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Cruel to be Kind: Kind Sues Clif Bar Over Transparent Wrapper

By Gabriella Khorasanee, JD on February 19, 2014 | Last updated on March 21, 2019

In the latest version of David v. Goliath, Kind, a small, but fast-growing company, is going up against Clif Bar, who has over 18% of the nutrition bar market as of 2012, reports Fortune. According to court papers filed on February 6, 2014, Kind is suing Clif for trademark infringement, à la trade dress violation, related to the new, very similar packaging of Clif's Mojo nutrition bars.

Trade Dress Similarities

Kind's packaging features a large clear band so consumers can see the product inside. Daniel Lubetzky, the company's founder stated, "Everything you see in our product is about transparency ... We were the first ones to [have a transparent wrapper] in our industry, and now we have a lot of people trying to copy our approach," reports Fortune.

Clif's Mojo Bar started out with a completely opaque wrapper, similar to other Clif bar wrappers and has evolved steadily to mimic Kind's unique transparent wrapper, as seen on page three of Daniel Lubetzky's Declaration submitted to the District Court for the Southern District of New York.

To bolster its claims, Kind also submitted a Declaration by George Mantis, president of a marketing and research firm that conducted studies that found "that an appreciable percentage of relevant consumers mistakenly believe" that Clif's Mojo Bar was made by the same company as the makers of Kind bars, primarily because of the similarities in packaging.

Last Wednesday, Kind filed a Notice of Motion, letting the court know that it will seek a preliminary injunction to prohibit Clif from producing, distributing, promoting or selling its Mojo bar with the new transparent wrapper.

Cruel to Be Kind

Lubetzky, well aware of sarcastic headlines playing on the word "kind," is quick to point out that "[b]eing Kind doesn't mean being stupid. It does not mean being taken advantage of ... I don't see life as an either-or approach," reports Fortune.

Meanwhile, Kind General Counsel and Vice President Justin Mervis stated, "KIND will vigorously defend its hard earned goodwill and brand value against anyone that seeks unfairly to dilute or detract from the KIND brand," adding "while KIND welcomes competition, KIND insists that such competition be fair and not based on consumer deception," reports Food & Beverage Magazine.

Sounds fair to us.

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