770 (S.D.N.Y).

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