I know what you’re thinking. It’s about time that we Duets Bloggers shared our war stories on our past lives in seedy bars, taking on any unfortunate soul who might say the wrong thing at the wrong time, or just generally make us mad. After all, what else would you expect from a bunch of attorneys obsessed with guns, motorcycles, and, Disney villains, I guess (Derek, you’re not helping us with any street cred here). Unfortunately, dear readers, those aren’t the type of “bar fights” I’m talking about.
No, I’m talking about the similarly exciting and dangerous world of healthy snack bars – for when your life is too interesting and too ”on the go” for a real meal (“Sorry mom, no time for meatloaf, I’ll just grab a Kind Bar. I’m opening for AC/DC on top of a mountain in 20 minutes and I need some ‘lektrolytes“). Kind Bars are a major player on the healthy snack food scene, but they are constantly looking over their shoulder at their sinister arch-rival Clif. The two have been waging an epic battle featuring more than 17 vitamins, all natural ingredients, and more animosity than you’d expect.
The battle reached a new peak this year, however, when Kind Bars sued Clif Bars for trademark infringement over the new packaging for Clif’s MOJO brand snack bars. The complaint alleges that Clif has intentionally infringed Kind’s unique and distinctive trade dress. Samples of the packaging for both products are shown below:
Trade dress can be protected as a trademark, but it depends on the type of trade dress at issue. As a generally matter, product packaging can be inherently distinctive while product configurations would require a showing of secondary meaning. Additionally, trade dress rights will not extend to claimed trade dress features that are considered either generic or functional. However, even common and functional elements can be protectable if a number of non-protectable elements are combined in a way which creates a distinctive commercial impression.
Kind’s biggest issue with Clif’s packaging is that it has included a transparent window, which allows the consumer to see the actual bar itself. However, Kind has been careful not to claim rights in this feature as it could be (and should be) considered function. Instead, Kind softens its argument to merely claim protection to the overall combination of the features, such as using “opaque end caps,” selling a 40 gram bar, putting the product benefits on the front of the wrapper, and, of course, the clear, transparent element of the wrapper. For Kind’s sake, I’m hoping these legal arguments aren’t as transparent as their wrappers. It doesn’t look like there is much there.
And if you were thinking the same thing, well, you should feel pretty good about yourself. The judge presiding over the preliminary injunction proceeding seemed to agree, stating:
“At this stage I would be likely to find for defendant. I’ll leave you with that depressing thought for the weekend.”
The attorney for Kind replied with what, I can only assume, was a closing written by his client’s marketing department: “It only gives me a mountain to climb.”
Even if Kind loses the battle, at least they may have gotten a new tagline. They may want to put it on the back though, someone may already have trade dress rights in putting information on the front of products…