ENERGY BAR MAKERS LITIGATE OVER TRADE DRESS
Energy bar makers Clif Bar and Kind are duking it out in federal court over trade dress infringement.
Back in February, Kind LLC filed a complaint in the U.S. District Court for the Southern District of New York alleging trade dress infringement, deceptive acts and practices, and unfair competition. Kind alleged that the packaging for Clif Bar’s line of Mojo snack bars was deceptively similar to Kind’s packaging, resulting in consumer confusion.
Kind’s products have long featured a transparent window “through which its visually-inviting, delicious-looking bars could be seen.” The complaint alleges that after years of losing market share, Clif recently re-packaged its Mojo bars to feature some of the same elements of the Kind bar packaging, including a see-through panel across the bar, a similar horizontal stripe listing the flavor of the bar, and a distinctive bulleted list of healthy attributes, in a manner that was confusingly similar to the Kind packaging.
In June, the court denied Clif’s motion for a preliminary injunction. U.S. District Court Judge Kimba Wood told Kind that “many food bars, in addition to Kind and Mojo bars use one or more of the six elements that Kind seeks to protect here as its trade dress.” While there is little doubt that the packaging between the two bars is similar, or that the packaging of the Clif product has evolved over the last few years to look increasingly similar to the Kind product, it will be up to the court to determine whether or not the two energy bar packaging designs are so similar that they create customer confusion.
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