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Judge Not So Kind to Kind, Denies Preliminary Injunction

By Gabriella Khorasanee, JD on June 30, 2014 11:06 AM

Back in February, we wrote about Kind Snacks suing Clif for trademark infringement, à la trade dress violation, related to the new, very similar packaging of Clif's Mojo nutrition bars. Earlier this month, a federal judge denied Kind's motion for preliminary injunction.

But the biggest takeaway has to do more with social media, than trademark infringement. Read on to see why.

The Claim

Kind sued Clif when it unveiled new packaging for its Mojo bars, which borrowed some design elements (they say so themselves in emails submitted as evidence), including a transparent bar, with opaque ends. According to Daniel Lubetzky, the company's founder, "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.

You can see the similarities (and differences) below:

Kind v. Clif

Judge Denies Preliminary Injunction

Kind sued Clif in federal court, alleging trade dress violations, and sought a preliminary injunction. In reviewing the factors, the judge found that Kind "failed to establish a likelihood of success on the merits, or irreparable harm, or that the balance of hardships tips decidedly in its favor." The court found that the trade dress elements that Kind was looking to protect were all descriptive, rather than distinctive, as Kind argued, or generic, as Clif argued.

What's the Takeaway?

The takeway, you may expect, is to police your company's intellectual property. And while true, there was something else in the opinion that struck as particularly noteworthy: the use of a Facebook post and a Tweet as evidence. While the Judge found that the Facebook post did not support Kind's argument, she did nonetheless find that evidence admissible. Which means one thing for attorneys -- if you want to police your IP, you're going to have to police social media as well.

Does your company actively police social media for customer confusion? Let us know on Facebook for FindLaw for Legal Professionals.

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