Kraft Still the Big Cheese: Seventh Circuit Affirms Injunction in Trademark Dispute over Cracker Barrel

by Foley Hoag LLP - Trademark, Copyright & Unfair Competition
Contact

cbocsCracker Barrel Old Country Stores are easy to spot off the highway, but you won’t be noticing the company’s products in grocery store aisles any time soon.

The Seventh Circuit Court of Appeals recently upheld a preliminary injunction barring Cracker Barrel Old Country Store, Inc. (“CBOCS”), from selling branded food products, particularly packaged hams, in grocery stores.  The appeals court found that the similarities between the CBOCS mark and that of Kraft Foods Group’s Cracker Barrel cheese products line could easily lead to consumer confusion.

KraftJudge Posner explained that allowing CBOCS to sell food products in the same outlets under a confusingly similar trade name posed a “particular danger” to Kraft, especially “if a consumer has a bad experience with a CBOCS product and blames Kraft, thinking it the producer.”  In such situations “a consumer who thinks Kraft makes bad hams may decide it probably makes bad cheese as well.”

The Seventh Circuit’s decision affirms an Illinois district court judge’s injunction against CBOCS that was originally granted in July of this year.

Ham and Cheese

Kraft Foods, based in Northfield, Illinois, has been selling cheese under the Cracker Barrel mark for nearly 60 years.   Although Tennessee-based CBOCS’s restaurants (in operation since 1969 with over 600 locations across the country) are usually accompanied by country-style stores that have been selling Cracker Barrel branded products for years, the two companies managed to exist peacefully for some time.  Things changed, however, when CBOCS decided to sell a variety of food products (not including cheese) in grocery stores under the “Cracker Barrel Old Country Store” logo.  Specifically, when Kraft learned that CBOCS planned to sell packaged ham using the CBOCS logo, it sued the company for trademark infringement.

The relationship between the two products, as well as grocery store sales practices, had a great deal of influence on the Seventh Circuit’s decision.  The  court noted that it is “not the fact that the parties’ trade names are so similar that is so decisive,” but rather their grocery store distribution channels and advertising practices.  In the brief period where CBOCS hams were sold in grocery stores before an injunction was issued, an online ad for Cracker Barrel Sliced Spiral Ham provided a link to a coupon for Kraft’s Cracker Barrel cheeses.  The court concluded that the products were also likely to appear in the same grocery store circulars and near one another in grocery store aisles, increasing the likelihood of consumer confusion.

Consumer Harm

The Seventh Circuit also noted that this confusion would undermine one of the main purposes of trademark law—reducing consumer search costs.  Since both products in this instance are “inexpensive—under $5” it is likely that “only very cost-conscious consumers are apt to scrutinize carefully the labels” in this case and verify the company of origin.  “Even savvy consumers might be fooled,” the appeals court wrote, “because they know that producers often vary the appearance of their trademarks.”While the Seventh Circuit’s decision is a continued blow to CBOCS’s efforts to license its products for sale in grocery stores, the appeals court did note that CBOCS could continue to sell its branded products without limitation at CBOCS restaurant locations and through its online store.

The case is Kraft Food Group Brands LLC v. Cracker Barrel Old Country Store Inc., 13-2559, U.S. Court of Appeals for the Seventh Circuit (Chicago).

 

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

© Foley Hoag LLP - Trademark, Copyright & Unfair Competition | Attorney Advertising

Written by:

Foley Hoag LLP - Trademark, Copyright & Unfair Competition
Contact
more
less

Foley Hoag LLP - Trademark, Copyright & Unfair Competition on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):
hide

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.

Security

JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.